STATE OF MISSOURI,                              )
                                                )
                        Respondent,             )
                                                )
         vs.                                    )   No. SD35350
                                                )
WADE A. STUCKLEY,                               )   FILED: May 13, 2019
                                                )
                        Appellant.              )

            APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
                        Honorable Thomas E. Mountjoy, Judge
AFFIRMED
         Wade Stuckley was convicted of sodomizing and molesting his girlfriend’s
(now wife’s) four-year-old child (“Victim”). Each of his three points on appeal
seeks plain-error review, two raising Celis-Garcia complaints 1 and one charging
double jeopardy.
         A plain-error claim “places a much greater burden on a defendant than an
assertion of prejudicial error.” State v. Ralston, 400 S.W.3d 511, 520 (Mo.App.
2013). A defendant must show not only that the trial court committed evident,
obvious, and clear error, but also the existence of manifest injustice or a
miscarriage of justice. State v. Mueller, 568 S.W.3d 62, 75 (Mo.App. 2019). To
prove plain instructional error, the defendant “must demonstrate the trial court so
misdirected or failed to instruct the jury that the error affected the jury’s verdict.”


1   State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), discussed infra.
Celis-Garcia, 344 S.W.3d at 154 (citations and internal quotation marks
omitted). Even clear and obvious instructional error rarely works a manifest
injustice or miscarriage of justice demanding plain-error reversal.       State v.
Parsons, 339 S.W.3d 543, 549 (Mo.App. 2011). The outcome of plain-error
review depends heavily on the facts and circumstances of each case. Ralston, 400
S.W.3d at 520.
      Given the facts and circumstances of this case, and particularly how it was
tried, Stuckley fails to convince us that anyone committed evident, obvious, and
clear error, or that modified instructions would have changed the verdicts. We
affirm the convictions.
                                  Background
      After several police interviews, the state charged and later tried Stuckley on
three counts alleged to have happened at home between May 28 and June 13, 2014:
          1. A bath incident where Stuckley admitted to police that he had
      inserted his pinky into Victim’s vagina. This was charged, presented at
      trial, and instructed upon as Count I.
         2. A bedroom tickling incident where Stuckley admitted to police that
      he probably had inserted his thumb into Victim’s vagina, Victim said
      “Don’t touch me down there,” and Stuckley immediately apologized. This
      was charged, presented at trial, and instructed upon as Count II.
          3. Other tickling incidents in Victim’s bedroom where Stuckley’s hand
      touched Victim’s vagina without penetration. This was charged, presented
      at trial, and instructed upon as Count III.
      This matchup of acts with charges continued through trial, beginning with
the prosecutor’s opening-statement reference to what was charged as Count I and
would be the subject of Instruction 5 (our emphasis):
              You’re going to hear from the defendant how he describes
          one particular instance that stands out in his mind. He
          remembers carrying four-year-old [Victim] out of the bathtub
          after she was getting a bath. He’ll describe to you that he
          remembered she was wet and slippery and his hands were wet
          and slippery from helping her wash her hair.
             He’ll talk about remembering his right hand on her upper
          back and his left hand underneath the buttocks. He remembers
          the thumb of his left hand brushing up against the lips of her
          vagina. He’ll talk about her slipping and his pinky finger

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          inserting into her vagina about one inch or up to his first
          knuckle. He’ll tell police officers that once that happened, he
          yanked it out real quick.
      The prosecutor then moved to what was charged as Count II and would be
the subject of Instruction 6 (our emphasis):
              The defendant remembered another particular
          circumstance in which his fingers had been inserted inside
          [Victim’s] vagina in that two-week period. You’ll hear him
          describe to police officers that when he would put [Victim] to
          bed at night, he would often tickle her. On this particular
          incident, he remembered her wearing a dress nightgown, with
          panties.
              He talked about tickling her on her upper leg, inner thigh,
          and back of leg area. On this particular night, his left hand
          again, the thumb this time, slipped inside the elastic band of the
          leg part of her underwear and into her vagina, again about one
          inch or up to the first knuckle.
              That particular incident stood out to the defendant because
          he remembers four-year-old [Victim] saying, “No, don’t touch
          me there.” And he said to her, “I’m sorry. I was just tickling. It
          was an accident.” And again he told officers that he pulled his
          thumb out real quick once that happened.
      Finally, the prosecutor briefly touched on what was charged as Count III
and would be the subject of Instruction 7 (our emphasis):
          The defendant also remembers several other times, about three
          or four, that his hand and fingers grazed against [Victim’s]
          vagina when he was tickling her.
      Presentation of evidence was consistent with these matchups, as were
closing arguments and the verdict-directing instructions, where jurors had to agree
that Stuckley:
          •   “inserted his finger” into Victim’s vagina for guilt on Count I under
              Instruction 5,
          •   “inserted his thumb” into her vagina for guilt on Count II under
              Instruction 6, and
          •   “touched the genitals of [Victim] with his hand” for guilt on Count III
              under Instruction 7.
      Stuckley’s trial defense was to admit these touchings and penetrations, but
deny they were prompted by sexual desire as the instructions required for guilt on
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each count. The jury acquitted Stuckley on Count I (statutory sodomy, finger
insertion), and found him guilty on Count II (statutory sodomy, thumb insertion)
and Count III (child molestation, genital touching without penetration).
       We take Stuckley’s three points out of order for convenience.
                      Point 2 – Instruction 6/Celis-Garcia
       In Celis-Garcia, our supreme court considered Missouri’s constitutional
right to a unanimous jury verdict in a “multiple acts” case, i.e., one where “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.” 344 S.W.3d at 155-56 (our emphasis).
       For example, this would have been a multiple-acts case had the state tried
all of Stuckley’s acts as one child-molestation count, or both vaginal penetrations
as one statutory-sodomy count. In those situations, the verdict directors would
have needed to “differentiate between the various acts in a way that ensured the
jury unanimously convicted [Stuckley] of the same act or acts.” Id. at 156. “‘The
defendant is entitled to a concurrence of the minds of the 12 jurors upon one
definite charge of crime.’” Id. at 155 (quoting State v. Jackson, 146 S.W. 1166,
1169 (Mo. 1912)).
       But the state did not charge or try this as a multiple-acts case. Instead, per
one of our supreme court’s Celis-Garcia recommendations, the state elected to
submit particular criminal acts in separate charges. 344 S.W.3d at 157; State v.
Flores, 437 S.W.3d 779, 791 (Mo.App. 2014). It charged, tried, and instructed
upon the two vaginal penetrations as separate counts differentiated by thumb vs.
finger penetration.    It also charged, tried, and instructed upon the bedroom
incidents separately: statutory sodomy (thumb penetration) vs. child molestation
(other fondlings without penetration). 2 Not surprisingly, the court and parties
thus tried and seemingly perceived this as not being a multiple-acts case.
       Yet astute appellate counsel has found and now proffers this brief snippet


2Multiple incidents in this Count III charge do not present a Celis-Garcia problem as
explained in State v. Henry, 568 S.W.3d 464, 476-77 (Mo.App. 2019); State v.
Armstrong, 560 S.W.3d 563, 572-74 (Mo.App. 2018); and State v. Walker, 549
S.W.3d 7, 11-12 (Mo.App. 2018).

                                          4
from early in Stuckley’s final police interview:
            I don’t know if that hand may have – the thumb or something
            went up in there when I picked her up [from the bathtub] like that
            or not. I don’t recall it going in there.
Point 2 asserts this was evidence that Stuckley twice vaginally penetrated Victim
with his thumb (at bedtime as he testified, but also during the bath incident) such
that Count II would be a multiple-acts count with a verdict director, Instruction 6,
that violated Celis-Garcia.
         While we are skeptical that a fleeting and equivocal denial of thumb
penetration raises a Celis-Garcia concern in the context of this case, 3 the issue is
whether Stuckley has shown, as he must for plain-error relief, that any error was
evident, obvious, and clear. Mueller, 568 S.W.3d at 75. This case was tried by a
very experienced criminal-trial judge, a defense attorney who previously had
raised Celis-Garcia as appellate counsel in this court, 4 and a prosecutor’s office
that charged and tried the case consistent with Celis-Garcia principles. Plainly,
no one perceived the now-touted snippet – more a denial of penetration than an
admission, only 10 seconds of a 54-minute sound recording played during a two-
day trial – as having put Celis-Garcia in play. Error or not, we see no evident,
obvious, and clear Celis-Garcia trigger in any real-time, real-world sense of those
words.
         Although that failing alone nixes plain-error relief (Mueller, 568 S.W.3d
at 75), Stuckley also fails to show manifest injustice. Celis-Garcia’s stated
concern was juror unanimity about a defendant’s acts and manifest injustice from
a failure in that regard. For example:
            [T]he fact that Ms. Celis-Garcia relied on evidentiary
            inconsistencies and factual improbabilities respecting each
            specific allegation of hand-to-genital contact makes it more
            likely that individual jurors convicted her on the basis of
            different acts. The Court finds that the verdict directors


3 Cf. State v. Watson, 512 S.W.3d 94, 97-98 (Mo.App. 2017)(no unanimity concern
when victim’s testimony did not establish multiple acts of digital penetration and
defendant admitted to only one such act).
4 See State v. Rose, 421 S.W.3d 522 (Mo.App. 2013), abrogated by Hoeber v. State,

488 S.W.3d 648 (Mo. banc 2016).

                                          5
           misdirected the jury in a way that affected the verdict, thereby
           resulting in manifest injustice.
344 S.W.3d at 159 (our emphasis). Similar reasoning may – or may not – even fit
certain cases where defendants employ a general or unitary defense that the victim
lied about everything and none of the alleged acts occurred. See Hoeber, 488
S.W.3d at 656-58; Sanders v. State, 564 S.W.3d 380, 384 n.5 (Mo.App. 2018).
       But here, Stuckley admitted the acts alleged and charged. The defense
theme from opening statement through closing argument was that Stuckley did
touch or penetrate Victim as alleged, but never with criminal (sexual) intent. Actus
reus was never at issue, only mens rea. Given that defense, Stuckley fails to explain
why Instruction 6 needed to be more act-specific or so misdirected the jury as to
affect the verdict. 5 Point 2 fails.
                      Point 3 – Instruction 7/Celis-Garcia
       Stuckley’s complaint about Instruction 7, which required jurors to find that
he “touched the genitals of [Victim] with his hand,” cites
           •   Victim’s testimony about bedroom touchings,
           •   Stuckley’s testimony and police statement about bedroom
               touchings, and
           •   Stuckley’s testimony and police statement about whether he may
               have accidentally brushed Victim’s genitals during the bath
               incident,
in asserting that Count III was a multiple-acts charge and Instruction 7 thus
violated Celis-Garcia.
       We do not understand Stuckley to claim that the multiple bedroom acts, of
themselves, raise Celis-Garcia issues. See note 2 supra. Stuckley’s equivocal
reference to a bath touching seems a weak concern given his defense strategy to
admit actus reus and deny only mens rea. But if Stuckley was concerned about

5 Indeed, this defense focus may offer reasons for competent defense counsel not to cite
Celis-Garcia. When a defendant admits acts, juror unanimity on that issue rarely is a
key defense concern. Also, Celis-Garcia instruction modifications (see 344 S.W.3d at
157) seem unlikely to meaningfully help a mens rea defense in that situation, but might
give the state more ammunition for closing argument. See Sanders, 564 S.W.3d at 382,
383, 385.


                                           6
this bath reference, he needed to raise this at instruction conference so the court
and parties could timely address it. He did not, and his plain-error claim fails for
reasons already stated. See also Henry, 568 S.W.3d at 477 (state’s evidence and
argument focused the jury on one of two acts sufficiently to prevent manifest
injustice). We also note the jury’s Count I acquittal, effectively the bath incident,
further suggesting that jurors understood the instructions in the context of the case
and no manifest injustice occurred. Point denied.
                            Point 1 – Double Jeopardy
       In the points discussed previously, Stuckley portrayed each of his two
convictions as Celis-Garcia situations – a single charge provable by multiple,
independently-culpable acts in evidence. Here he draws on “instructing down”
cases that address a much different situation – a single act constituting multiple
crimes, specifically lesser-included offenses. Citing instructional-error cases that
treat child molestation as a lesser-included offense of statutory sodomy, Stuckley
claims double jeopardy because he was convicted of both.
       This hardly merits discussion. It was not double jeopardy if Stuckley “in law
and in fact committed separate crimes.” Flores, 437 S.W.3d at 793; see also State
v. Clark, 494 S.W.3d 8, 13 (Mo.App. 2016)(crimes are separate if counts are based
on different acts). Stuckley does not deny record evidence of separate acts to
support each of his convictions, so his unpreserved double-jeopardy claim does not
warrant review. Compare Flores, 437 S.W.3d at 792-94. 6 We deny Point 1 and
affirm the judgment and convictions.

DANIEL E. SCOTT, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCURS
MARY W. SHEFFIELD, J. –CONCURS




6 After being convicted of 17 child-sex counts, Flores sought plain-error double-jeopardy
relief as to four counts for which he claimed the supporting acts were indistinct from the
acts supporting six other counts. Id. at 793. The Western District declined plain-error
review because the record did not support Flores’ assertions (id.), double jeopardy was
not apparent from the record, and Flores had not facially established substantial grounds
for believing manifest injustice had occurred. Id. at 794.

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