             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 STATE OF MISSOURI,                               )
                                                  )
                                  Respondent,     )
                                                       WD82502
 v.                                               )
                                                  )
                                                       OPINION FILED:
                                                  )
                                                       March 31, 2020
 SCOTT EVAN WEYANT,                               )
                                                  )
                                    Appellant.    )


                  Appeal from the Circuit Court of Adair County, Missouri
                           The Honorable Russell E. Steele, Judge

               Before Division One: Thomas N. Chapman, Presiding Judge, and
                      Mark D. Pfeiffer and Anthony Rex Gabbert, Judges

       Mr. Scott E. Weyant (“Weyant”) appeals from the judgment of the Circuit Court of Adair

County, Missouri (“trial court”), finding him guilty, following a jury trial, of sodomy in the first

degree. On appeal, Weyant argues that the trial court plainly erred in submitting the instruction

defining “deviate sexual intercourse” because he claims it impermissibly submitted a disjunctive

phrase in violation of MAI-CR 420.12. Because this is a “single act” case, Weyant’s reliance upon

State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), is misplaced and, in light of the fact that

substantial evidence in the case supported the disjunctive submission of alternative purposes for
the crime, the trial court did not err, plainly or otherwise, in instructing the jury as to the definition

of “deviate sexual intercourse.” We affirm.

                                        Facts and Procedural History1

         Although C.W.2 was divorced from Weyant, they shared an apartment, with C.W. sleeping

in the bedroom and Weyant sleeping on the couch. On April 6, 2017, C.W. was moving her

possessions to a new apartment. That evening, when she returned to the apartment to retrieve more

of her possessions, she found an intoxicated Weyant lying on her bed, and he became angry when

C.W. refused his sexual entreaties. When C.W. asked Weyant to get out of her bedroom, he threw

beers at her; then, he grabbed her by the neck, threw her on the bed, and got on top of her. C.W.

thought Weyant was going to choke her. Instead, he held her down and dumped beer on her face.

As C.W. was crawling away from Weyant, he pushed her on the floor.

         When C.W. was crawling to the other side of the room, Weyant grabbed her from behind

and stuck his hand down her pants, pushing his middle and pointer fingers in and out of her vagina

very aggressively. C.W. pleaded with Weyant to stop, but Weyant ignored her. When C.W. was

able to roll over onto her back, she succeeded in physically defending herself, and Weyant pulled

his hands out of her pants.

         C.W. ran into the living room to get her purse and leave, but Weyant grabbed her purse

and ran back into her bedroom. He held the purse above her head and said, “Don’t leave. Don’t

leave.” When C.W. convinced Weyant to give her purse to her, she ran outside to her vehicle but

could not find her keys. She went back to the apartment, and Weyant opened the door but he




         1
           “On appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict.” State
v. Demark, 581 S.W.3d 69, 73 n.2 (Mo. App. W.D. 2019) (internal quotation marks omitted).
         2
           Pursuant to section 595.226.1, RSMo 2016, we have used initials to identify the victim so as to protect the
victim’s identity.


                                                           2
would not initially let her have her keys. Eventually, C.W. retrieved her keys, ran outside, and

drove straight to the Kirksville police station.

         At the police station, Officer Nicholas Panos interviewed C.W., and observed that she was

upset, she had been crying, her face was red, and her shirt was wet and had the odor of intoxicants

on it.

         While Officer Panos was interviewing C.W., Officer Jake Roberts went to the apartment

to speak to Weyant. When Officer Roberts made contact with Weyant, he observed that Weyant

was visibly intoxicated. Weyant’s speech was slurred, and the officer could detect intoxicants on

his breath. Weyant admitted to having a verbal altercation with C.W. Officer Roberts took Weyant

into custody.

         The State charged Weyant as a prior offender with one count of sodomy in the first degree

for knowingly having deviate sexual intercourse with C.W. by the use of forcible compulsion on

April 6, 2017. A jury trial was conducted on November 28-29, 2018. At the instruction

conference, defense counsel affirmatively stated that the defendant had no objections to the

instructions tendered by the State.3 The jury found Weyant guilty of sodomy in the first degree,

as submitted in Instruction No. 5. The jury was polled, and the trial court found that the verdict

returned was the unanimous verdict of the jury.




         3
           Yet, a few weeks after trial, the same trial counsel who affirmatively announced to the trial court that trial
counsel had no objection to the jury instructions, subsequently filed a motion for new trial asserting instructional error
pursuant to State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011). Since trial counsel was aware of Celis-Garcia,
we question why trial counsel waited to object to the subject jury instructions until after her client was convicted.
Some might suggest that this was an effort to “sandbag” the State and trial court by holding the “instructional error
card” in trial counsel’s “strategy pocket” until after the trial. While we have no way of knowing trial counsel’s
motivation in choosing to affirmatively assent to the giving of the presently complained-of jury instruction at trial,
only to object to the same instruction shortly after trial, we caution all future trial counsel who may see Celis-Garcia
as just such an opportunity to engage in instructional-error sandbagging; it is not. Instead, we point to the better
practice of defense trial counsel in State v. Holmsley, 554 S.W.3d 406 (Mo. banc 2018), as more fully described in
our ruling today.


                                                            3
       In Weyant’s motion for new trial, he asserted for the first time that the trial court erred in

submitting a disjunctive definitional instruction and that it was thus impossible to determine if the

jury reached a unanimous verdict, citing to State v. Celis-Garcia. The trial court overruled the

motion and sentenced Weyant to the Department of Corrections for a term of twelve years.

       Weyant timely appealed.

                                       Standard of Review

       At the instruction conference, the State proffered a verdict-directing instruction for sodomy

in the first degree and an instruction defining “deviate sexual intercourse.” Weyant’s trial counsel

affirmatively stated that the defendant had no objection to the instructions. Weyant thus concedes

that his allegation of error is not preserved for appellate review. See Rule 29.03 (“Counsel shall

make specific objections to instructions or verdict forms considered erroneous. No party may

assign as error the giving or failure to give instructions or verdict forms unless the party objects

thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and

the grounds of the objection.”).

       Nevertheless, Weyant requests that we review his claim of instructional error for plain

error. “Although [Weyant] waived appellate review when his trial counsel affirmatively stated

that he had no objection to [the State’s instructions], unpreserved claims of plain error relating to

jury instructions may still be reviewed under Rule 30.20 if manifest injustice would otherwise

occur.” State v. Berry, 506 S.W.3d 357, 361-62 (Mo. App. W.D. 2016) (footnote omitted) (citing

State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001)). See also State v. Manuel, 443 S.W.3d

669, 672 (Mo. App. W.D. 2014) (citing Wurtzberger and holding that neither a failure to object to

an instruction, nor an express statement of “no objection” to an instruction, waive plain error

review).




                                                  4
        Rule 30.204 provides that “plain errors affecting substantial rights may be considered in

the discretion of the court when the court finds that manifest injustice or miscarriage of justice has

resulted therefrom.” “Plain error review is discretionary and involves two steps: first, we must

determine whether the trial court committed evident, obvious, and clear error affecting the

defendant’s substantial rights; second, if plain error is found, we then consider whether the error

actually resulted in manifest injustice or a miscarriage of justice.” Berry, 506 S.W.3d at 362

(internal quotation marks omitted). “‘When the unpreserved allegation concerns instructional

error, plain error exists when it is clear that the circuit court has so misdirected or failed to instruct

the jury that manifest injustice or miscarriage of justice has resulted.”’ Id. (quoting State v.

Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016)). “The defendant bears the burden of

showing that an alleged error has produced such a manifest injustice.” Id. (internal quotation

marks omitted). “Instructional error seldom rises to the level of plain error.” Id. (internal quotation

marks omitted).

                                                  Analysis

        In Weyant’s sole point on appeal, he asserts that the trial court plainly erred in submitting

Instruction 7, the definition for deviate sexual intercourse, because it instructed the jury that they

could find the act was done for the purpose of either arousing or gratifying the sexual desire of any

person or terrorizing another. However, Weyant does not contest on appeal that there was

substantial evidence at trial of both “purposes” for the single act of unlawful digital penetration he

was charged and convicted of. Hence, because the jurors at Weyant’s trial necessarily reached a

unanimous decision on guilt or innocence, namely, that Weyant “knowingly” had “deviate sexual




        4
            All rule references are to I MISSOURI COURT RULES—STATE 2019.


                                                       5
intercourse” with C.W. on April 6, 2017, by the use of “forcible compulsion,” it did not impact

jury unanimity to provide the jury an instruction in the disjunctive as to the purpose for his crime.

        “A person commits the offense of sodomy in the first degree if he or she has deviate sexual

intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity

to consent, or by the use of forcible compulsion.” § 566.060.1.5 By amended felony information,

the State charged Weyant as a prior offender with committing the felony of sodomy in the first

degree in violation of section 566.060 in that on April 6, 2017, he “knowingly had deviate sexual

intercourse with [C.W.] by the use of forcible compulsion.”

        The approved instruction for sodomy in the first degree is MAI-CR 4th 420.12 (7-1-17).6

Instruction No. 5 was the verdict director for sodomy in the first degree that was tendered by the

State, submitted to the jury at Weyant’s trial, and of which Weyant does not complain of on appeal:

        If you find and believe from the evidence beyond a reasonable doubt:

        First, that on or about April 6, 2017, in the State of Missouri, the defendant
                knowingly had deviate sexual intercourse with [C.W.] by forcing his finger
                into [C.W.’s] vagina, and

        Second, that defendant did so by the use of forcible compulsion, then you will find
              the defendant guilty of sodomy in the first degree. However, unless you
              find and believe from the evidence beyond a reasonable doubt each and all
              of these propositions, you must find the defendant not guilty of that offense.

                 As used in this instruction, “forcible compulsion” means physical force that
                 overcomes reasonable resistance or a threat, express or implied, that places
                 a person in reasonable fear of death or serious physical injury or kidnapping
                 of herself or another person.

        At the time Weyant committed the alleged offense, “deviate sexual intercourse” was

statutorily defined as:



        5
         All statutory references are to the REVISED STATUTES OF MISSOURI 2016.
        6
         “This instruction applies to offenses committed on or after January 1, 2017.” MAI-CR 4th 420.12 (7-1-17),
Notes on Use 1. The State charged that Weyant committed the offense on April 6, 2017.


                                                        6
       [A]ny act involving the genitals of one person and the hand, mouth, tongue, or anus
       of another person or a sexual act involving the penetration, however slight, of the
       male or female sex organ or the anus by a finger, instrument or object done for the
       purpose of arousing or gratifying the sexual desire of any person or for the purpose
       of terrorizing the victim[.]

§ 566.010(3) (emphasis added). Likewise, sexual gratification or terrorizing the victim are both

listed as optional choices in the MAI-CR 420.12 definition of “deviate sexual intercourse”:

       As used in this instruction, the term “deviate sexual intercourse” means (any act
       involving the genitals of one person and the hand, mouth, tongue, or anus of another
       person) (or) (a sexual act involving the penetration, however slight, of the penis,
       female genitalia, or the anus by a finger, instrument or object) done for the purpose
       of (arousing or gratifying the sexual desire of any person) (terrorizing [Identify
       victim.]).

There is nothing in MAI-CR 420.12 or the associated Notes on Use mandating that the State must

elect either that the act was done for one purpose or another; rather, the only requirement is that

the act (in this case, digital penetration) “must be consistent with the language selected in the

definition of deviate sexual intercourse.” See Notes on Use 2.[7] In other words, the instruction

“must be supported by substantial evidence and the reasonable inferences to be drawn therefrom.”

State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009); see also State v. Demark, 581 S.W.3d 69,

77-78 (Mo. App. W.D. 2019). Likewise, “‘disjunctive submission of alternative means by which

a single crime can be committed is proper . . . if the alternative submissions are each supported by

the evidence.’” State v. Wright, 585 S.W.3d 360, 375 (Mo. App. W.D. 2019) (quoting State v.

Shockley, 98 S.W.3d 885, 891 (Mo. App. S.D. 2003)). Here, an instruction defining “deviate

sexual intercourse” was tendered by the State and submitted to the jury as Instruction No. 7:


       7
           MAI-CR 4th 420.12 (7-1-17), Notes on Use 2 provides that:

       A person commits the offense of sodomy in the first degree if he or she has deviate sexual intercourse
       with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or
       by the use of forcible compulsion. There are two types of acts, penetration or contact, under the
       definition of “deviate sexual intercourse.” Soto v. State, 226 S.W.3d 164 (Mo. 2007). The acts
       constituting deviate sexual intercourse alleged in paragraph first of this instruction must be
       consistent with the language selected in the definition of deviate sexual intercourse.


                                                         7
       As used in these instructions, the term “deviate sexual intercourse” means any act
       involving the genitals of one person and the hand, mouth, tongue, or anus of another
       person or a sexual act involving the penetration, however slight, of the penis, female
       genitalia, or the anus by a finger, instrument or object done for the purpose of
       arousing or gratifying the sexual desire of any person or terrorizing another.

Indeed, there was substantial evidence at trial that Weyant’s purpose in committing the crime was

both for the purpose of sexual gratification and terrorizing his victim. Weyant does not contest

the evidentiary basis for the disjunctive submission of his purpose in committing the crime.

Rather, he summarily concludes that we should treat this like a “multiple acts” case as described

in Celis-Garcia and that we should reverse on the grounds that the disjunctive submission of the

definition of deviate sexual intercourse destroyed juror unanimity as to his conviction for sodomy

in the first degree. We disagree.

       In Celis-Garcia, our Missouri Supreme Court defined a “multiple acts” case as arising

“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.” Celis-Garcia,

344 S.W.3d at 155-56. Because the verdict-directing instructions in Celis-Garcia “permitted the

jury to convict [defendant] of two counts of sodomy without identifying the acts the jurors were

to agree she committed,” the Supreme Court found plain error “because it was impossible to

determine whether the jury unanimously agreed on any one of [the] separate incidents [of

sodomy]” from the evidence presented at trial. Id. at 158.

       Celis-Garcia does not apply here. This is not a “multiple acts” case; rather, the State

charged Weyant and presented evidence of one act of unlawful digital penetration occurring on

April 6, 2017. To find that the charged offense of sodomy in the first degree occurred, it was

proper for the jury to find that Weyant’s purpose in digitally penetrating his victim was for either

sexual gratification or to terrorize his victim. In either instance, his conduct constituted deviate




                                                 8
sexual intercourse as defined by statute. The jury was still required to reach unanimity on all of

the elements of the crime charged and as reflected in the verdict-directing instruction in this case.

         A jury need only be unanimous as to the ultimate issue of guilt or innocence, and
         need not be unanimous as to the means by which the crime was committed. A
         disjunctive submission of alternative means by which a single crime is committed
         is proper if both alternatives are supported by sufficient evidence and the alternative
         means are in the same conceptual grouping.

State v. Richter, 504 S.W.3d 205, 211 (Mo. App. W.D. 2016) (citation omitted) (internal quotation

marks omitted). In Richardson v. United States, 526 U.S. 813 (1999), the Supreme Court of the

United States provided an example of a permissible disjunctive instruction:

         Where, for example, an element of robbery is force or the threat of force, some
         jurors might conclude that the defendant used a knife to create the threat; others
         might conclude he used a gun. But that disagreement—a disagreement about
         means—would not matter as long as all 12 jurors unanimously concluded that the
         Government had proved the necessary related element, namely, that the defendant
         had threatened force.

Id. at 817.

         Though the present case is not one of different “means” for committing the crime, it is

instructive that courts have found that using a knife vs. gun (Richardson) or shaking vs. striking a

baby (Richter) is wholly appropriate to be submitted to the jury as long as the jury is unanimously

agreeing that the related element of the crime (use of threatened force in Richardson or

endangering the welfare of a child in Richter) has occurred by way of either of the described

means.

         Similarly, here, though the jury could conclude that Weyant digitally penetrated C.W.’s

vagina either for the purpose of sexual gratification or to terrorize C.W., the jury was still required

to unanimously agree that the act of digital penetration satisfied the element of “deviate sexual

intercourse” necessary for conviction of the crime for which he was charged. Accordingly, the




                                                   9
trial court did not err in instructing the jury on the definition of “deviate sexual intercourse” at

trial.

         Though State v. Holmsley, 554 S.W.3d 406 (Mo. banc 2018), is relevant, it does not dictate

a contrary result. In Holmsley, the defendant was charged with sodomy in the first degree,

section 566.060. Id. at 408. Holmsley’s counsel filed a motion for bill of particulars and, in so

doing, achieved agreement with the State prior to trial that the State was limiting its criminal

prosecution on the issue of the “purpose” for the act of sodomy charged as being committed for

the purpose of terrorizing the victim, and at trial, the State’s proffered (and accepted) instruction

on the definition of deviate sexual intercourse “meant a sexual act done for the purpose of

terrorizing the victim.” Id. at 409. And yet, after the jury instruction on the definition of deviate

sexual assault was submitted to the trial court by the State and read to the jury as one of its

instructions on the law, the State argued in its closing argument that the definition of deviate sexual

intercourse also included “sexual gratification”; defense counsel objected and requested a curative

instruction that was rejected by the trial court. Id.

         In its ruling, the Holmsley court noted that, when pressed by way of the motion for bill of

particulars, the State opted to prosecute Holmsley exclusively on the theory that he committed the

conduct for the purpose of terrorizing the victims, the jury was so instructed, and specifically:

“The instructions submitted to the jury did not instruct that deviate sexual intercourse included

sexual acts for the purpose of sexual gratification.” Id. at 410-11. It was on this basis—after the

jury had been instructed on the law about the definition of deviate sexual intercourse (as requested

by the State) and such definitional instruction failed to include a reference to sexual gratification

as one of multiple purposes for committing the conduct charged—the Supreme Court found that

the State’s closing argument injecting the alternative statutory “purpose” of sexual gratification




                                                  10
was error of such prejudice that a refusal by the trial court to give a curative instruction to the jury

was reversible error:

        The prosecutor, therefore, gave a different instruction as to the meaning of deviate
        sexual intercourse during closing argument than the instructions submitted to the
        jury. By doing so, the state misrepresented the law before the jury and injected
        misleading and contradictory statements of law into the proceedings. Accordingly,
        the state’s closing argument was improper.

        ....

        [T]he state’s improper closing argument was prejudicial, and the trial court abused
        its discretion by failing to issue a curative instruction under the facts and
        circumstances of this case.

Id. at 411, 414 (emphasis added).

        First, we note that Holmsley is not an instructional error case; it is a closing argument error

case. Second, we note that the Supreme Court delineated that the State consciously chose to

prosecute and instruct the case as one in which the only “purpose” for the act was “terrorizing the

victim.” There is no suggestion in Holmsley that, if substantial evidence existed as to sexual

gratification being an alternative “purpose” for the defendant’s conduct, the State would have been

prohibited from prosecuting Holmsley on the alternative theories of a purpose for his conduct

being either sexual gratification or terrorizing his victims; nor is there any suggestion that the trial

court was prohibited from instructing the jury on the definition of deviate sexual intercourse by

way of the disjunctive instruction that was used in the present case. Instead, Holmsley merely

stands for the proposition that once the State chooses to limit the definition of deviate sexual

intercourse and the trial court accepts such instruction and so instructs the jury—then that jury

instruction becomes the law of that case “before the jury” which cannot be expanded in closing

argument “under the facts and circumstances of [that] case.”




                                                  11
       Here, conversely, Weyant never filed a motion for bill of particulars at the outset of the

case after being charged; he never argued that there was not substantial evidence of both the

purpose of sexual gratification and terrorizing the victim; the State never limited itself to one of

the two definitional disjunctive “purposes” for deviate sexual intercourse and properly submitted

both to the trial court in the subject instruction; Weyant never objected to the particularity of the

charging instrument nor the definitional instruction; the State presented substantial evidence at

trial to support both disjunctives in the subject definitional instruction; and the jury was required

to unanimously agree upon the criminal elements that Weyant “knowingly” had “deviate sexual

intercourse” with C.W. on April 6, 2017, by the use of “forcible compulsion.”

       The trial court did not err, plainly or otherwise. Weyant’s point on appeal is denied.

                                            Conclusion

       The trial court’s judgment is affirmed.

                                              /s/Mark D. Pfeiffer
                                              Mark D. Pfeiffer, Judge


Thomas N. Chapman, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.




                                                 12
