         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
STATE OF MISSOURI,                             )
                                               )
               Respondent,                     )
                                               )
v.                                             )       WD81782
                                               )
JERRILL A. GREEN,                              )       Opinion filed: December 3, 2019
                                               )
               Appellant.                      )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
             THE HONORABLE PATRICK W. CAMPBELL, JUDGE

                      Division One: Edward R. Ardini, Jr., Presiding Judge,
                      Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

       Jerrill Green (“Green”) appeals his convictions of sodomy in the second degree, assault in

the third degree, and felonious restraint entered by the Circuit Court of Jackson County (“trial

court”) following a jury trial. He raises four points on appeal: (I) that the trial court plainly erred

by entering a conviction for felonious restraint on count VI, which was not a lesser-included

offense of the charged crime of kidnapping; (II) and (III) that the trial court plainly erred in

submitting verdict-directing instructions relating to counts II and IV that permitted the jury to

convict him without agreeing to the specific act he committed, thereby violating his right to a

unanimous verdict; and (IV) that the trial court erred by ordering his sentence for sodomy in the

second degree to run consecutive to his sentence for felonious restraint based on an erroneous
interpretation of section 558.026, RSMo.1 We affirm in part, reverse in part and remand for a new

trial.

                                    Factual and Procedural Background2

           On the night of July 21, 2016, D.H.3 was waiting for a ride home when she was approached

by Green in his vehicle. D.H. agreed to perform sex acts on Green at his residence in Grandview

for one hour in exchange for eighty dollars.

           When Green and D.H. arrived at Green’s home, they proceeded to the bedroom and D.H.

took off her clothes and wig. D.H. began performing oral sex on Green but, after a few minutes,

was unable to continue because her mouth had become dry. D.H. indicated that she wanted to stop

and would refund his money. Green told D.H. that she had already been paid and was “going to

earn it.” Green forced his penis into D.H.’s mouth, causing her to gag.

           When D.H. again asked if she could leave, Green responded that “he was going to have to

get his nine, and he began to reach at the foot of his bed like he was reaching for a gun.” Believing

that Green was reaching for a weapon, D.H. resumed performing oral sex on him. Shortly

thereafter, Green’s ankle monitor sounded and his phone rang. Green answered the call and spoke

with someone for a few minutes.

           After Green completed the call, D.H. grabbed the phone and dialed 911. She could not

speak to the dispatcher so screamed for help. In an effort to stop D.H. from screaming, Green

wrapped the telephone cord around her neck, strangling her.




1
    Statutory citations are to the Missouri Revised Statutes, updated through the 2015 supplement.
2
 We recite the facts in the light most favorable to the jury’s verdicts. See State v. Adams, 571 S.W.3d 140, 142 (Mo.
App. W.D. 2018).
3
    We use initials to protect the victim’s identity pursuant to section 595.226, RSMo Supp. 2017.

                                                            2
         D.H. was able to get up and tried to run to the front door, but was stopped by Green. He

pulled her into the living room near the sofa and put his hands around her neck, choking her.

         Meanwhile, upon receiving the 911 call, officers from the Grandview Police Department

were dispatched to Green’s home for an unknown disturbance. When they arrived, they heard a

woman screaming and attempted to kick down the door. At that point, the door to the house opened

from the inside and officers observed Green and D.H., both naked. D.H. was covered in blood and

had a laceration on her forehead, swelling under her eyes, and ligature marks on her neck. D.H.

ran outside and collapsed on the sidewalk.

         D.H. was taken by ambulance to Research Medical Center for examination. The laceration

on her head required stitches, and she had a concussion. The emergency room doctor also noted

that D.H. had multiple contusions and abrasions on her body, including abrasions on her neck

“consistent with something being wrapped around it, either hands or some sort of rope-like

material[.]”

         Green proceeded to trial on six counts: count I, rape in the first degree;4 count II, sodomy

in the first degree; count III, assault in the first degree for striking D.H.’s head against the floor;

count IV, assault in the second degree for strangling D.H.; count V, assault in the second degree

for punching D.H.; and count VI, kidnapping. At trial, three Grandview police officers, the

emergency room doctor, the sexual assault nurse examiner, and D.H. testified. The jury acquitted

Green of counts I, III, and V. The jury found Green guilty of the lesser-included offenses of

sodomy in the second degree on count II and assault in the third degree by strangulation on count

IV; in addition to felonious restraint on count VI. The trial court sentenced Green to five years for

sodomy in the second degree, time served for assault in the third degree, and eight years for


4
 D.H. testified that Green had sexual intercourse with her on his bed and again attempted to penetrate her in the living
room after he stopped her from leaving.

                                                           3
felonious restraint. The trial court ordered the sentence for sodomy in the second degree to be

served consecutive to the sentence for felonious restraint, stating that the consecutive sentence was

required under section 558.026, RSMo. Green appeals. Additional facts are stated throughout this

opinion, as relevant to our discussion herein.

                                                   Discussion

        Green raises four points on appeal. In his first point, he alleges that the trial court plainly

erred in convicting him of felonious restraint because he was not charged with that crime and it is

not a lesser-included offense of kidnapping. In Points II and III, Green claims that the trial court

plainly erred in instructing the jury on counts II and IV, arguing the relevant verdict directors did

not require the jury to unanimously agree on the specific act supporting each conviction. In Point

IV, Green alleges that the trial court erred by ordering his sentence for sodomy in the second degree

to be served consecutive to his sentence for felonious restraint based on the trial court’s erroneous

application of the law relating to the requirements of section 558.026, RSMo.

                                  Point I – Felonious restraint conviction

        In his first point, Green alleges that the trial court plainly erred by entering a conviction for

felonious restraint, arguing he was not charged with felonious restraint and felonious restraint is

not a lesser-included offense to the charged crime of kidnapping. We agree.

        Green was charged by information in lieu of indictment with kidnapping under section

565.110, RSMo. During the instructions conference, the State requested the jury also be instructed

on felonious restraint as a lesser-included offense to kidnapping. Green’s counsel announced she

had no objection and it was submitted to the jury. At Green’s request, false imprisonment was also

submitted to the jury.5 The jury found Green guilty of felonious restraint.


5
  False imprisonment is a lesser-included offense of both felonious restraint and kidnapping when the kidnapping is
effectuated by confinement as it was in this case. State v. Cobbins, 21 S.W.3d 876, 880 (Mo. App. E.D. 2000) (stating

                                                         4
         Green acknowledges that because he did not object to the felonious restraint instruction6

or the entry of conviction for that offense, review of this claim can only be for plain error. See

State v. Johnson, 284 S.W.3d 561, 568 (Mo. banc 2009) (stating “[n]on-preserved issues are

reviewed for plain error[.]”). “Plain-error review involves a two-step analysis.” State v.

Muhammad, 334 S.W.3d 164, 166 (Mo. App. E.D. 2011) (citation omitted). “First, we determine

whether the trial court committed plain error, which is error that is evident, obvious, and clear.”

Id. (citation omitted). If we find that the trial court committed plain error, we may then consider

“whether manifest injustice or miscarriage of justice actually resulted from the error.” Id. (citation

omitted).

         “[A] person cannot be convicted of a crime with which the person was not charged unless

it is a lesser included offense of a charged offense.” State v. Parkhurst, 845 S.W.2d 31, 35 (Mo.

banc 1992) (citation omitted). In count VI, Green was charged with kidnapping. At the State’s

request, felonious restraint was also submitted to the jury; and it was for this offense that the jury

returned a guilty verdict and the trial court entered judgment of conviction. However, “[f]elonious

restraint is not a lesser included offense of kidnapping because it requires proof of an element,

exposure to a substantial risk of harm, which is not included in the kidnapping statute.” Williams

v. State, 524 S.W.3d 553, 565 (Mo. App. W.D. 2017) (citations omitted).7 Therefore, the trial court



that false imprisonment is a lesser-included offense of felonious restraint). State v. Ayansu, 558 S.W.3d 135, 142 (Mo.
App. E.D. 2018) (stating that false imprisonment is considered a nested lesser-included offense to a kidnapping charge
based on confinement).
6
 The State argues that we should decline to review Green’s claim for plain error based on the statement of Green’s
counsel that she had no objection to the submission of the felonious restraint instruction. We note that Green does not
now raise a claim of instructional error but rather asserts that the entry of conviction for felonious restraint is
constitutionally flawed. While a nexus unquestionably exists between the giving of the felonious restraint instruction
and the conviction for that offense later entered, we elect to provide plain error review to Green’s claim.
7
 Relevant to this case, kidnapping requires that a person “unlawfully confine[ ] another without his or her consent for
a substantial period, for the purpose of . . . [i]nflicting physical injury on . . . another.” § 565.110.1(5), RSMo.
Felonious restraint requires that a person “knowingly restrain[ ] another unlawfully and without consent so as to

                                                          5
plainly erred by entering a conviction for an offense that was neither charged nor constituted a

lesser-included offense of the charged crime.

         Because we find plain error, we must now determine whether that error resulted in manifest

injustice or a miscarriage of justice. “Manifest injustice is determined by the facts and

circumstances of the case, and the defendant bears the burden of establishing manifest injustice.”

State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017) (quoting State v. Baxter, 204 S.W.3d 650,

652 (Mo. banc 2006)). “To be entitled to relief under the plain error rule, an appellant must go

beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his

substantial rights.” Id. (quoting State v. Winfield, 5 S.W.3d 505, 516 (Mo. banc 1999)). “In other

words, the appellant must show that the error affected his rights so substantially that a miscarriage

of justice or manifest injustice will occur if the error is left uncorrected.” Id. (quoting Winfield, 5

S.W.3d at 516).

         The Eastern District of this Court was called upon to address a similar issue in State v.

Pullum, 281 S.W.3d 912 (Mo. App. E.D. 2009). In Pullum, the defendant was charged with

multiple offenses including statutory sodomy in the second degree. Id. at 914. However, the

statutory sodomy count was “misdescribed” in the captions and summaries contained in the initial

complaint, indictment, and substitute information as being a charge for statutory rape in the second

degree, and “the parties relied on this misdescription in prosecuting and defending the case.” Id.

at 917. This mutual misunderstanding persisted throughout the proceedings and Pullum was

ultimately convicted of the crime of statutory rape in the second degree. Id. at 916. Noting that

statutory rape in the second degree was not a lesser-included offense of the charged crime of




interfere substantially with his liberty and expose[ ] him to a substantial risk of serious physical injury.” § 565.120.1,
RSMo.

                                                            6
statutory sodomy in the second degree, the court held that “[t]he entry of judgment on a conviction

not charged in the substitute information constitutes plain error requiring reversal.” Id. at 917, 918.

         The State attempts to avoid the holding of Pullum by characterizing the issue before us as

one of simple variance between the charging document and verdict directing instruction.8 The

State’s efforts are unavailing. “Under the ‘variance’ caselaw, ‘when a crime may be committed by

any of several methods, . . . the method or methods submitted in the verdict directing instruction

must be among those alleged in the information.’” State v. Hendren, 524 S.W.3d 76, 83 (Mo. App.

W.D. 2017) (quoting State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992)). “A variance is not fatal,

and will not require reversal, unless it submits a new and distinct offense from that with which

defendant was charged.” Id. (quoting State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004)). Here,

felonious restraint was not a separate method of committing the crime of kidnapping; instead, it

was an entirely new and distinct uncharged offense. Thus, variance jurisprudence is of no relevance

to our analysis.

         “Due process requires that a defendant not be convicted of an offense not charged in an

indictment [or information].” Pullum, 281 S.W.3d at 916 (citations omitted). Green was not

charged with felonious restraint, and felonious restraint is not a lesser-included offense to the

charged crime of kidnapping. Because Green was convicted of a crime with which he was not

charged, we must, as the court did in Pullum, find that manifest injustice has occurred and reverse

and vacate Green’s conviction for felonious restraint.




8
 The State further argues that Pullum is not controlling because the elements of statutory sodomy in the second degree
and statutory rape in the second degree were clearly different while the elements of kidnapping and felonious restraint
are “substantially the same.” Regardless of whether the elements of kidnapping and felonious restraint are similar,
“substantially the same” is not the test for an offense to be considered a lesser-included offense.


                                                          7
                                          Instructions on Remand

       Having concluded that Green’s conviction for felonious restraint must be reversed, we must

now determine the scope of the proceedings permitted on remand. At oral argument, the parties

agreed that if we grant Point I and reverse Green’s conviction for felonious restraint, then we must

remand to the trial court for a new trial on count VI. However, the parties disagreed on the offense

to be retried. The State argued that it was entitled to retry Green on the original charge of

kidnapping. Green argued that double jeopardy principles would prohibit a new trial on kidnapping

and limit any retrial to the offense of false imprisonment. We agree with Green.

       It is well-settled that the jury’s guilty verdict for felonious restraint in the original trial

served as an implicit acquittal of Green on the charge of kidnapping. See State v. Bradshaw, 593

S.W.2d 562, 566 (Mo. App. W.D. 1979) (“The conviction for second degree murder was an

implicit acquittal of first degree (felony) murder so that retrial for that offense would put the

defendant twice in jeopardy”) (citing Green v. U.S., 355 U.S. 184, 190 (1957) (holding that in

addition to reliance on "the assumption of implicit acquittal," retrial on higher offense is also

prohibited by double jeopardy because jury had full opportunity to return a verdict on the higher

offense, and was dismissed without doing so and without defendant's consent)); State v. Moseley,

735 S.W.2d 46, 48 (Mo. App. W.D. 1987) (“conviction of the lesser [offense] impliedly acquits

the defendant of the greater offense”); Shopbell v. State, 686 S.W.2d 521, 523 (Mo. App. W.D.

1985) (“When the jury convicted movant of second-degree murder, they impliedly acquitted him

of first-degree murder.”); Ray v. State, 532 S.W.2d 478, 482 (Mo. App. S.D. 1975) (citing Price

v. Georgia, 398 U.S. 323 (1970) (“Having been found guilty only of manslaughter, movant had

been ‘implicitly’ acquitted of the greater offense of first degree murder and he could not be retried

for murder.”)). Under these circumstances, a retrial for kidnapping would be barred by the double



                                                 8
jeopardy clause of the United States and Missouri Constitutions. See Shopbell, 686 S.W.2d at 523;

Bradshaw, 593 S.W.2d at 566.

         The only lesser offense to kidnapping that was properly submitted and not reached by the

jury in the original trial was false imprisonment.9 As a result, we agree with Green that, on remand,

the State may retry Green only for the offense of false imprisonment.

         Point I granted.

              Points II and III – Instructional error relating to count II and count IV

         In his second and third points, Green alleges that the trial court erred in submitting

Instructions No. 9 and No. 11 relating to count II (sodomy) and Instruction No. 20 relating to count

IV (assault), arguing that each verdict director failed to identify the specific act committed by

Green constituting each offense, allowing for non-unanimous jury verdicts. Green acknowledges

that he failed to object to any of these instructions on unanimity grounds and that review, if any,

would be for plain error.

         We first address the State’s argument that Green waived appellate review of Points II and

III by virtue of being the party that offered Instructions No. 11 and No. 20—the verdict directors

upon which he was found guilty of counts II and IV. Missouri courts have held “that a defendant

cannot complain about an instruction given at his request.” State v. Bolden, 371 S.W.3d 802, 806

(Mo. banc 2012) (citing State v. Leisure, 796 S.W.2d 875, 877 (Mo. banc 1990)); see also State v.

Oudin, 403 S.W.3d 693, 698 (Mo. App. W.D. 2013) (stating that the defendant’s “failure to object

to the instruction given and her submission of an instruction containing the same alleged error

results in waiver of her claim on appeal.”).


9
  False imprisonment was submitted to the jury with a required finding that could have been, but was not, included
in the verdict director for felonious restraint. We therefore cannot find that by convicting Green of felonious
restraint, the jury necessarily found each of the essential elements submitted to it by the verdict director for false
imprisonment.

                                                           9
       [T]he proffering of an incorrect instruction to the trial court is an invited error by
       the party who proffered the instruction. It defies logic and the clear directives of
       Missouri law to allow a defendant to both proffer an instruction to the trial court
       and to complain that the trial court’s submission of that instruction to the jury is
       reversible error. . . . It is axiomatic that a defendant may not take advantage of self-
       invited error or error of his own making.

Bolden, 371 S.W.3d at 806 (internal quotations and citations omitted). However, in State v. Celis-

Garcia, our Supreme Court rejected the State’s waiver argument when the defendant had failed to

object to the State’s verdict directors and had offered her own verdict directors that included the

same alleged defect. 344 S.W.3d 150, 154 n.3 (Mo. banc 2011) (citations omitted).

       In Oudin, this Court reconciled the apparent inconsistency between the Supreme Court’s

finding in Celis-Garcia and its holding in Bolden:

       We recognize that, in [Celis-Garcia], the Missouri Supreme Court refused to apply
       waiver where the defendant submitted an instruction that was ultimately refused
       but nevertheless suffered from the same defect she . . . challenge[d] on appeal. But
       we find Celis-Garcia distinguishable . . . . In Celis-Garcia, the instructions
       submitted by both the State and the defendant complied with MAI, but the
       applicable MAI was determined to be in conflict with the Missouri Constitution.
       By failing to object to the MAI-compliant instruction, the defendant failed to
       preserve her claim on appeal, subjecting it to plain error review. But because the
       defendant submitted an MAI-compliant instruction, she did not create or commit
       any error that would result in waiver of her claim on appeal. Oudin, however,
       submitted an instruction that failed to comply with the MAI Notes on Use. Thus,
       unlike the defendant in Celis-Garcia, Oudin did create or commit an error[.] . . .
       Thus, we read Celis-Garcia and Bolden together to mean that, where a defendant
       submits a faulty instruction, the defendant waives appellate review as to the specific
       defect presented in the proffered instruction, regardless of whether the court
       ultimately uses the proffered instruction or the State’s version containing the same
       defect.

Oudin, 403 S.W.3d at 698 n.10 (internal quotations and citations omitted).

       More recently, in State v. Clay, 533 S.W.3d 710 (Mo. banc 2017), our Supreme Court held

that the defendant waived his claim that the trial court’s submission of a jointly proffered self-

defense instruction was plain error because he “invited the instructional error by proffering jointly

with the state a self-defense instruction that omitted the withdrawal language he now asserts should

                                                 10
have been included.” Clay, 533 S.W.3d at 715. In that case, the Court recognized that in Celis-

Garcia it “reaffirmed the principle that a defendant ‘does not waive plain error review by failing

to object to a faulty jury instruction or by failing to submit a correct instruction[,]’” but went on to

distinguish Clay from Celis-Garcia noting that “Mr. Clay actively collaborated in drafting the

instruction he now asserts was erroneous, and he ‘may not take advantage of self-invited error of

his own making.’” Id. at 715 (quoting Bolden, 371 S.W.3d at 806).

                                    Instructions No. 9 and No. 11

       In count II, Green was charged with sodomy in the first degree based on Green placing his

penis in D.H.’s mouth by use of forcible compulsion. At the instructions conference, the State

offered Instruction No. 9, the verdict director for sodomy in the first degree, which stated:

              As to Count II, if you find and believe from the evidence beyond a
       reasonable doubt:

             First, that on or about July 21, 2016, in the County of Jackson, State of
       Missouri, the defendant placed his penis in the mouth of D.H., and

               Second, that such conduct constituted deviate sexual intercourse, and

               Third, that defendant did so by the use of forcible compulsion, and

               Fourth, that defendant did so knowingly,

       then you will find the defendant guilty under Count II 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.

Green complains on appeal that Instruction No. 9 did not specify which incident of Green placing

his penis in D.H.’s mouth formed the basis of the sodomy offense “or otherwise require the jury

to unanimously agree on which underlying incident occurred[.]” Green did not object to the

submission of Instruction No. 9 when offered by the State and then offered Instruction No. 11, a



                                                  11
verdict director for the lesser-included offense of sodomy in the second degree, which the trial

court also submitted to the jury. Instruction No. 11 stated:

              As to Count II, if you do not find the defendant guilty of sodomy in the first
       degree as submitted in Instruction No. 9, you must consider whether he is guilty of
       sodomy in the second degree under this instruction.

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

             First, that on or about July 21, 2016 in the County of Jackson, State of
       Missouri, the defendant placed his penis into the mouth of D.H., and

               Second, that such conduct constituted deviate sexual intercourse, and

               Third, that defendant did so without the consent of D.H., and

               Fourth, that defendant knew that he did not have the consent of D.H.,

       then you will find the defendant guilty under Count II of sodomy in the second
       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.

A review of Instruction No. 11 reveals that it contained the same alleged deficiency Green

complains was contained in Instruction No. 9. Green attempts to minimize the import of his

proffered instruction to a finding of waiver by asserting that Instruction No. 11 simply tracked the

State’s instruction as it was required to do and that our Supreme Court’s refusal to apply waiver in

Celis-Garcia controls under these facts.

       We disagree. Based on our Supreme Court’s recent holdings in Bolden, 371 S.W.3d at 806,

and Clay, 533 S.W.3d at 715, and this Court’s reconciliation of Celis-Garcia in Oudin, 403 S.W.3d

at 698 n.10, we find that Green waived appellate review of the instructional error asserted in Point

III by submitting Instruction No. 11—from which the jury found him guilty—that contained the

specific defect complained of on appeal.



                                                 12
                                                Instruction No. 20

         The verdict director for assault in the third degree10 submitted to the jury stated:

                As to Count IV, if you find and believe from the evidence beyond a
         reasonable doubt:

               First, that on or about July 21, 2016, in the County of Jackson, State of
         Missouri, the defendant recklessly caused physical injury to D.H. by strangling her,
         and

                 Second, that defendant did not act in lawful defense of property as submitted
         in Instruction No. 22,

         then you will find the defendant guilty under Count IV of assault in the third 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.

         Similar to his argument directed at the verdict directors for the sodomy count, Green asserts

that the jury was presented with evidence of more than a single instance of strangulation against

D.H. and that Instruction No. 20 did not require the jury to unanimously agree to a specific

incident. Green attempts to avoid a finding of waiver relating to this claim of instructional error

by arguing that Instruction No. 20 was offered by the State. This assertion is not supported by the

record. The “dirty” copy of Instruction No. 20 indicates that it was submitted by Green. Green

counters that he simply added the defense-of-property tail to the State’s proffered instruction and

therefore Instruction No. 20 should be considered to have been submitted by the State. This claim

does not survive scrutiny as it ignores that the State objected to Instruction No. 20 arguing that the

defense-of-property language was not supported by the evidence. As a result, we find that it was




10
  Green objected to the submission of third degree assault, a misdemeanor, based on statute of limitations grounds.
The trial court overruled Green’s objection and agreed to submit his instruction for assault in the third degree to the
jury, which was identical to an instruction offered by the State but, as discussed later, added a lawful defense of
property tail.


                                                         13
Green who offered Instruction No. 20 and, by doing so, waived appellate review of his claim that

the trial court’s submission of Instruction No. 20 to the jury was erroneous. See Bolden, 371

S.W.3d at 806; Clay, 533 S.W.3d at 715; and Oudin, 403 S.W.3d at 698 n.10.

         Points II and III denied.11

                   Point IV – Consecutive sentencing under section 558.026, RSMo

         In his final point, Green alleges that the trial court erred by ordering his sentence for

sodomy in the second degree to run consecutive to the sentence for felonious restraint based on an

erroneous interpretation of section 558.026, RSMo.12

         Section 558.026.1(3) states:

         Multiple sentences of imprisonment shall run concurrently unless the court
         specifies that they shall run consecutively; except in the case of multiple sentences

11
  Even if Green had not waived review of these claims, we are dubious that the conduct at issue in Points II and III
constitutes multiple-act scenarios implicating unanimity concerns.

“A multiple acts case arises 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 (citation omitted). These types of cases usually involve repeated instances of sexual abuse against
minor victims. See State v. Escobar, 523 S.W.3d 545, 549 (Mo. App. W.D. 2017). “Because the victims are children
and often do not have a recollection of the specific dates on which the abuse occurred, the State in charging the
criminal conduct attempt[s] to set forth in generic terms the alleged criminal conduct within a certain timeframe.” Id.
“However, where there are repeated instances of the same charged criminal conduct within the same charged
timeframe, the possibility that a jury may convict based on different underlying acts presents the danger that a jury, in
finding the defendant guilty, has done so without unanimously agreeing on a specific instance of criminal conduct.”
Id.

Following Celis-Garcia, where our Supreme Court found that the verdict directors for multiple occurrences of hand-
to-genital contact were not sufficiently specific to require unanimous verdicts, 344 S.W.3d at 157, and other cases
with similar outcomes, appellants have alleged unanimity violations in cases beyond those involving sexual
misconduct against children. For example, in State v. Gilbert, the defendant alleged that verdict directors relating to
charges of assault of a law enforcement officer were insufficient because they failed to identify the specific locations
where he fired shots at individual officers who were pursuing him. 531 S.W.3d 94, 100 (Mo. App. W.D. 2017).

In Gilbert, we found that, although the defendant fired multiple shots at several officers during the pursuit, it was not
a multiple acts case because “the conduct here occurred during a single event, the pursuit of Gilbert after his escape
from prison, and lacked any intervening events or fresh impulses of motivation.” Id. at 101. Similarly, in this case,
both the conduct supporting count II, sodomy in the second degree, and count IV, assault in the third degree by
strangulation, occurred during a single course of conduct where Green and D.H. were involved in an approximately
five-minute altercation in Green’s home.
12
  Despite our reversal of Green’s felonious restraint conviction in Point I, due to the possibility of a retrial for false
imprisonment, resolution of Point IV is not moot.


                                                            14
         of imprisonment imposed for any offense committed during or at the same time as,
         or multiple offenses of, the following felonies: . . . Sodomy in the first degree,
         forcible sodomy, or sodomy[.]

         During sentencing, the State argued that section 558.026 required the trial court to impose

the sentence for sodomy in the second degree consecutive to the sentence for felonious restraint.

Green’s counsel objected, arguing that sodomy in the second degree did not fall under the statute’s

consecutive-sentence requirement. In pronouncing the consecutive sentences, the trial court noted

that “[m]y reading of 558.026 is that those sentences must be served consecutively and it will be

my order that they be served consecutively and that he will receive credit for time served.”

         On appeal, Green argues that “[t]he plain language of §558.026 does not include second-

degree sodomy, and the rules of statutory construction, including the statutory history of sodomy

crimes, require that second-degree sodomy not be included in §558.026.1 as one of the crimes for

which sentences must run consecutively.” The State concedes that the trial court ordered the

sentence for sodomy in the second degree to run consecutive to the sentence for felonious restraint

based upon a mistaken belief that it was required to do so under section 558.026 and that we must

remand to the trial court for resentencing.

         We agree with the parties and vacate the sentence imposed by the trial court for sodomy in

the second degree and remand to the trial court for resentencing on count II.13

         Point IV granted.




13
  If Green is retried on count VI for false imprisonment and he is convicted, the trial court will have the discretion
but is not statutorily required to order the sentence for sodomy in the second degree to run consecutive to any sentence
imposed for count VI.

                                                          15
                                          Conclusion

       Green’s convictions for assault in the third degree and sodomy in the second degree are

affirmed. Green’s conviction for felonious restraint is reversed and remanded for a new trial for

false imprisonment. Green’s sentence for sodomy in the second degree is vacated, and we remand

for resentencing.




                                            __________________________________________
                                            EDWARD R. ARDINI, JR., JUDGE

All concur.




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