Court of Appeals of Missouri, Western District, First Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Ho norable Marco
Before: Lisa White Hardwick, Presiding Judge, Thomas H.
Newton and Edward R. Ardini, Jr., Judges
White Hardwick, Judge
L. Beck, II, appeals from his convictions of three counts of
first-degree statutory sodomy and one count of first-degree
child molestation. He contends the verdict directors did not
ensure a unanimous verdict; the information was vague and
failed to state an offense; the State's conduct and
statements during closing arguments were improper; the court
erroneously allowed an expert to opine that the victim was
sexually abused; the court erroneously limited his ability to
cross-examine the victim about sexual abuse perpetrated upon
her by another person; and the court erroneously denied him a
hearing on his allegation of alleged juror misconduct. For
reasons explained herein, we affirm, in part, and reverse and
remand, in part.
and Procedural History
was the biological father of A.O., who was born on November
18, 2000, after Beck separated from A.O.'s mother. Beck
did not acknowledge that A.O. was his daughter until DNA
tests proved it when A.O. was four years old. A.O. lived with
primary residence was his mother's
("Grandmother") house in Blue Springs. At some
point after the DNA test, A.O. began visiting Grandmother and
Beck occasionally at Grandmother's house, but she did so
less frequently than her older brother and sister, who were
also Beck's children. After A.O. visited Beck, she never
wanted to talk with her mother about the visit.
A.O. was five or six years old and in preschool or
kindergarten, she was sleeping in the bedroom she usually
slept in at Grandmother's house while Beck was on the
computer in that room. A.O. saw that Beck was "looking
at pictures of women on the Internet." He told A.O. to
come over to him. Beck pulled down her pants, put his hands
on her hips, and put his penis in her anus. He then put his
penis in her mouth, his hands on her head, and told her to
"suck it like a lollipop." Beck told A.O.,
"This will be our little secret." A.O. thought Beck
was a "scary guy."
A.O. walked to the bathroom, where she encountered
Grandmother. Grandmother asked A.O. what Beck was doing. A.O.
told Grandmother that Beck was looking at pictures of naked
women on the Internet. Grandmother did nothing. A.O. believed
that, even if Grandmother had known what Beck was doing,
Grandmother would have allowed it to continue.
anally sodomized A.O. on five or six occasions. Beck also
continued to make her perform oral sex on him, "more
[times] than [she] can count." Some of the sexual abuse
occurred when she was alone in her bedroom, while other
incidents occurred when A.O. was sleeping in her sister's
room, while her sister was either sleeping or was not there.
On one occasion, A.O.'s little brother, who was one or
two years old at the time, was watching television with A.O.
in her bedroom when Beck came in and anally sodomized her. On
another occasion, when A.O. was sleeping in her sister's
room without her sister there, Beck came in the room around
2:00 a.m. A.O. tried to wrap herself in her covers, but Beck
anally sodomized her.
A.O. was eleven years old and her grandfather was visiting,
she was sleeping in a bedroom in the basement when Beck came
downstairs. He made her perform oral sex on him, anally
sodomized her, and tried to put his penis in her vagina, but
she struggled and was able to stop him.
another occasion, when A.O. was eleven or twelve years old,
in the fifth grade, and was sleeping in her sister's room
without her sister there, Beck made her perform oral sex on
him, anally sodomized her, placed his fingers in her vagina,
placed his mouth on and licked her vagina, and then placed
his penis against her vagina and tried to put his penis in
her vagina. Just the tip of Beck's penis went inside her
vagina because A.O. struggled and "wouldn't let
him." Beck asked her if she was a virgin. A.O. told him
that she was a virgin and that she hated him.
sexually abused A.O. for the last time when she was twelve or
thirteen years old. A.O. made a tentative disclosure of the
abuse, although not in detail, to her closest friend at that
years after the abuse stopped, Beck asked A.O. to go out to
dinner with him to celebrate her fifteenth birthday.
A.O.'s sister encouraged her to go, so A.O. went because
she did not want to "seem weird about it." During
the dinner, Beck apologized to her and asked if she could
ever forgive him for what he had done.
later disclosed the sexual abuse to her cousin, but A.O. made
her cousin promise not to tell anyone. When A.O. was telling
her cousin about the abuse, she seemed "distant, like
emotionless almost," which was contrary to her usually
happy and bubbly personality. A.O.'s cousin agreed not to
tell anyone, but she knew it was not right to keep it to
herself so she told a trusted teacher and a school counselor.
investigator from Children's Division contacted
A.O.'s mother and told her about A.O.'s statement
that Beck had sexually abused her. A.O. then told her mother
and sister about the abuse. A.O.'s sister, who was living
with Beck at Grandmother's house at the time, immediately
mother went to the police station and filed a police report.
The police requested that A.O. participate in a forensic
interview at Child Protection Center ("CPC").
During the interview, which was videotaped, A.O. described
several acts of sexual abuse that Beck committed against her
over the years at Grandmother's house.
was taken to Children's Mercy Hospital, where she
underwent testing for sexually-transmitted diseases and a
physical exam by Emily Killough, M.D., a doctor specially
trained in child sexual abuse. Before examining A.O.,
Killough reviewed A.O.'s forensic interview summary, met
with A.O. and a family member who was with her, and obtained
A.O.'s medical history. Killough found that A.O.'s
physical exam was normal. According to Killough, in the vast
majority of child sexual abuse cases where the abuse occurred
several years before it was reported, the physical exam is
normal because the mucosal tissue in the anogenital area
heals quickly and stretches easily and, if there were any
bruising, redness, or abrasions, they would be gone by the
time of the exam. Therefore, according to Killough, the
expected finding in a child sexual abuse case is a normal
physical exam. Based upon A.O.'s history, including her
disclosure of abuse, and the physical exam, Killough
diagnosed A.O. with child sexual abuse.
police arrested Beck. Following his arrest, Beck waived his
Miranda rights and gave a brief statement to a
detective. The interview was short because the officer
smelled alcohol on Beck.
State initially charged Beck with three counts of
first-degree statutory sodomy and one count of first-degree
child molestation. In each count, the State alleged that the
acts occurred "on or between November 18, 2005 and
November 17, 2014," which was when A.O. was between the
ages of five and thirteen. Prior to trial, the State filed an
amended information alleging that the act referenced in the
first count of statutory sodomy, which was Beck's placing
his genitals in A.O.'s anus, occurred "on or between
November 18, 2005 and November 17, 2012," which was when
A.O. was between the ages of five and eleven. The dates for
the acts referenced in the other counts remained the same. At
the close of all the evidence at trial, the State filed a
second amended information alleging that the acts referenced
in all four counts occurred "on or between November 18,
2005 and November 17, 2012."
the jury trial, Beck testified in his defense. He admitted
that he did not acknowledge A.O. to be his daughter prior to
the DNA test, and he admitted that he told A.O. that he did
not like her. Beck denied ever sexually abusing A.O. Beck
claimed that his apology to A.O. during her fifteenth
birthday dinner was for his telling her that he did not like
her and not for his having sexually abused her.
testified that he was either out of the state or the country
for significant periods of time between November 2005 and
November 2012. Specifically, Beck testified that, in 2005, he
was in Arizona during November and December; in 2006, he
lived with Grandmother only during the months of January and
February and was "on vacation" for the rest of the
year; in 2007, he was in dive school in Florida from March to
October; in 2008, he worked for six months as a diver in
Louisiana and then three months in Guam before he got sick
with tuberculosis and was hospitalized for two months; in
2009, he worked as a diver in Louisiana, Guam, and Costa Rica
from January until July or August; in 2010, he worked in
Alabama on the BP oil spill in April and was gone for six
months; and in 2011, he worked in Louisiana from January
brought in some of his dive logs to support his testimony
about where he was for a few of these time periods. Although
he claimed to have records to support where he was for all of
the time periods to which he testified, Beck did not bring
those records to court. Moreover, Beck admitted that that
there were several periods between November 2005 and November
2012 when he was staying at Grandmother's house and A.O.
was there. Beck also admitted that he did not tell the police
during his initial interview after his arrest that he was out
of the state and the country for periods of time between
November 2005 and November 2012.
jury found Beck guilty on all counts. The court sentenced him
to concurrent terms of twenty years in prison for each of the
three first-degree statutory sodomy counts and fifteen years
in prison for first-degree child molestation. Beck appeals.
I -- Jury Instructions
Point I, Beck contends the circuit court erred in submitting
the verdict directors for all four charges. He argues that
there was evidence of multiple acts pertaining to each count
of the second amended information, but the verdict directors
failed to specify a particular incident. He asserts that, by
failing to specify a particular incident, the instructions
did not ensure a unanimous jury verdict. Beck concedes that
he failed to object to the instructions at trial. Therefore,
review is for plain error only.
to Rule 30.20, this court has discretion to review
"plain errors affecting substantial rights . . . when
the court finds that manifest injustice or miscarriage of
justice has resulted therefrom." "For instructional
error to constitute plain error, the defendant must
demonstrate the trial court so misdirected or failed to
instruct the jury that the error affected the jury's
verdict." State v. Celis-Garcia, 344 S.W.3d 150, 154
(Mo. banc 2011) (internal quotation marks and citations
I, section 22(a) of the Missouri Constitution protects the
right to a unanimous jury verdict. Id. at 155.
"For a jury verdict to be unanimous, 'the jurors
[must] be in substantial agreement as to the defendant's
acts, as a preliminary step to determining guilt.'"
Id. (citations omitted). The issue of jury unanimity
may be implicated in "multiple acts" cases.
Id. "A multiple acts case arises when there is
evidence of multiple, distinct criminal acts, each of which
could serve as the basis for a criminal charge, but the
defendant is charged with those acts in a single count."
Id. at 155-56.
Celis-Garcia, the Court held that a defendant's
right to a unanimous jury verdict was violated when the
verdict directors failed to separately identify specific
instances of sodomy. Id. at 159. The victims in the
case identified "at least seven separate acts of
statutory sodomy that occurred at different times (some more
than three days apart) and in different locations"
within the house in which they lived with their mother, who
was the defendant, and her boyfriend. Id. at 156.
found that, "[d]espite evidence of multiple, separate
incidents of statutory sodomy, the verdict directors failed
to differentiate between the various acts in a way that
ensured the jury unanimously convicted [the defendant] of the
same act or acts." Id. Instead, the verdict
directors (one for each victim) allowed the jury to find the
defendant guilty of first degree statutory sodomy if the
jurors believed "'that between [specified dates] . .
. the defendant or [her boyfriend] placed her or his hand on
[the victim's] genitals. . . .'" Id.
The Court explained that the verdict directors were erroneous
because they allowed a finding of guilt when jurors may not
have unanimously agreed on the same specific act of sodomy:
This broad language allowed each individual juror to
determine which incident he or she would consider in finding
[the defendant] guilty of statutory sodomy. Under the
instructions, the jurors could convict [the defendant] if
they found that she engaged or assisted in hand-to-genital
contact with the children during an incident in her bedroom,
or on the enclosed porch, or in the shed,
or in the bathroom.
Court ruled that, in a multiple acts case, the
defendant's right to a unanimous verdict could be
protected by having either: (1) the State "elect[ ] the
particular criminal act on which it will rely to support the
charge or (2) the verdict director specifically describ[e]
the separate criminal acts presented to the jury and the jury
. . . instructed that it must agree unanimously that at least
one of those acts occurred." Id. at 157
applying the principles of Celis-Garcia to the
instructions in this case, we find that, contrary to
Beck's assertion, not all of the counts involved multiple
acts. "To establish a multiple acts case, there must be
evidence of multiple, distinct criminal acts"
charged in a single count. State v. Drake, 514 S.W.3d
633, 642 (Mo. App. 2017). Count III charged Beck with
first-degree statutory sodomy for placing his mouth on
A.O.'s vagina. The verdict director for Count III was
Instruction No. 11, and it stated, in relevant part:
As to Count III, if you find and believe from the evidence
beyond a reasonable doubt:
First, that on or between November 18, 2005 and November 17,
2012, in the County of Jackson, State of Missouri, the
defendant knowingly placed ...