                     In the Missouri Court of Appeals
                             Eastern District
                                       DIVISION THREE

STATE OF MISSOURI,                              )   No. ED100299
                                                )
       Respondent,                              )   Appeal from the Circuit Court
                                                )   of the City of St. Louis
vs.                                             )
                                                )   Hon. Steven R. Ohmer
MARCUS WEAVER,                                  )
                                                )   Filed:
       Appellant.                               )   February 24, 2015

       Marcus Weaver appeals from the judgment entered on his convictions after a jury trial on

three counts of statutory sodomy in the first degree, four counts of statutory sodomy in the

second degree, one count of child molestation in the first degree, two counts of misdemeanor

child molestation and four counts of incest. We affirm as modified, with correction of two

clerical errors in the judgment and sentence.

       The sufficiency of the evidence is not challenged on appeal. Viewed in the light most

favorable to the verdicts, the evidence showed that Weaver repeatedly engaged in sexual

misconduct in various ways with his step-daughter over the course of several years. When

confronted with the allegations by police, Weaver initially denied that he had ever touched the

victim in a sexual way, but also admitted that he drank a lot and that, if it happened, he did not

remember it. Eventually, Weaver admitted to police that he had touched the victim’s vagina and
buttocks with his hand and licked her vagina. At trial, however, he testified that he had never

touched the victim inappropriately and claimed he had falsely confessed.1

           In Point I, Weaver claims the State improperly referred to his criminal proclivities and

speculated about his propensity to commit future crimes during the following portion of its

closing argument:

                  Yesterday defendant told you that when he confessed to the police, that he
           made a false confession because he would do anything to save his family. This
           may surprise you, but in a way I agree with him. Defendant’s confession may
           save his family because on your finding him guilty of the crimes that he
           perpetrated on a child, an innocent child, the family will be able to move on. [The
           victim] will remain safe. [Her sister] will be safe. And any future child whom
           defendant would have a sexual interest . . .

At this point, defense counsel objected that this was “improper argument,” which was overruled.

The court then admonished the jury that this was argument and they should be guided by the

evidence as they recalled it and by the court’s instructions. In Weaver’s motion for new trial, the

asserted basis for the objection changed to “inflammatory and irrelevant.”

           As the State points out, comments about the victim’s and her sister’s safety were

permissible references to Weaver’s stated reason for confessing to the crimes. As for the brief

reference to Weaver’s propensity to commit future criminal acts, the objection “improper

argument” is not specific enough to preserve the issue for appellate review. State v. White, 870

S.W.2d 869, 873 (Mo. App. W.D. 1993). Moreover, Weaver has not maintained the same

grounds for the objection at trial, in his post-trial motion and on appeal. “The general rule with

respect to preservation of error is that an objection stating the grounds must be made at trial, the

same objection must be set out in the motion for new trial and must be carried forward in the

appeal brief to preserve it.” State v. Petty, 967 S.W.2d 127, 140 (Mo. App. E.D. 1998). Thus,

we can review only for plain error, which is rarely found in closing argument.                     State v.
1
    Weaver has not challenged the voluntariness or admissibility of these confessions on appeal.

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McFadden, 369 S.W.3d 727, 747 (Mo. banc 2012). Reversal is required only if the comment had

a decisive effect on the jury’s determination. Id. The defendant bears the burden to prove the

decisive significance of the comment, which Weaver has failed to do in this case. This was an

isolated reference to the notion that Weaver might commit the crime again, and the trial court

immediately admonished the jury that this was argument and should be guided by the evidence

and the court’s instructions.

       Point I is denied.

       In Point II, Weaver claims there was a fatal variance between the indictment and the

verdict-directing instruction on count 5 for child molestation in the first degree. The indictment

charged Weaver with this crime “by squeezing [the victim’s] breast with defendant’s hand.” The

instruction stated that he “sucked upon the breast of [the victim].”

       Weaver admits this claim of error was not preserved because he failed to object to the

instruction at trial. We have discretion to review it for plain error, therefore, only if manifest

injustice would otherwise occur. State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001).

“Instructional error seldom rises to the level of plain error.” State v. Drisdel, 417 S.W.3d 773,

786 (Mo. App. E.D. 2013). In the context of whether a variance amounts to a plain error

affecting the verdict, the question is whether the defendant can demonstrate prejudice in that he

would have been better able to defend his case had the change not occurred. Id. Weaver’s

ability to present his defense to this charge did not hinge on whether he touched or sucked on the

victim’s breast—rather, at trial, he retracted his confession and denied any sexually inappropriate

conduct at all. Moreover, the record demonstrates that Weaver had notice of this change at least

by the close of the State’s case. At that point, counsel acknowledged that there was sufficient




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evidence to submit this count on the basis of sucking and was aware of—and did not object to—

the State’s plan to submit that as the method instead of touching.

          Point II is denied.

          In Point III, Weaver contends the trial court erred in allowing the victim to testify about

waking up with her underwear removed when she was very young. He claims this evidence is

not relevant and caused jurors to speculate that Weaver was responsible for these uncharged bad

acts. We disagree.

          First, this cannot be deemed evidence of uncharged bad acts because—as Weaver himself

points out in his brief—the victim was clear in her testimony that she did not know who removed

her underwear on those occasions. See State v. Byrd, 423 S.W.3d 882, 888 (Mo. App. E.D.

2014) (evidence runs afoul of rule against propensity evidence if it shows defendant has

committed, been accused of, been convicted of, or been definitely associated with another

crime).     Second, even if this testimony suggested Weaver’s propensity to commit sexual

offenses, it is not reasonable to believe, as Weaver argues, that the jury’s guilty verdicts were

based on or influenced by this testimony alone and not on all of the other evidence before it

supporting the multiple and various acts of sexual misconduct that were charged. Again, there is

no challenge to the sufficiency of that evidence. To find error of any kind from the admission of

this evidence, we would have to conclude that the jury believed only this part of the victim’s

testimony and disbelieved all of her other explicit testimony about the charged sexual conduct.

We decline to reach such an unreasonable result.

          Point III is denied.

          In Points IV and V, Weaver seeks plain error review of two mistakes in the trial court’s

written judgment and sentence. As the State concedes, the trial court made a clerical error in the



                                                   4
written judgment by checking the wrong box classifying statutory sodomy in the first degree in

count 3 as a class D felony. Statutory sodomy in the first degree is an unclassified felony, which

the trial court correctly indicated in the judgment on the other counts of statutory sodomy in the

first degree.

        The other error relates to the consecutive terms of imprisonment the trial court imposed

on counts 1, 3, 4 and 5. In the written judgment and sentence, the court imposed the following

sentences on these counts: twenty years on count 1; twenty years on count 3 to run consecutive

to count 1; twenty years on count 4 to run consecutive to counts 1 and 3; and fifteen years on

count 5 to run consecutive to counts 1, 3, 4 and 5. Weaver contends that by running the sentence

consecutive to itself, the court impermissibly created an infinite loop of imprisonment terms.

But, as the State points out, it was clearly not the trial court’s intention to impose a never-ending

sentence on count 5. Rather, at the sentencing hearing, the court orally pronounced the sentence

on each of these counts as described above (including the mistaken consecutive running of count

5 to itself), but then announced that the total term of imprisonment would be seventy-five years.

That total term is the sum of the three twenty-year terms on counts 1, 3 and 4, plus the fifteen-

year term entered on count 5. That oral pronouncement of the total sentence would be in conflict

with running the sentence on count 5 consecutively to itself for infinity, and therefore the oral

pronouncement of a total term of seventy-five years controls. See State v. Chambers, 330

S.W.3d 539, 546 (Mo. App. E.D. 2010).

        This Court may correct both of these errors without remand, where, as here, the record

leaves no doubt as to the trial court’s intention. See Warren v. State, 429 S.W.3d 480, 482 (Mo.

App. E.D. 2014) and State v. Schnelle, 398 S.W.3d 37, 48 (Mo. App. W.D. 2013) (relying on

Rules 84.14 and 30.23); see also Chambers, 330 S.W.3d at 546.



                                                 5
In addition, the State agrees with the defendant as to the correct judgment and sentence.

        Points IV and V are granted.

        In Point VI, Weaver argues that the trial court plainly erred because the verdict-directors

for the statutory sodomy in the second degree counts omitted the word “knowingly,” which he

claims is required by the applicable Missouri Approved Instruction. Weaver quotes from what

he cites as “MAI-CR3d 320.13 (3-1-06),” but which actually appears to be language contained in

a version of that MAI that became effective after his trial. At the time of this trial in June of

2013, MAI 320.13 provided, in relevant part, that the jury must find “the defendant [Describe

acts constituting deviate sexual intercourse and name of victim…]” and did not include a

requirement that the defendant committed those acts “knowingly.” The MAI was then revised to

require the jury to find “the defendant knowingly [Describe acts constituting deviate sexual

intercourse.], with [Identify victim].” MAI 320.13 (9-1-14). Although this MAI states that it

applies to offenses committed after June, 5, 2006, it was to be used on or after September 1,

2014. Thus, the failure to include the word “knowingly” in the instructions at Weaver’s June

2013 trial is not plain error.

        Point VI is denied.

        The judgment and sentence is corrected as follows: (a) count 3 for statutory sodomy in

the first degree is an unclassified felony (b) the fifteen-year sentence on count 5 is consecutive to

counts 1, 3 and 4. In all other respects, the judgment and sentence are affirmed.




                                                      ROBERT G. DOWD, JR., Judge
Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.


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