STATE OF MISSOURI,                                    )
                                                      )
         Plaintiff-Respondent,                        )
                                                      )
v.                                                    )        No. SD35410
                                                      )
MATTHEW SCOTT O’LEARY,                                )        Filed: April 16, 2019
                                                      )
         Defendant-Appellant.                         )

              APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY

                                  Honorable Alan M. Blankenship

AFFIRMED

         In a single point on appeal, Matthew Scott O’Leary (“Defendant”) claims the trial

court “erred or plainly erred” in accepting the verdicts finding him guilty “on both

counts” (respectively, the lesser-included offenses of second-degree rape and second-

degree sodomy1) because when the jury was polled, one juror’s (“Juror 30”) response of

“I did agree” indicated either that she had changed her mind or was “coerced into




1
  See sections 566.031 and 566.061. Defendant surreptitiously recorded the sexual assaults on his iPod,
and that recording was played for the jury during his trial. Defendant does not challenge the sufficiency of
the evidence supporting his convictions. Unless otherwise indicated, all statutory citations are to RSMo,
Noncum. Supp. 2014.


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accepting the verdict[2] by the trial court’s questioning.” Finding no merit in that claim,

we affirm.

         Defendant was charged with rape in the first degree (“Count One”) and sodomy in

the first degree (“Count Two”). The jury was instructed on those charges as well as the

lesser-included offenses of rape and sodomy in the second degree. After deliberating, the

jury found Defendant guilty of the lesser-included offenses. After the verdicts were read,

Defendant asked the trial court to poll the jury, and the following exchange occurred:

         BY THE COURT:              [Juror 30], is this your verdict as to Count One?

         JUROR 30:                  My heart is beating too fast. I am confused. I still have
                                    some questions, because I felt like there wasn’t enough
                                    questions given to [Victim], [Victim], as to – we had talked
                                    about it, the Jury talked about it.

         BY THE COURT:              Is this the verdict that you have agreed to, to Count One?

         JUROR 30:                  I did agree.

         BY THE COURT:              Okay. And is this your verdict that you agreed to to Count
                                    Two?

         JUROR 30:                  I did.

         Defendant did not voice any complaint about the sufficiency or clarity of the

responses given by Juror 30. After the trial court finished polling the jury, it accepted the

verdicts and proceeded to the sentencing phase of the trial. After the sentencing phase

was completed, and the jury was deliberating upon its recommended sentences,

Defendant objected to the trial court’s earlier handling of the jury polling. Specifically,

Defendant’s complaint was,



2
  Although it has no effect on our resolution of his point, we presume, arguendo, that Defendant’s use of
the term “verdict” in the singular was a typographical error and that he is challenging both convictions in
this appeal.


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                Judge, I’m aware this might be late, but when the Court was
        polling the Jury following their verdict in phase one, the guilt phase, Juror
        30 had made some statements about what she thought of the verdict. I
        guess I’m going to object to the Court moving forward with the verdict
        rather than ordering the Jury to return to deliberate.

        The trial court overruled the objection, noting “that basically she was asked, after

she made such a significant statement, did you – is this the verdict you agreed to, and she

acknowledged in each instance, with both counts, that yes, it is. Then she held by her

verdict.”3

        Defendant first argues that the trial court did not protect his right to a unanimous

verdict and “[t]his Court should find that Juror 30 did not indicate that Juror 30 concurred

with the verdict at the time the [trial] court accepted it. It is clear that Juror 30 may have

had some reservations about whether [Defendant] was guilty.”

        Rule 29.01(d)4 allows any party to request a poll of the jury and “[i]f upon the

poll there is not unanimous concurrence, the jury may be directed to retire for further

deliberation or may be discharged.” “Clearly, this procedure contemplates and intends

that an individual juror (if polling takes place) can change his or her mind and refuse to

accede to the previously apparent unanimous verdict, whether guilty or not guilty.” State

v. Schumacher, 85 S.W.3d 759, 762 (Mo. App. W.D. 2002). When first questioned “[is]

this your verdict as to Count One?[,]” Juror 30 expressed confusion and stated that she

had wanted to hear more from Victim. When the trial court responded, “Is this the

verdict that you have agreed to, to Count One?[,]” Juror 30 said “I did agree.” When

asked if she agreed to the verdict on Count Two, Juror 30 responded, “I did.”


3
  The jury returned with a recommended sentence of three years’ imprisonment for rape in the second
degree and one year in the county jail for sodomy in the second degree. The trial court imposed the
sentences in accordance with the jury’s recommendation and ran them concurrently.
4
  All rule references are to Missouri Court Rules (2018).


                                                   3
         Defendant argues that Juror 30’s response indicates only that she agreed with the

verdict sometime in the past, and it did not necessarily indicate that she “currently

concurred with the verdict.” Defendant argues that Rule 29.01(d) and its related case law

require that “polled jurors must accede to the verdict at the time of polling.” The

argument does not aid Defendant because Juror 30 never stated that she did not agree

with the verdicts. The trial court could reasonably find that nothing in her responses

indicated that she did not agree to the verdicts, intended to change her mind, or refused to

accede to the unanimous verdicts.5

         Defendant next argues that “[e]ven if this Court finds the trial court did ensure the

verdict was unanimous by polling, then this Court should nevertheless find that the trial

court coerced the verdict[.]”

                 A coerced verdict does not represent the jury’s true unanimous
         concurrence. State v. Conway, 740 S.W.2d 320, 323 (Mo.App. E.D.1987).
         However, questioning a juror in open court need not be inherently
         coercive. State v. Frederick, 783 S.W.2d 469, 472 (Mo.App. W.D.1990);
         State v. Jackson, 522 S.W.2d 317, 321 (Mo.App.1975). A reviewing court
         must distinguish between a trial court’s effort to eliminate confusion and
         its attempt to compel a juror to change his vote or to coerce a unanimous
         verdict. Id. Where a juror’s uncertainty results from confusion rather than
         dissent, a trial court may question him to obtain clarity. Jackson, 522
         S.W.2d at 322. A court may make inquiry “in a genteel, polite, non-
         leading and noncoercive manner that will clarify a juror’s response.” State
         v. Hatch, 724 S.W.2d 643, 645 (Mo.App. W.D.1986). A trial court errs if
         it continues to question a juror after that juror’s answers clearly evince
         disagreement with the verdict. Frederick, 783 S.W.2d at 472. In
         evaluating the polling procedure, an appellate court must give deference to
         the views of the trial judge who was present at the scene on whether the
         juror’s ultimate acquiescence in the verdict was free from pressure from
         the court. Jackson, 522 S.W.2d at 322.

State v. Dodd, 10 S.W.3d 546, 552 (Mo. App. W.D. 1999).

5
 The trial court was in the best position to determine whether Juror 30’s responses indicated any current
disagreement with the verdict, and we will not second-guess that determination on a cold record. If the trial
court believed that Juror 30’s responses indicated that she no longer supported her vote, it could have asked
additional clarifying questions.


                                                     4
       Defendant claims that the absence of an attempt by the trial court to alleviate

Juror 30’s confusion made it “clear the [trial] court was attempting to coerce a unanimous

verdict.” He further claims that the trial court “in a leading, non-genteel, and dismissive

fashion, bulldozed over [Juror 30’s] concerns and asked again whether the juror did agree

with the verdict[.]” The cases Defendant cites in support of his argument are inapposite

because they deal with situations in which the juror at issue answered “no” to the

question of whether the verdict was his or her verdict. Thus, the issue in those cases was

the manner in which the respective trial courts inquired about a juror’s expressed

dissention. See Hatch, 724 S.W.2d 643, and Jackson, 522 S.W.2d 317.

       Here, Juror 30 never voiced disagreement with the verdicts. Instead, as

Defendant concedes, Juror 30 said she was “confused.” In an attempt to clarify whether

her confusion constituted disagreement with the verdict, the trial court reasonably asked

Juror 30 again whether the guilty verdicts on Count One and Count Two were her

verdicts. As in Frederick, Juror 30’s initial answer indicated confusion, not dissent, and

the trial court’s question was intended to clarify, not coerce, actions that “comport with

the standards governing the conduct of a trial judge who must question a juror regarding

[a] verdict.” 783 S.W.2d at 472.

       “A verdict can only be considered coerced when it appears, under the totality of

the circumstances, that the trial court was virtually mandating that a verdict be reached,

and by implication, it would hold the jury until such occurrence.” State v. Miller, 531

S.W.3d 91, 94 (Mo. App. S.D. 2017) (quoting State v. Evans, 122 S.W.3d 731, 734 (Mo.

App. S.D. 2003)). The trial court’s actions here “do not, by any reasonable view, amount

to a virtual mandate that a verdict be reached.” Id.



                                             5
       Defendant’s objection to the trial court’s interaction with Juror 30 was neither

timely nor specific. He did not object to the trial court “moving forward with the verdict

rather than ordering the Jury to return to deliberate” until the jury had heard additional

testimony from two witnesses called by the State during the sentencing phase of the trial,

some of which (along with the additional arguments by counsel) would not have been

admissible during the guilt phase of the trial. It was only while the jury was deliberating

upon its recommended sentences that Defendant finally made his objection. Even then,

he failed to state a legal basis for his objection. C.f. State v. Knese, 985 S.W.2d 759, 766

(Mo. banc 1999) (“To preserve an objection to evidence for review, the objection must be

specific, and the point raised on appeal must be based upon the same theory”) (quoting

State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995)).

       Under the circumstances present here, the trial court did not err, plainly or

otherwise, in accepting the jury’s verdicts. Defendant’s point is denied, and his

convictions are affirmed.



DON E. BURRELL, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

GARY W. LYNCH, J. – CONCURS




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