Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF CEDAR COUNTY Honorable Neal R.
Quitno, Special Judge
Steffen Rahmeyer, J. - Opinion Author
Dutcher ("Appellant") was convicted by a jury of
two counts of sodomy, committed upon the younger child
("Victim") of his former girlfriend and housemate;
Victim was nine years old at the time the abuse
began. Appellant brings three points on appeal;
however, we will begin with the third point for ease of
discussion. Appellant complains in his third point that
"propensity" evidence was admitted erroneously and
that the evidence was unfairly prejudicial. Appellant
complains that the State devoted the majority of the case to
the propensity evidence, they did not do it in a
dispassionate way, the jury was allowed to speculate that
Appellant was not charged for this alleged crime, and the
propensity evidence overshadowed the evidence of the charged
crime. The problem with Appellant's point and argument is
that it was not preserved because it was not presented to the
trial court in his motion for new trial. As a result, we
cannot address the merits of Appellant's arguments.
"An issue is not preserved for appellate review if the
issue is not included in the motion for a new trial."
State v. Clay, 533 S.W.3d 710, 718 (Mo. banc 2017).
motion for new trial, the only possible claims of error which
relate to the testimony of Victim's sister are contained
in two paragraphs. Paragraph number 5, which claims,
"The Trial Court erred in allowing the testimony of
[Victim] and T.L.T. as their credibility was insufficient and
therefore the Court should have ruled in favor of the
Defendant and entered a Judgment of Acquittal at the close of
State's evidence and at the close of all evidence."
Appellant also claimed, in paragraph number 8, "The
Trial Court erred in allowing the propensity evidence from
T.L.T. which was not credible and bolstered the testimony of
[Victim] the alleged victim even though T.L.T.'s previous
statements were inconsistent at best."
of these claims in the motion preserve Appellant's
current claim that the propensity evidence was unfairly
prejudicial. Although we acknowledge that Appellant did not
have the benefit of State v. Williams, 548 S.W.3d
275 (Mo. banc 2018), the constitutional provision clearly
states, "The court may exclude relevant evidence of
prior criminal acts if the probative value of the evidence is
substantially outweighed by the danger of unfair
prejudice." Mo. Const.art.1, § 18(c). Each of
Appellant's claims in Point III is a claim that the
probative value was substantially outweighed by the danger of
unfair prejudice; however, at the end of the trial, the trial
court did not have an opportunity to make an assessment of
that claim because it was not before it. We cannot convict
the trial court of error when the issue was not presented to
it. Point III is denied.
remaining two complaints involve Jury Instructions 7 and 6
because he complains that these verdict directors failed to
specify a particular incident or instruct the jurors that
they must unanimously agree on the same incident. Appellant
complains that both of the jury instructions were not
specific enough to allow a unanimous jury to find him guilty
of the offense because there were multiple allegations;
however, he did not object to the instructions and seeks
plain error review. He cites to State v.
Celis-Garcia, 344 S.W.3d 150, 155-56 (Mo. banc 2011),
for the proposition that "[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." "In such cases, the possibility exists that
jurors follow the trial court's instructions, yet
individually choose differing instances of the crime on which
they base the conviction, violating the defendant's right
to a unanimous verdict." State v. Armstrong,
560 S.W.3d 563, 570 (Mo.App. E.D. 2018).
Celis-Garcia does not assist Appellant.
acts were repeated, identical, non-distinct acts of abuse
within the time periods alleged in the respective verdict
directors so the jurors had no evidentiary basis on which to
distinguish between the identical acts, and there was no risk
that the jurors could have based the convictions on different
underlying criminal acts. State v. Walker, 549
S.W.3d 7, 11-12 (Mo.App. W.D. 2018); State v.
Armstrong, 560 S.W.3d at 572-74. We find no error, plain
or otherwise, in either of the Instructions. Points I and II
are also denied.
judgment is affirmed.
Burrell, P.J. - Concurs
W. Lynch, J. - Concurs
 Victim was born in February of 2001.
The Second Amended Information references time frames of
abuse between March and August 2010, and between August 2010
and June 2011. At the time the abuse began in March 2010,
Victim was nine years old.
 Evidence regarding Victim's older
sister was adduced via her own testimony and that of other
family members. She testified that Appellant engaged in
similar conduct with her when she was younger (10) but she
only talked about it years later ...