 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
STA'I`E OF MISSOURI, ) No. ED103044
)
Respondent, ) Appeal f`rom the Circuit Court
) of the City of St. Louis
vs. )
' ) Honorable Philip D. Heagney
ANTONIO RYCRAW, )
)
Appellant. ) FILED: September 27, 2016

Introduction

Appeilant Antonio Rycraw (“Rycraw”) appeals from the judgment of the trial court
entered after a jury trial. The jury convicted Rycraw on four counts of statutory sodomy and tWo
counts of sexual misconduct against Victim, Who Was between five and eight years old When the
incidents occurred. The jury acquitted Rycraw on one count of furnishing pornography to
Victim. Rycraw argues that the trial court erred in four respects: (l) in refusing to replace a juror
Who “dozed off" during evidence; (2) in precluding evidence that Victim had sexual intercourse
with a third party; (3) in precluding evidence that Victim had viewed pornography With her
brother; and (4) in submitting multiple-act verdict directors for Counts I-V, Which deprived
Rycraw of hisl constitutional right to a unanimous jury verdict.

We find no trial-court error on Rycravv’s first three points. The record shows that the

trial court properly questioned the juror and reasonably concluded that the juror could fulfill her

 

duties. The trial court also did not abuse its discretion in prohibiting evidence that Victim had
intercourse with a third party or viewed pornography because the admission of such evidence
was prohibited by the rape shield statute and was not prejudicial. With respect to Ryeraw’s
fourth point, the trial court properly submitted the jury instructions f`or Counts I, III, and V, but
erred in submitting the jury instructions f`or Counts II and IV because the verdict directors f`or
those counts failed to ensure a unanimous jury verdict. Accordingly, we reverse the trial court’s
judgment with respect to Counts II and IV, but affirm in all other respects.

Factual and Procedural Historv

 

I. Factual OVerview

Rycraw lived in a one-story home with three bedrooms, one bathroom, and a basementl
In 2009, five-year-old Victim moved into the home with her mother, father, and siblings. Victim
shared one bedroom with her two sisters, while Rycraw had his own bedroom. Rycraw’s sister
(who also lived in the home) had a relationship with Victim’s mother, and Victit‘n referred to
Rycraw as “Uncle Tony.”

Several years later, then eight-year-old Victim attended a school program that taught
students about inappropriate touching After the program, Victim reported that Rycraw had
touched her inappropriater and the schooi nurse called the child-abuse hotline.

Subsequently, a forensic interviewer from the Child Advocacy Centcr conducted a
videotaped interview with Victim (“CAC interview”). Victim described several inappropriate
incidents involving Rycraw. Victim did not describe these incidents chronologicaliy in the
video, but the forensic interviewer pressed Victim to identify each act as the “f'lrst time” in
Rycraw’s bedroom, the “second time” in Rycraw’S bedroom, or in the bathroom.

With regard to the first incident, Victim reported that she was sitting fully clothed on the

bed in Rycraw’s bedroom watching a movie. Rycraw and other children were in the bedroom,

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but at some point the other children left. Victim recalled that Rycraw, who was laying on the

bed, unzipped his pants and exposed his “pr‘ivate part.”l

Rycraw reached into Victim’s pants and
“pushed” on the inside of her vagina; Rycraw’s other hand grabbed his exposed genitals. Victim
ran away and told her parents about the incident, but her parents simply told her to stay away
from Rycraw. According to Victim, Rycraw threatened to shoot her in the head if she told
anyone. Victim tried to stay out of Rycraw’s bedroom after that incident

Victim also reported a second incident that occurred in Rycraw’s bedroom. This time,
Victim told the forensic interviewer that she was sitting on the couch in another room in the
house when Rycraw “trici<ed” her into coming into his bedroom by asking her to bring the cat
into his bedroom. Victim said that when she gave Rycraw the cat, Rycraw dropped the cat,
touched her vagina, and asked her if she wanted to have sex. Rycr'aw then pulled out his “private
part” and put it in Victirn’s mouth.

Third, Victim described an encounter that occurred in the only bathroom in the horne.
Victim had to use the bathroom badly, but Rycraw was showering at the time, so Victim closed
her eyes and entered the bathroorn. While in the bathroorn, Rycraw allegedly showed Victim a
“nasty video” on his cell phone depicting pornographyl Victim said that while she was in the
bathroorn, Rycraw forced her to touch his “balls” with her hand. Victim’s manual demonstration
suggested that she was moving her hand up and down on Rycraw’s penis. Victim said she saw a
“white thing” come out in the shower and the encounter ended. Victim was unclear whether the
two acts (viewing of pornography and hand-to-penis contact) occurred at the same time or at

different tirnes, but said both acts took place in the same bathroom.

 

l Victim sometimes referred to Rycraw’s genitals as “balls.H

3

 

The State charged Rycraw with four counts of felony first-degree statutory sodomy for
the inappropriate contact (Counts I, III, V, and VII), two counts of misdemeanor sexual
misconduct for genital exposure (Counts II and IV), and one count of furnishing pornography to
a minor (Count VI).

II. Pretrial Motions

The State moved in limine to prohibit the defense from eliciting evidence that Victim
allegedly viewed a pornographic video with her brother. The prosecutor asserted that Victim did
not view any actual pornography, but only saw “the title menu of the porn DVD.” Defense
counsel replied that the evidence was relevant because Rycraw was charged with furnishing
pornographic materials to Victim. The trial court granted the State’s motion, reasoning that
Victim’s viewing of a pornographic DVD nrenu was not relevant to what Victim might have
seen in the bathroom with Rycraw.

invoking the protections of Missouri’s rape shield statute, the State also moved in limine
to prohibit the introduction of any evidence that Victim had sexual intercourse with a third party.
The trial court preliminarily granted the State’s motion in iimine. Rycraw subsequently filed a
written motion under Section 491 .0152 urging the trial court to reconsider. The trial court denied
Rycraw’s motion. Defense counsel presented an offer of proof consisting of testimony from
Rycraw’s brother, Leroy Rycraw (“Leroy”3).

Leroy testified that, in May or June of2011, he heard noise on the side of the home.
Leroy saw his nephew and Victim outside, through a window. The nephew “had {Victim] bent
over, and he was humping on her.” Leroy clarified that “humping” meant intercourse After

Leroy’s offer of proof, defense counsel argued that Leroy’s testimony fell within the third

 

2 All statutory references are to RSMo (2000).
3 We use the witness’S first name to avoid confusion; no disrespect is intended

4

 

exception in the rape shield statute: evidence of immediate surrounding circumstances of the
alleged crime. The prosecutor responded that Leroy’s testimony would only tarnish Victim’s
reputation, emphasizing that “the entire point of Section 491 is to prevent that.” '1` he trial court
precluded the testimony from being admitted into evidence at trial.

III. Trial

Victim was ten years old when she testified at trial. Victim’s trial testimony was
scattered, and she did not express a clear order of events. Victim recalled that Rycraw put his
hands in her pants and touched her “private ar'ea” when she was in his room watching television.
Victim next testified about the bathroom incident. Rycraw was taking a shower while Victim
had to use the restroom. Victim entered the bathroom to use the toilct. While in the bathroom,
Rycraw allegedly showed her pornography on his phone. Next, Victim mentioned “the cat
thing,” where Rycraw asked Victim to bring him the cat, Victim testified that Rycraw started
touching her, and she ran. At the end of Victim’s testimony, the prosecutor asked Victim if
Rycraw had touched any other part of her body. Victim replied, “No, but he made me touch
something of his.” Victim explained that her hands touched Rycraw’s “front area” and that this
contact happened in “the room.” Victim remembered moving her hand up and down until she
saw “white stuff.” When the prosecutor asked if Victim had touched any other part of Rycraw’s
body, she replied, “He tried to make me suck it.” Victim explained that her lips touched
Rycraw’s “front area.” Victim did not explain where this penis-to-mouth contact occurrcd.

The State also played the recorded CAC interview for the jury. While the video was
being played, defense counsel heard Juror Washington snor't aloud and saw another juror attempt
to wake Juror Washington with a slap. After the video was playcd, defense counsel informed the
trial court that .luror Washington “was asleep for at least part” of the CAC interview. Thus,

defense counsel moved to replace Juror Washington with an alternatejuror. The prosecutor

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[Trial court]:
[.luror]:
[Trial court]:
[Jur'or]:

[Trial court]:
[Juror]:

[Trial court]:

{Juror]:
[Trial court]:
{Juror]:
[Trial court]:

[Juror]:
[Trial court]:
[Prosecutor]:

[Juror]:
[Prosccutor]:

[Juror]:
[Prosecutor]:

[Defense counsel]:

[Ju ror] :

[Defense counsei]:

{Juror] :

acknowledged seeing Juror Washington’s eyes closed and requested that the trial court question

the juror. .Iuror Waslrington was questioned outside the presence of the rest of the jury:

Ms. Washington, about when we were watching that tape
or the DVD this afternoon from the CAC, and at one point it
looked like you lrad dozed off. Had you?

Yes, sir.

Okay. And do you know how much of the tape or how much
of the DVD you might have missed?

My fellowjurors said about two seconds. 1 was-1 work
nights. I’m trying to get used to this being up. That’s_
That makes it hard?

Yes, sir. I’m going to`do better. 1 didn’t miss a lot. l got my
notes and everything I’m sorry.

Okay. Thank you. And Ijust want to check with you. Do
you believe_and there is no right or wrong answer here.
We’ve got alternate jurors if we need somebody to step up
and fill in for you, but do you believe that you’ve been able
to pay attention to the evidence and to hear and see the
evidence that’s been presented so far?

Yes, sir, I do believe.

Okay.

Yes, sir, and yes, sir and yes, ma’am.

And do you feel that given that you closed [sic] off for a little
bit watching the CAC DVD that you have the information
you need to continue to serve as ajuror or you don’t have
that information?

1 have that information I have that information, and l have
that information over there, young man.

Okay. Let me just check and see. [The prosecutor], do you
have any questions that you want to ask Ms. Washington?
The otherjurors said it was about two seconds?

Yeah.

So you don’t feel like you fell asleep for like a couple of
minutes?

No.

Nothing f`urthcr.

Ms. Washington, is it fair to say you don’t know how long
you were asleep because you were asleep?

No, I don’t think that’s fair to say that, because I know as
soon as l did it, they touched me and I kind of caught myse|f.
I was trying to anyway catch myself.

Did you hear yourself Snor'e, kind of Snort?

I heard myself do the (indicating), Yes, I did.

 

[Defense counsel]: l don’t have anything else.

Jur'or Washington apologized and promised to do better the next day. The trial court
denied the motion to substitute an alternate juror, noting that Juror Washington assured the court
she was asleep for only a short time. The trial court was further satisfied that Juror Washington
had seen and heard the evidence, and that she could continue to fulfill her duty as ajuror.

IV. Jul'y Instl'uctions, Closing Argument, and the Verdict

Before the case was submitted to thejury, Rycraw objected to several verdict directing
instructions on the ground that they violated Rycraw’s constitutional right to a unanimous verdict
because the verdict directors allowed convictions for multiple acts of sexual misconduct

First, Rycraw objected to Irrstruction Nos. 5 and 7, the verdict directors for Counts l and
111. Each of the verdict directors charged first-degree statutory sodomy for hand-to-vagina
contact. lnstruction No. 5 (Count I), in relevant part, stated that the jury must find beyond a
reasonable doubt: “First, that the defendant knowingly placed his hand on [Victim’s]
genitals.” lrrstruction No. 7 (Count llI) was identical to Instruction No. 5, except for an addition
to the end: “First, that defendant knowingly placed his hand on [Victim’s] genitals a second
time.”

Next, Rycraw objected to Instruction Nos. 6 and 8, the verdict directors for Counts ll and
IV. Each of these verdict directors charged Rycraw with exposing his genitals to Victim.
lnstruction No. 6 (Count Il) in relevant part, required thejury to find: “First, that the
defendant exposed his genitals.” Instruction No. 8 (Count IV), was identical to Instruction No. 6
except for the language added to the end: “First, that defendant exposed his genitals a second

time.”

 

Rycraw also objected to instruction No. 9, the verdict director for Count V, charging
first-degree statutory sodomy for penis-to-mouth contact. Instruction No. 9 required the jury to
find: “First, that the defendant knowingly put his penis in [Victim’s] mouth.”

Defense counsel argued that the jury could be confused because the verdict directors did
not “sufficiently differentiate[] between multiple separate acts of sexual misconduct” and did not
“ensur‘e that tlrejury will unanimously convict the defendant of the same act.” The State
reasoned that the acts alleged in Counts I and 111, and Counts II and lV, were sufficiently
differentiated because the modifier, “a second time,” enabled thejurors to distinguish between
the separate acts committed on different days in the bedroom. The trial court overruled the
objections, finding sufficient distinguishing factors to separate the two alleged incidents.

During closing argument, the prosecutor carefully outlined the case to the jury, count by
count. The prosecutor explained that Counts I and ll related only to the first alleged incident in
Rycraw’s bedroom: “this is where she says he put his hand on her vagina and pushed it. She
used the word ‘pushed it on the inside.’ That’s what she’s talking about. That’s Count 1.” The
prosecutor then stated, “So Count II is based on the same first time as she says in the CAC. The
first time when he also committed pushing the vagina. . .,”

The prosecutor then explained that Counts lll and IV related solely to the acts committed
by Rycraw during the second incident in his bedroom. The prosecutor argued that Rycraw
engaged in hand-to-vagina sodomy during the second bedroom incident (Count lII) and that
Rycraw exposed “his genitals a second time,” which constituted the sexual misconduct alleged in
Count IV. The prosecutor recounted that Counts 111 and IV occurred after “the cat incident.”

The prosecutor explained that Count V related to yet “another statutory sodomy in the

first degree, but this is different conduct. This is mouth of [Victim] and defendant’s penis.”

 

After' closing arguments, the case went to the jury. During deliberations, the jury
requested and received the CAC interview video. Thejury subsequently acquitted Rycraw of
furnishing pornography to a minor (Count Vl), but convicted Rycraw on all other counts. The

trial court sentenced Rycraw to a total of twelve years in prison. This appeal follows.

Points orr Appeal

Rycraw raises four points on appeal. First, Rycraw argues that the trial court abused its
discretion by failing to remove ajuror who “dozed off” during the Victim’s videotaped CAC
interview. Second, Rycraw asserts that the trial court abused its discretion in precluding
evidence that Victim was observed having sexual intercourse with another person. Third,
Rycraw contends that the trial court abused its discretion by not allowing evidence that Victim
had viewed a pornographic video. Finally, Rycraw argues that the trial court erred in submitting
verdict directors for Counts 1-V because the verdict directors failed to sufficiently differentiate
between the multiple charged acts, which violated Rycraw’s constitutional right to a unanimous
jury verdict.

Discussion
I. Point One~Sleeping Juror

Rycraw argues that the trial court abused its discretion by refusing replace Juror
Washington when the juror briefly “dozed off" while watching the CAC interview.

A. Standard of Review

The substitution of ajuror during trial is a matter entrusted to the trial court’s discretion
State v. Rose, 169 S.W.3d 132, 134 (Mo. App. E.D. 2005) (citing State v. Naucke, 829 S.W.2d
445, 461 (Mo. banc 1992)). We will not disturb a trial court’s ruling on this issue absent an
abuse ofthat discretion. State v. Williams, 427 S.W.3d 259, 264 (Mo. App. E.D. 2014). ’i`he
trial court retains such broad discretion because it is best positioned to determine a juror’s ability

9

 

to hear the case effectively. l_c_l_. A trial court abuses its discretion only when the ruling is clearly
against the logic of the existing circumstances, and is so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful consideration State v. Peeples, 288 S.W.3d
767', 775 (Mo. App. E.D. 2009).

B. No Abuse of Discretion

In considering whether the trial court abused its discretion, our opinion in Williams is
instructive In Williams, defense counsel requested a sidebar and informed the trial court that a
juror was “substantially nodding of .” 427 S.W.Sd at 263. Defense counsel noted at least ten
times during testimony where thejuror had “closed his eyes and his head went down and then he
stumbled.” l_d. After closing arguments, defense counsel moved to replace the juror, and the
trial court examined the juror. § Thejuror admitted to nodding off, but he reported that
anotherjuror had nudged him once or twice and that he had not fallen asleep. § Thejuror also
stated that he had heard all the evidence and would be capable of proceeding in the case. §
After the examination, the trial court denied defense counsel’s rnotion. § at 264. The trial
court acknowledged that it had noticed thejur‘or nodding off, but also found that the juror was
asleep “no more than an instant. Second or two. It certainly wasn’t of any length and then_
and then he--he was up.” l_d_L

On appeal, this Court found no abuse of discretion. I_d. We noted the trial court’s finding
that the juror would almost immediately recover after nodding off and that the juror otherwise
appeared to be attentive. id We also acknowledged thejuror’s belief that he had not fully fallen
asleep and that he had not missed the presentation of any evidence. _l,dma Thus, we deferred to the
trial court’s determination because the trial court was in a “far better position than this Court to

gauge the attentiveness of the juror.” §§ at 265

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We see no convincing reason to depart from Williams. As there, defense counsel here
noted that Juror Washington was dozing during testimony. The trial court then examined the
juror. Juror Washington admitted that she had “dozed off,” but insisted that she dozed for only
two or three seconds before anotherjuror nudged her. Jur'or Washington apologized, said she
“didn’t miss a lot,” and explained that she had taken notes about the evidence. The trial court
accepted Juror Washington’s explanation The trial court also noted that Juror Washington could
view during deliberations any portion of the CAC interview she might have missed.

While in Williarns the trial court personally witnessed thejuror dozing; here, the trial
court relied on Juror Washington’s report about the occurrence While someone who has nodded
off might not realize lrow long he or she was asleep, Juror Washingtorr reported that another
juror said she was only sleeping a few seconds. The prosecutor also acknowledged seeing Juror
Washington’s eyes closed, but noted that Juror Washington also scratched herself during that
time So it Was unclear whether she was sleepingl Finally, Juror Wasirington told the trial court
that she “caught herself” falling asleep as she heard herself ‘snorting’ as she dozed off. The
record before us suggests the trial court could reasonably conclude that Juror Washington was
briefly asleep, as in Williams, but for no more than a few seconds.

Following a thorough inquiry, the trial court was confident that Juror Washington had
missed limited portions of the CAC interview, which she could view in deliberations, and that
she was capable of continuing The trial court is best positioned to determine a juror’s ability to
hear the case effectively, which is why we afford the trial court such broad discretion Williams,
427 S.W.3d 264. With facts so similar to Williams, we are not persuaded that the trial court’s

actions were so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of

ll

 

careful considerationl Peeples, 288 S.W.3d at 775. Thus, the trial court did not abuse its
discretion in refusing to remove Juror Washington from the jury. Point One is denied.

II. Points Two and Three_Evidentiary Issues

Rycraw asserts that the trial court erred in excluding evidence under the rape shield
statute (Point Two) and under a general relevance theory (Point Three). As evidentiary issues,
we address both points together.

A. Standard of Review

The trial court wields broad discretion to admit and exclude evidence at trial. §M
SLith, 314 S.W.Bd 802, 807 (Mo. App. E.D. 2010). A trial court abuses its discretion only when
the challenged ruling is “clearly against the logic of the circumstances and is so arbitrary and
unreasonable as to shock the sense of justice and indicate a lack of careful corrsideration.” §

Further, we review for prejudice in addition to error. State v. Zink, 181 S.W.3d 66, 73
(Mo. banc 2005). Thus, we “will reverse only if the error was so prejudicial that it deprived the
defendant of a fair trial.” ida (quoting State v. Mlddleton, 995 S.W.Zd 443, 452 (Mo. banc
1999)). “Trial court error is not prejudicial unless there is a reasonable probability that the trial
court’s error affected the outcome of the trial.” M, 181 S.W.3d at 73.

B. Point Two_Rat)e Shield Statute

Rycraw argues that the trial court erred in not allowing evidence at trial that Victim had
engaged in sexual intercourse with a third party. We disagree
The rape shield statute, found in Section 491.015, creates a presumption that a victim’s

prior sexual conduct is not relevant to sex-crime prosecutions State v. lohnson, 479 S.W.3d

12

 

762, 766 (Mo. App. E.D. 2016). Scction 491 .015.1 states, “evidence of specific instances ofthe
complaining witness’ prior sexual conduct is inadmissible,” unless a listed exception applies.4
lf one of the exceptions is met under subsection 1, the evidence is admissible only to the
extent that the evidence is also “relevant to a material fact or issue.” Section 491.01 5.2; §LQLQ_L
lones, 716 S.W.2d 799, 800 (Mo. banc 1986). Generally, evidence is not independently
admissible under the relevance test in Section 491 .015.2; thus, an express exception under
subsection l must be met before proceeding to the relevance analysis under subsection 2. M,

7l6 S.W.2d at 800.

However, we also note that the rule stated in Jones cannot be so strictly applied “as to

 

deprive the defendant of the fair trial comprehended by the concept of due process.” w
Douglas, 797 S.W.Zd 532, 535 (Mo. App. W.D. 1990). For example, in Douglas, the State
presented evidence of Victim’s lack of hyrnenal tissue, suggesting that the alleged crime caused
the absence of hymenal tissue. ld_. at 534. The Western District held, "To allow the State to
show that [victim’s] hymen was absent, with the clear and calculated implication that its absence
was caused by intercourse with the defendant, then to forbid defendant to show that [victim] had
had intercourse with another, was violative of defendant’s right to a fair trial.” § at 535-36.
Courts have applied the rationale of Douglas in situations where the State emphasized the
victim’s unusual sexual knowledge, noting that it would violate a defendant’s due process rights
to prohibit evidence that the victim may have obtained the unusual sexual knowledge from
another source. State v. Samuels, 88 S.W.3d 71, 82 (Mo. App. W.D. 2002).

Rycraw posits that evidence of Victim’s alleged intercourse with a person other than

Rycraw was admissible under a third exceptiorr, as “[e]vidence of immediate surrounding

 

4 The exceptions to the rape shield statute are listed in Section 491 .015.1(1)-(4).

13

 

circumstances of the alleged crime.” Section 491.015.1(3). The third exception is very similar
to the theory of res gestae. State v. Smith, 157 S.W.3d 379, 383 (Mo. App. E.D. 2005). Broad|y
speaking, res gestae “includes circumstances, facts, and declarations incidental to the main fact
or transactiorr, and necessary to illustrate its character, and acts, words, and declarations which
are so closely connected to the main fact or transaction as to constitute a part of it.” ld_. (citing
29A Am.Jur.Zd Evidence § 860 (1994)). Thus, acts shown under res gestae are admissible where
they “precede the offense immediately or by a short interval of time and tend, as background
inforrnation, to elucidate a main fact in issue.” SLith, 157 S.W.3d at 383 (citing w
Sherman, 637 S.W.2d 704, 706 (Mo. banc 1982)).

For example, in Srnith, the State charged Srnith with forcible rape. 157 S.W.3d at 380.

 

Under the State’s theory, Smith, the victirn, and victim’s boyfriend were all at Srnith’s house. §
The victim and her boyfriend had consensual sex in a bedroom. _l_d_. When the boyfriend left the
room, Srnith entered and raped the victim. § Under Smith’s contradictory theory, the three had
consensual sex together. ld”. The boyfriend first taped the victim masturbating. The victim and
the boyfriend then had consensual sex, and their Srnith joined _I_cL At trial, Smith attempted to
introduce the tape of the victim masturbating. Ll~. at 381.

This Court considered whether the third exception to the rape shield statute allowed the
admission of the masturbation video into evidence at trial. Ld. at 383. We held that the third
exception applied because the videotaping, the consensual sex, and the alleged crime all occurred
on Srnith’s bed in the same evening. Ld. We found the masturbation video relevant to the
charged crime because it was filmed a short time prior to the alleged crime and was “intertwined
with the events that night.” Ld. Because the video provided the factfinder with a complete and

coherent picture of Srnith’s version of events, the video should have been admitted into evidence

14

 

as part of the res gestae. § Accordingly, we found an abuse of discretion and reversed § at
383-84.

Rycraw argues that the same exception applies here. Rycraw maintains that the alleged
intercourse with Rycraw’s nephew was immediately surrounding the alleged crimes because the
alleged intercourse occurred within the timeframe charged in the State’s indictmentl The flaw in
Rycraw’s argument is that Rycraw was charged with committing his crimes between May 7,
2010, and May 7, 2012, a two-year period. Rycraw suggests that evidence of Victim’s alleged
intercourse with his nephew was “immediately surrounding” the crime because the incident fell
“within the [two-year] charged time period.” Rycraw’s argument fails. There is no evidence in
the record that Victim’s alleged intercourse with the third person occurred on the same day or at
any time close to the time of Rycraw’s alleged abuse. The record does not support a finding that
Victim’s alleged intercourse with Rycraw’s nephew was “intertwined” with the events
surrounding the charged crimes, nor did it “precede the offense immediately or by a short

interval of time.” Snrith, 157 S.W.3d at 383. Thus, the evidence of alleged intercourse was not

 

admissible under Section 491 .015.1(3).

Rycraw next contends that evidence of Victim engaging in sexual intercourse with the
third party would have shown an alternative source of Victim’s sexual knowledge This
argument is unavailing for several reasons. First, an alternate source of sexual knowledge does
not fall under any of the explicit exceptions to the rape shield statute. E Section 491 .01 5.1(1)-
(4). Further, the record does not suggest that the State argued Rycraw’s acts were the only
source of victim’s sexual knowledge C_f. Samuels, 88 S.W.3d at 82. Nor did the State argue

that Victim suffered an injury solely due to Rycraw’s sexual abuse. §§ Douglas, 797 S.W.2d at

15

534»35. Thus, applying the rape shield statute would not violate Rycraw’s constitutional right to
a fair triai.5

Because the evidence of Victim having intercourse With a third person was not
admissible under the protections mandated by the rape shield statute, the trial court did not abuse
its discretion in excluding the evidence. Point Two is denied.

C. Point Three_Evidence of Victim Viewing Pornographv

Rycraw next argues that the trial court abused its discretion by precluding evidence that
Victim had previously viewed her brother’s pornographic video. Specifically, Rycraw asserts
that the evidence did not fall within the rape shield statute, and the evidence was therefore
admissible because it was relevant On appeal, Rycraw provides two theories of relevance T he
first theory of relevance is that Victim’s prior viewing of pornography was relevant to her
credibility with respect to all of the charged offenses because the evidence provided an alternate
source of Victim’s knowledge of idiosyncratic sexual details. For example, Victim’s testimony
about the characteristics of semen and her demonstration of the hand-to-penis contact might have
derived from the pornographic content rather than her personal experience with Rycraw.
Rycraw’s second theory of relevance is that the evidence provided an alternate source_other
than Rycl'aw-of the pornography furnished to Victim. The presence of an alternate source of
pornography was relevant to defend against Rycraw’s charge of furnishing pornography to a
minor (Count VI).

However, Rycravv only presented this second theory of relevance to the trial court.

During the pretrial motion in limine, defense counsel argued, “l think it’s relevant because one of

 

5 Rycraw also asserts that this evidence was relevant to the sexual-misconduct charges to show that Victim would
not have been alarmed by seeing Rycraw’s genitals. This argument is also meritless The relevance of such
evidence does not matter, as discussed above, unless the evidence first falls within an exception to the rape shield
statute under Section 491.015.1. Thus, we do not reach the relevance analysis under Section 491.015.2.

16

 

the charges is that my client is charged with furnishing pornographic materials to a minor.”
Defense Counsel did not argue that the evidence was relevant to Victim’s credibility. Defense
counsel relied on the same argument When the issue was raised again at trial. An appellant
cannot broaden the scope of his objections beyond the grounds relied upon at trial. weigh
M)n, 207 S.W.3d 24, 43 (Mo. banc 2006); State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc
20]5). Thus, Rycraw is limited to this second theory of relevance on appeal.

Even assuming arguendo that trial-court error occurred, Rycraw suffered no prejudice
Rycraw was acquitted on Count Vl-the only count charging Rycraw with furnishing
pornography to Victim. Given Rycraw’s acquittal on the only count for which the evidence was
purportedly relevant, there is no reasonable probability that any error affected the outcome of the
trial. Z_in_k, 181 S.W.3d at 73. Accordingly, we find no prejudice Point Three is denied.

III. Point Four_Jul'y Instructious

Rycraw asserts that the trial court erred in submitting verdict directors for the separate
charges of first~degree statutory sodomy (Counts I, III, and V) and the separate charges of sexual
misconduct (Counts ll and IV). Relying on our Supreme Court’s decision in State v. Celis-
GL'cia, 344 S.W.3d 150 (Mo. banc 201 l), Rycraw contends that the general allegations of sexual
misconduct set forth in the verdict directors allowed jurors to possibly base their decision on
separate and distinct acts, and as a result, failed to ensure that the jury rendered a unanimous
verdict.

A. Standard of Review

We review de novo, as a question of law, whether the jury was properly instructed St_ate
v. Richards, 300 S.W.Bd 279, 281 (Mo. App. W.D. 2009); State v. Murray, 428 S.W.3d 705, 709
(l\/[o. App. E.D. 2014). However, we only reverse a jury’s verdict based on a faulty jury

instruction if the defendant has suffered prejudice Richards, 300 S.W.3d at 281. “If the giving

17

 

of [an] instruction is error, it will be held harmless only when the court can declare its belief that
it was harmless beyond a reasonable doubt.” I_d_. (quoting State v. Erwin, 848 S.W.2d 476, 483
(Mo. banc 1993)). “A defendant need not establish that the jury was more likely than not to have
misapplied the instruction lt is sufficient that there is a ‘reasonable likelihood that the jury has
misapplied the challenged instruction’ in a way which violates the defendant’s constitutional
rights.” Er_win, 848 S.W.2d at 483 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

B. Constitutional Requirement of Jurv Unanimitv

Article l, Section 22(a) of the Missouri Constitution guarantees a criminal defendant the
right to a unanimous jury verdict. Celis-Garcia, 344 S.W.3d at 155 (citing State v. Hadley, 815
S.W.2d 422, 425 (Mo. banc 1991)). The danger of a non-unanimous jury verdict often arises in a
“multiple acts” case Celis-Garcia, 344 S.W.3d at 155-56. A “multiple acts” case occurs “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.” §

ln “rnultiple acts” cases, the threat to unanimity exists when the verdict director generally
lists the elements of the offense and those elements could be satisfied by differing and distinct
acts of the defendant introduced into evidence State v. Watson, 407 S.W.3d 180, 184 (Mo. App.
E.D. 2013). in this situation, the possibility exists thatjurors would carefully follow the trial
court’s instructions, yet base their vote to convict a defendant on differing conduct. § Because
individual jurors could rely upon differing conduct to base their finding of guilt under the
instructions, the possibility exists that the jury of twelve might agree on a finding of guilt, but not
unanimously agree upon the conduct supporting the defendant’s conviction. ldH. Again, We are
principally concerned that the jury’s verdict reflects unanimous agreement upon the same act or

acts upon which the alleged crime is based. §§ Celis~Garcia, 344 S.W.3d at 156.

18

 

The concern with “multiple acts” cases is illustrated by the facts of Celis~Garcia, where
the evidence considered by thejury suggested that the defendant committed at least seven
separate acts of statutory sodomy against two victims at different times and in different locations.
344 S.W.3d at 156. The victims alleged that acts of sodomy occurred on the back porch, in the
bedroom, in the bathroom, and in an outside shed. _l~_dh., The verdict directors included broad
language, allowing the jury to convict the defendant if it believed “that between [specifled dates]
the defendant or [hcr boyfriend] placed her or his hand on [the victim’s] genitals. . ..” I_cL
Importantly, under the verdict director, a jury could have convicted the defendant of sodomy
resulting from hand-to-vagina contact if the jury believed that the incident occurred in the
bedroom, or on the back porch, or in the shed, or in the bathroom ld_. Thus, the verdict director
impermissibly allowed a conviction for any hand-to-vagina contact for any of the defendant’s
actions, rather than ensuring unanimous juror agreement that a specific act at a specific location
occurred. l_dl at 158.

Celis-Garcia identified two alternative solutions to remedy a “muitiple acts” problem in a
way that protects a defendant’s constitutional right to a unanimous verdict. 344 S.W.3d at 157.
First, the State can identify a particular criminal act to support each individual charge and
submit that individual charge with its own verdict director. _I_d_.; MAI-CR 3d 304.02, Note on Use
7. An example of this election occurred in State v. Edwards, where the trial evidence depicted
“multiple, distinct acts of sodomy, each of which could have served as the basis for a criminal
charge.” 365 S.W.3d 240, 247 (Mo. App. W.D. 2012). The State identified the specific act of
sodomy by specifying in the verdict director that the sodomy was penis-to-anus contact. §

Because there was only once instance of penis-to~anus contact in evidence, “this specificity in

19

 

the verdict director prevented the jury from finding Edwards guilty of any sodomy not involving
penile to anal contact.” I_d_.

A second means of addressing the instructional challenge in a “multiple acts” case allows
the State to charge that a defendant engaged in multiple acts under one count of statutory
sodomy. However, in such cases, the verdict director must specifically describe those individual
criminal acts, and require the jury to agree unanimously on the act or acts that occurred Qelis;
M, 344 S.W.3d at 157; MAI~CR 3d 304.02, Note on Use 7; MAl-CR 3d 304.16. “The key
to juror unanimity is a finding that encompasses the same criminal conduct and the same singular

event.” MAI-CR 3d 304.02, Note on Use 7.

C. Analysis

Applying the above doctrine, we consider Rycraw’s claims that the jury instructions
violated his right to a unanimous verdict. Rycraw argues that we should reverse Counts l-V.
Counts l and ill allege separate instances of Rycraw’s hand touching Victim’s genitals. Counts
ll and IV allege separate instances of Rycraw exposing his genitals to Victim. Finally, Count V
alleged that Rycraw forced his penis to touch Victim’s mouth. We will address Rycraw’s
arguments in turn.

1. Counts I and III: Hand-to-Vagina Contact
The conduct at issue in Counts l and III is Rycraw’s alleged sodomy by touching
Victim’s vagina with his hand on two separate occasions lnstruction Nos. 5 and 7 are the
verdict directing instructions for the charges of first-degree statutory sodomy set forth in Counts
l and IlI. These instructions state, in relevant parts:
Instruction No. 51 As to Count 1, if you find and believe from the evidence

beyond a reasonable doubt: First, that the defendant knowingly placed his
hands on [Victini’s] genitals

20

 

lnstruction No. 7: As to Count III, if you find and believe from the evidence
beyond a reasonable doubt: First, that tiie defendant knowingly placed his
hands on [Victiin’s] genitals o second time (Emphasis added.)

Rycraw notes that the only distinction in the verdict directors between Counts land Ill is
the language “a second tiine,” and suggests that this modifier fails to describe the alleged crimes
with enough detail to ensure that “the jury unanimously convicted [him] of the same act or acts.”
Celis-Garcia, 344 S.W.3d at 156.

Conversely, the State argues that the words “a second time” sufficiently distinguish
between Counts I and ll because the phrase alerted the jury to whether the charge pertained to
the first incident of hand~to~vagina sodomy in the bedroom or to the second incident, which
occurred in the bedroom at a later date The State correctly notes that the verdict directors mirror
the language “first time” and “second time” as used by the Victim to distinguish between the two
acts, and further notes that the prosecutor stressed this distinction in closing argument

lmportantly, the record presents evidence of only two possible instances of hand-to-
vagina contact, both of which occurred at different times in Rycraw’s bedroom. The first
incident occurred while Victim was watching television in the bedroom. The second act of halid-
to~vagina contact occurred at a different time in Rycraw’s bedroom after Rycraw allegedly lured
Victim into his bedroom by asking her to bring the cat. The verdict directors for Counts l and IIl
follow the guidance of Celis~Garcia by charging Rycraw with two separate counts, one for the
first act (Count I) and one for the second act (Count III) and describing the separate acts with
sufficient clarity so as require juror unanimity to render a conviction on both counts. We see no
potential for juror confusion by limiting the modifei' in Iiistruction 7 to the phrase “a second
time” because the evidence presented the jurors with only two acts of sodomy, the first and then

the second. Point 4 is denied with regard to Counts I and lll.

21

 

2. Counts II and IV: Genital Exposure

Rycraw asserts that the verdict directors for Counts ll and IV also violated his right to a
unanimous july verdict We agree

lnstructions Nos. 6 and 8 are the verdict directing instructions for the charges of sexual
misconduct set forth in Counts 11 and lV. The conduct at issue in Counts ll and IV was
Rycraw’s alleged exposure of his genitals to Victim on two separate occasions The verdict
directors for Counts ll and IV were patterned in the same way as those in Counts land lll. The
verdict directors for Counts ll and lV of sexual misconduct state, in the relevant parts:

lnstructions No. 6: As to Count II, if you find and believe from the evidence
beyond a reasonable doubt: First, that the defendant exposed his genitals

instructions No. 8: As to Count IV, if you find and believe from the evidence
beyond a reasonable doubt: First, that the defendant exposed his genitals a
second time (Emphasis added.)

The circumstances of these sexual-misconduct verdict directors are distinguishable from
the hand-to~vagina sodomy allegations set forth in Counts l and ill above The evidence relating
to Counts land lIl suggested only two acts of hand-to-vagina sodomy, which were charged as
two counts. Similarly, the State charged Rycraw in Counts II and IV with committing two
distinct acts of sexual misconduct as a result of exposing his genitals to Victim. But the evidence
presented to the jury suggests three distinct and separate instances where Rycraw is alleged to
have exposed his penis to Victim: (1) the first time in the bedroom where hand-to-vagina contact
allegedly occui'red, (2) in the bathroom where hand-to~penis contact allegedly occurred, and (3)
the second time in the bedroom where hand-to-vagina contact allegedly occurred.

The challenge presented with this scenario is that the jurors were not required to
unanimously agree on the specific acts of genital exposure in order to render a guilty verdict iii

either Counts ll or IV. instruction No. 6 (Count ll) requires the jury to find only that the

22

 

defendant exposed his genitals. lnstruction No. 8 (Count lV) requires the jury to find only that
the defendant exposed his genitals a second time What act must the jury conclude provides the
basis for conviction uirder Instruction 6-the first exposure in the bedroom or the exposure in the
bathroom? What act nrust the jury conclude provides the basis for conviction under lnstruction
8»-the second exposure time in the bedroom or the exposure in the bathroom? Without greater
specificity in the verdict directing instructions as mandated by Celis-Garcia, we have no way of
knowing if the jury unanimously agreed upon which of these three acts provided the basis for the
two convictions rendered under lnstruction Nos. 6 and 8. Uiilike the verdict-directing
instructions for Counts l and lll, the evidence suggests the possibility of three separate acts of
genital exposur'e, which is orie more than the number of acts described in the verdict directing
instructions. This circumstance is markedly dissimilar from the facts presented in Counts l and
lll, which presented no opportunity for a non-unanimous verdict. There, the two acts of hand-to-
vagina sodomy set forth in the verdict directing instructions matched the only two possible acts
of hand-to-vagina sodomy presented by the evidence

A hypothetical allocation of juror votes illustrates the possibility of non~unanimous
verdicts with regard to Counts ll and lV. Assuming all other elements are met, the following

presents a hypothetical breakdown of jurors on the issue of whether Rycraw exposed himself to

 

 

Victim:
lurors 1~3Mwlui'ors4-6luiois 7-9 Jurors 10~12
First Time ln Bedroom Guilty Guilty Guilty Not Guilty
ln Bathroom Guilty Guilty Not Guilty Guilty
Second Tiine ln Bedroom Guilty Not Guilty Guilty Guilty

ln this hypothetical, only nine jurors (Jurors l-9) believed that Rycraw exposed his perils to
Victim in the first bedroom incident, only ninejuror's (lurors 1~3 and 7-12) believed that

Rycr‘aw exposed his penis to Victim in the bathroom, and only nine jurors (Jurors 1-6 and 104

23

 

12) believed that Rycraw exposed his perils to Victim in the` second bedroom incident.
lrnpoi'tantly, none of the specific acts of genital exposure received a unanimous twelve-member
guilty vote

However, the verdict directors for Counts ll and lV would nevertheless allow our
hypothetical jury to render guilty verdicts for both counts. Under the verdict director for Count
ll, the jury could convict if it believed that Rycraw “exposed his genitals” to Victim. Our
hypothetical jury would have found guilt because all twelve jurors believed that Rycraw
“exposed his genitals” at least once Likewise, under the verdict director for Count lV, a jury
could convict if it found that Rycraw exposed his genitals to Victim “a second tinie.” Our
hypothetical jury would have convicted because all twelve jurors believed that Rycraw exposed
his genitals twice-or, “a second time.”

But our hypothetical jurors did not unanimously agree that any specific act occurred;
instead, each act of alleged exposure received only nine guilty votes. Tlitis, “the possibility
exists that jurors follow all instructions, yet individually choose differing instances of the crime
on which they base the conviction.” M, 407 S.W.3d at 184. Accordingly, the verdict
directors for Counts ll and lV constituted instructional error.

Having found instructional error, we must consider whether this instructional error
constituted prejudice to Rycraw. Here, the evidence suggested at least three distinct instances of
genital exposure_the first time in the bedroom, the bathrooin, and the second time in the
bedroomebut the State only charged two counts Thus, unlike the facts in Counts l and lll
above, twelve jurors possibly could believe that Rycraw exposed his genitals to Victim and that

Rycraw exposed himself to Victim “a second time,” without reaching unanimous agreement on

24

 

any specific act. Our hypothetical above supplies one of many ways a jury could reasonably
reach two guilty verdicts without unanimous agreement on any specific act.

The State argues that Rycraw’s “right to a unanimous verdict was protected when the
State during closing argument identified each specific act borne out by the evidence and attached
each act to a specific count.” We recognize that the State went through each count and assigned
a specific act to each count Specifrcally, the State argued that Count ll occurred the first time in
Rycraw’s bedroom and that Count lV occurred the second time in Rycraw’s bedi'oom. We see
no misstatements of the evidence or any attempt to confuse the jurors given the various charges.
l"Iowever, to find no prejudice beyond a reasonable doubt, we would be required to assume that
the jury followed the prosecutor’s argument We cannot We presume the jury followed the
instructions given by the trial court, State v. McFadden, 369 S.W.3d 727, 752 (l\/lo. banc 2012),
not the prosecutor’s closing argumentsl Not only does the plain language of the verdict directors
allow iron-unanimous verdicts on Counts ll and lV, but lnstruction No. 16 specifically tells the
jury that closing arguments are not evidence lnsti'uction No. 16 also tells the jury, “lt is your
duty, and yours alone, to render such verdict under the law and the evidence as in your reason
and conscience is true and just.” Given these instructions_that we presume were followed~»-we
cannot conclude beyond a reasonable doubt that the jury disregarded the plain language of the
verdict directors (for Counts ll and IV) and the other instructions, and decided instead to follow
the prosecutor’s argument

We do not know the specifics of the jury deliberation, nor can we pretend to know What

happened in that jury room. But a reasonable likelihood,6 as shown in the above hypothetical, of

 

6 We note a difference in our standard of review from Celis-Garcia, where the instructional error was unpreser'ved
and reviewed under our plain-error standard 344 S.W.3d at 158~59. Thus, we found that the instructional errors
misdirected the jury in a way that affected the verdict, resulting in manifest injustice lgL Here, we are dealing with
preserved error; Rycraw’s burden to show prejudice is less. Rather than showing that error affected the verdict in a

25

 

non-unanimous guilty verdicts on Counts ll and lV precludes us from finding that the trial
court’s error was harmless beyond a reasonable doubt. Point 4 is granted wth regard to Counts Il
and lV.

3. Count V: Penis-to-Mouth Contact

Rycraw asserts that the verdict director for Count V violated his right to a unanimous jury
verdict. We are not persuaded

The verdict director for Count V of first-degree statutory sodomy stated, in the relevant
patt: “As to Count V, if you find and believe from the evidence beyond a reasonable doubt: First,
that the defendant knowingly put his penis in [Victim’s] mouth ....”

Rycraw maintains that the State presented evidence of multiple acts of penis-to-mouth
contact and that the single verdict director failed to specifically identify which act supported the
conviction for statutory sodomy. Our review of the record shows that the State introduced
evidence of a singular incident of mouth-to-penis contact. ln her videotaped interview, Victim
stated that Rycraw made her put her mouth on his “balls” during the second time with Rycraw in
the bedroom. ln her testimony at trial, Victim testified that Rycraw made her “suck [h]is
front area” and that her “lips touched it a little bit.” Victim’s trial testimony was sparse on
details in comparison to her CAC interview, which was conducted in a private room with a
single interviewer Defendant argues that the variations in Victim’s testimony suggested that
Victim identified two separate acts of pcnis-to-mouth contact. We find this argument
unpersuasive

lmportantly, unlike the allegations of hand-to-vagina contact and genital exposure,

nothing in the record suggests that evidence was presented to the jury describing multiple,

 

way that caused manifest injustice, Rycraw must only show a “reasonable likelihood” that thejury misapplied the
faulty instruction to deprive him of his constitutional right. Erwin, 848 S.W.Zd at 483.

26

 

 

distinct events of penis-to-mouth contact; rather, Victim testified at trial to the same individual
act that she described in the CAC interview. To the extent that Victim’s characterization or
description of the act in the CAC interview was inconsistent or conflicting with her testimony at
trial, the jury was entitled to reject Victim’s testimony. w State v. Kuehnlein, 456 S.W.Bd 510,
514 (Mo. App. E.D. 2015). However, our record does not suggest that the State introduced
evidence as two “distinct criminal acts” of penis-to-mouth contact. E Celis-Garcia, 344
S.W.3d at 155.

Because the evidence supports the occurrence of only one instance of penis-to-mouth
contact, the specific requirement of penis~to-mouth contact in the verdict director prevented the
july from finding Rycraw guilty of Count V for any act not involving penis-to-mouth contact.
w Edwards, 365 S.W.3d at 247. Rycraw’s right to a unanimous verdict was guaranteed under
the verdict director for Count V because the jury could only convict Rycraw of Count V if it
unanimously agreed that the single act of penis-to~mouth contact occurred.

ln conclusion, we grant Rycraw’s point in part. With respect to lnstruction Nos. 5, 7, and
9 we find no error. With respect to Instruction No. 6 and 8, we find instructional error that
prejudiced Rycraw’s constitutional right to a unanimous verdict. Accordingly, we reverse
Rycraw’s convictions under Counts ll and lV for second-degree sexual misconduct

Conclusion

Thejudgment of the trial court is reversed with respect to Counts ll and lV. The
judgment is affirmed in all other respects. The case is remanded to the trial court for further

proceedings consistent with this opinion.

Ktttnr s. oDENWALD, fudge

lames M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr., J., concurs.

27

 

