FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
E. SCOTT, J.
Stuckley was convicted of sodomizing and molesting his
girlfriend's (now wife's) four-year-old child
("Victim"). Each of his three points on appeal
seeks plain-error review, two raising Celis-Garcia
complaints and one charging double jeopardy.
plain-error claim "places a much greater burden on a
defendant than an assertion of prejudicial error."
State v. Ralston, 400 S.W.3d 511, 520 (Mo.App.
2013). A defendant must show not only that the trial court
committed evident, obvious, and clear error, but also the
existence of manifest injustice or a miscarriage of justice.
State v. Mueller, 568 S.W.3d 62, 75 (Mo.App. 2019).
To prove plain instructional error, the defendant "must
demonstrate the trial court so misdirected or failed to
instruct the jury that the error affected the jury's
verdict." Celis-Garcia, 344 S.W.3d at 154
(citations and internal quotation marks omitted). Even clear
and obvious instructional error rarely works a manifest
injustice or miscarriage of justice demanding plain-error
reversal. State v. Parsons, 339 S.W.3d 543, 549
(Mo.App. 2011). The outcome of plain-error review depends
heavily on the facts and circumstances of each case.
Ralston, 400 S.W.3d at 520.
the facts and circumstances of this case, and particularly
how it was tried, Stuckley fails to convince us that anyone
committed evident, obvious, and clear error, or that modified
instructions would have changed the verdicts. We affirm the
several police interviews, the state charged and later tried
Stuckley on three counts alleged to have happened at home
between May 28 and June 13, 2014:
1. A bath incident where Stuckley admitted to police that he
had inserted his pinky into Victim's vagina. This was
charged, presented at trial, and instructed upon as Count I.
2. A bedroom tickling incident where Stuckley admitted to
police that he probably had inserted his thumb into
Victim's vagina, Victim said "Don't touch me
down there," and Stuckley immediately apologized. This
was charged, presented at trial, and instructed upon as Count
3. Other tickling incidents in Victim's bedroom where
Stuckley's hand touched Victim's vagina without
penetration. This was charged, presented at trial, and
instructed upon as Count III.
matchup of acts with charges continued through trial,
beginning with the prosecutor's opening-statement
reference to what was charged as Count I and would be the
subject of Instruction 5 (our emphasis):
You're going to hear from the defendant how he describes
one particular instance that stands out in his mind.
He remembers carrying four-year-old [Victim] out of the
bathtub after she was getting a bath. He'll describe
to you that he remembered she was wet and slippery and his
hands were wet and slippery from helping her wash her hair.
He'll talk about remembering his right hand on her upper
back and his left hand underneath the buttocks. He remembers
the thumb of his left hand brushing up against the lips of
her vagina. He'll talk about her slipping and his
pinky finger inserting into her vagina about one inch or
up to his first knuckle. He'll tell police officers that
once that happened, he yanked it out real quick.
prosecutor then moved to what was charged as Count II and
would be the subject of Instruction 6 (our emphasis):
The defendant remembered another particular
circumstance in which his fingers had been inserted
inside [Victim's] vagina in that two-week period.
You'll hear him describe to police officers that when
he would put [Victim] to bed at night, he would often tickle
her. On this particular incident, he remembered her
wearing a dress nightgown, with panties.
He talked about tickling her on her upper leg, inner thigh,
and back of leg area. On this particular night, his
left hand again, the thumb this time, slipped inside
the elastic band of the leg part of her underwear and
into her ...