State v. Armstrong
| Decision Date | 21 August 2018 |
| Docket Number | No. ED 105771,ED 105771 |
| Citation | 560 S.W.3d 563 |
| Parties | STATE of Missouri, Respondent, v. Joshua K. ARMSTRONG, Appellant. |
| Court | Missouri Court of Appeals |
Casey A. Taylor, 1000 Wet Nifong, Bldg 7, Suite 100, Saint Louis, MO. 65203, for appellant.
Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO. 65102, for respondent.
Joshua K. Armstrong ("Armstrong") appeals the judgment of the trial court following a jury trial in which he was convicted of two counts of attempted first-degree statutory rape, seven counts of first-degree statutory sodomy, six counts of attempted first-degree statutory sodomy, and six counts of first-degree child molestation. Armstrong raises nineteen points on appeal. Armstrong argues the trial court plainly erred in submitting the verdict directing instructions for sixteen counts because the instructions violated his constitutional right to a unanimous jury verdict. Armstrong also argues there was insufficient evidence presented at trial to support three of his convictions. Finding no error, we affirm.
This Court reviews the evidence in the light most favorable to the jury’s verdict. State v. McCauley , 528 S.W.3d 421, 423 (Mo. App. E.D. 2017). The State charged Armstrong with two counts of attempted first-degree statutory rape, in violation of Sections 566.032 RSMo (2000)1 and 564.011; seven counts of first-degree statutory sodomy, in violation of Section 566.062; six counts of attempted first-degree statutory sodomy, in violation of Sections 566.062 and 564.011; and six counts of first-degree child molestation, in violation of Section 566.067. The case proceeded to a jury trial.
At trial, Victim testified Armstrong is her father. In 2016, Armstrong, Victim’s mother ("Mother"), Victim, and her younger brother and half-brother lived together in an apartment in Ste. Genevieve. Victim was twelve turning thirteen years old. One night in February 2016, when Mother was working the night shift, Victim testified Armstrong came into her bedroom while she was asleep, and tried to climb on top of her and pull down her sweatpants. Armstrong said, "Let me do it." Victim said, "No," and pushed Armstrong away. Later that same night, Victim testified Armstrong came back into her bedroom. Armstrong touched Victim’s vagina and breasts. Armstrong also grabbed Victim’s hand and tried to get her to touch his penis. Victim testified during the month of February, Armstrong came into her bedroom at night, and touched her vagina "at least ten" times, touched her breasts "at least five" times, and tried to get her to touch his penis "at least ten" times.
In March 2016, Victim testified she, Mother, and brother moved into a different apartment. However, Armstrong continued to live in the apartment in Ste. Genevieve. Victim and her brother stayed overnight at Armstrong’s apartment when Mother worked night shifts during the week. Then, in mid-May 2016, Victim, Mother, and brother moved to her grandparents' home, and Victim only spent weekends at Armstrong’s apartment. Victim testified that from March 2016 until July 2016, almost every time she stayed overnight at Armstrong’s apartment, he came into her bedroom at night. Each time, Armstrong touched her vagina and her breasts, and tried to get her to touch his penis. Victim testified during March, April, and May, Armstrong touched her vagina "at least ten" times each month, touched her breasts "at least five" times each month, and tried to get her to touch his penis "at least ten" times each month. In June, Armstrong touched her vagina "about five" times, touched her breasts "about two or three" times, and tried to get her to touch his penis "about five" times. Victim testified she did not disclose the abuse because Armstrong threatened to rape her if she told Mother.
In addition, one night in July 2016, Victim testified she was asleep in a recliner chair at Armstrong’s apartment. Armstrong turned on the light, causing Victim to wake up. Armstrong told Victim to lean her head back and close her eyes. Victim complied, then felt something touch her lips. When she opened her eyes, it was Armstrong’s penis, and Victim pushed him away. A few weeks later in July, Victim testified she was in her bedroom at Armstrong’s apartment. Armstrong came into Victim’s bedroom, and tried to climb on top of her and pull down her pants. After this last incident, Victim testified she refused to go to Armstrong’s apartment. A few months later, Victim told Mother that Armstrong had sexually abused her and threatened to rape her.
Mother testified that in February 2016, the family lived together in the apartment in Ste. Genevieve, and she would leave Victim in Armstrong’s care when she worked the night shift. After they moved out in March, Victim would stay overnight at Armstrong’s apartment during the week while Mother worked. When they moved in with Victim’s grandparents in mid-May, Victim continued to stay overnight at Armstrong’s apartment, though, less frequently. Mother testified that around late July 2016, Victim would "throw a fit" when she had to spend the night at Armstrong’s apartment, and Mother would have to force Victim to go. Mother stopped forcing Victim to go in August or September. Mother testified that after Victim informed her of the sexual abuse, she brought Victim to the Children’s Advocacy Center ("CAC"), where a forensic interviewer conducted a videotaped interview with Victim.
In the CAC interview, which was admitted into evidence at trial and played for the jury, Victim recounted the multiple, identical acts of sexual abuse she described in her trial testimony. Victim stated that from February 2016 to July 2016, every time she stayed at Armstrong’s apartment, Armstrong came into her bedroom at night and touched her vagina. Victim also stated Armstrong touched her breasts and tried to get her to touch his penis between February and July. Victim did not indicate how many times these acts occurred during each month.
Additionally, Armstrong voluntarily spoke with police and, although, he initially denied Victim’s allegations, he eventually admitted touching Victim’s vagina and breasts outside her clothing. Armstrong also told police Victim touched his penis outside his clothing. Armstrong further admitted he took his penis out and tried to get Victim to perform oral sex on him in the recliner chair. The videotaped interview was admitted into evidence at trial and played for the jury.
At the conclusion of trial, the trial court instructed the jury on the twenty-one counts charged. Armstrong did not object to the instructions as offered at trial. Nor did Armstrong raise instructional error in his motion for new trial. The jury found Armstrong guilty on all counts. Armstrong was sentenced to fifteen years for each count, with the sentences for the counts of attempted statutory rape, statutory sodomy, and attempted statutory sodomy to run consecutively, for a total of two hundred and twenty-five years' imprisonment. This appeal follows.2
Armstrong raises nineteen points on appeal. For ease of analysis, we first address Points I–XVI together and then address Points XVII–XIX together.
In Points I–XVI, Armstrong argues the trial court plainly erred in submitting verdict directing instructions for each of the sixteen counts involving first-degree statutory sodomy (Counts 3–8), attempted first-degree statutory sodomy (Counts 9–13), and first-degree child molestation (Counts 16–20), and sentencing Armstrong because the verdict director for each count failed to specify a particular incident of abuse or instruct the jurors that they must unanimously agree on the same incident to support each conviction, and, thereby, violated his constitutional right to a unanimous jury verdict.
In Points XVII–XIX, Armstrong argues the trial court erred in overruling his motions for judgment of acquittal, and imposing sentence and judgment upon him as to Count 14 (attempted first-degree statutory sodomy), Count 21 (first-degree child molestation), and Count 15 (first-degree statutory sodomy) because there was insufficient evidence presented at trial to support the convictions.
Points I–XVI involve the verdict directing instructions for six counts of first-degree statutory sodomy (Counts 3–8), five counts of attempted first-degree statutory sodomy (Counts 9–13), and five counts of first-degree child molestation (Counts 16–20). Armstrong argues the trial court plainly erred in submitting each of the sixteen verdict directors and sentencing him because the verdict directors failed to specify a particular incident of abuse or instruct the jurors that they must unanimously agree on the same incident to support each conviction, and, thereby, violated his constitutional right to a unanimous jury verdict.
Armstrong concedes he did not properly preserve these sixteen claims of error and requests we review the claims for plain error under Rule 30.20.3 See State v. Riley , 440 S.W.3d 561, 567 (Mo. App. E.D. 2014). Rule 30.20 provides, in pertinent part, that plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted.
Review for plain error is a two-step process. State v. Halliday , 461 S.W.3d 50, 54 (Mo. App. E.D. 2015). First, the appellate court must determine whether the asserted claim of plain error facially establishes substantial grounds for believing the trial court committed a plain error which resulted in manifest injustice or miscarriage of justice. Id. Plain error is error that is evident, obvious, and clear. State v. Myles , 479 S.W.3d 649, 655 (Mo. App. E.D. 2015). Instructional error is plain error when it...
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