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State v. Stuckley

Court of Appeals of Missouri, Southern District

May 13, 2019

STATE OF MISSOURI, Respondent,
v.
WADE A. STUCKLEY, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy, Judge

          DANIEL E. SCOTT, J.

         Wade 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[1] and one charging double jeopardy.

         A 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.

         Given 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 convictions.

         Background

         After 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 II.
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.

         This 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.

         The 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 ...

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