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State v. Beck

Court of Appeals of Missouri, Western District, First Division

June 26, 2018

STATE OF MISSOURI, Respondent,
v.
DERRY L. BECK, II., Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Ho norable Marco Roldan, Judge

          Before: Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Edward R. Ardini, Jr., Judges

          Lisa White Hardwick, Judge

         Derry 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.

         Factual and Procedural History

         Beck 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 her mother.

         Beck's 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.

         When 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."

         Afterwards, 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.

         Beck 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.

         When 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.

         On 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.

         Beck 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 time.

         Several 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.

         A.O. 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.

         An 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 moved out.

         A.O.'s 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.

         A.O. 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.

         The 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.

         The 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."

         During 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.

         Beck 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 through August.

         Beck 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.

         The 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.

         Analysis

         Point I -- Jury Instructions

         In 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.

         Pursuant 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 omitted).

         Article 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.

         In 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. The

         Court 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.

Id.

         The 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 (footnote omitted).

         Before 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 ...

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