State v. Celis–garcia

• Decision Date: 14 June 2011
• Docket Number: No. SC 90980.,SC 90980.
• Citation: 344 S.W.3d 150
• Parties: STATE of Missouri, Respondent,v.Maura L. CELIS–GARCIA, Appellant.
• Court: Missouri Supreme Court

344 S.W.3d 150

STATE of Missouri, Respondent,

v.Maura L. CELIS–GARCIA, Appellant.

No. SC 90980.

Supreme Court of Missouri, En Banc.

June 14, 2011.

Rosemary E. Percival, Public Defender's Office, Kansas City, for Appellant.Evan J. Buchheim, Attorney General's Office, Jefferson City, for Respondent.PATRICIA BRECKENRIDGE, Judge.

Maura Celis–Garcia was convicted by a jury of two counts of first-degree statutory sodomy in violation of section 566.062.¹ On appeal, she raises two points of error. First, she claims the trial court violated her constitutional right to a unanimous jury verdict because, although the state presented evidence of multiple, separate acts of hand-to-genital contact committed against her two minor daughters, the verdict directors failed to require the jury to agree to the specific acts she committed to find her guilty of a single count of statutory sodomy against each daughter.² Additionally, Ms. Celis–Garcia claims the trial court erred by overruling her objections to certain testimony by two expert witnesses because the testimony improperly vouched for the credibility of the victims, thereby invading the province of the jury. Because the trial court failed to instruct the jury that it had to agree on the same act or acts of hand-to-genital contact Ms. Celis–Garcia committed in finding her guilty of statutory sodomy, her right to a unanimous jury verdict was violated. Accordingly, the judgment is reversed, and the case is remanded.

Factual and Procedural Background

This Court reviews the evidence in the light most favorable to the jury's verdict. State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009). Viewed in that light, the facts of the case are as follows: Ms. Celis–Garcia is the mother of two minor daughters, C.J. and K.J. In April 2006, C.J. and K.J., ages five and seven, were removed from Ms. Celis–Garcia's custody and placed in foster care. After being placed with their foster family, the children informed their foster mother that Ms. Celis–Garcia and her boyfriend sexually abused the children on several occasions. On learning this information, the children's foster parents contacted the division of family services. The children later were interviewed and taken to a hospital where they were given sexual assault forensic examinations (SAFE). The SAFE reports indicated that C.J. had a segment of her hymen missing, while K.J.'s genitals showed no abnormalities.

Ms. Celis–Garcia subsequently was charged with one count of first-degree statutory sodomy against C.J. and one count of first-degree statutory sodomy against K.J. Ms. Celis–Garcia initially was tried for those crimes in September 2007. That case resulted in a mistrial due to jury deadlock. The case subsequently was retried two months later.

At the second trial, the state presented the testimony of both children through videotaped depositions. During her deposition, K.J. described three separate incidents of statutory sodomy. The first incident occurred on the enclosed back porch of Ms. Celis–Garcia's home. K.J. testified that Ms. Celis–Garcia and her boyfriend took her to the porch, removed her pants, and began touching her breasts, vagina, and buttocks with their hands.

The second incident occurred three or four days later in Ms. Celis–Garcia's bedroom. K.J. testified that her mother and her mother's boyfriend removed her clothes, restrained her hands and feet with handcuffs, and hung her on the bedroom wall by attaching the handcuffs to a rod or hook. Ms. Celis–Garcia and her boyfriend then touched K.J.'s genitals with their hands.

The third and final incident detailed by K.J. occurred when K.J. and C.J. were taking a shower. K.J. testified that her mother and her mother's boyfriend entered the bathroom, removed the two girls from the shower, and took them to the back porch where K.J. had been previously molested. Once on the back porch, Ms. Celis–Garcia and her boyfriend began touching both girls' private areas with their hands.

The state also showed the jury C.J.'s videotaped testimony. During her deposition, C.J. testified that Ms. Celis–Garcia and her boyfriend touched her genitals with their hands on more than one occasion. One incident occurred in Ms. Celis–Garcia's bedroom. C.J. testified consistently with her sister that Ms. Celis–Garcia and her boyfriend used handcuffs to hang the girls from the wall. C.J. also testified that another incident took place in a shed behind her home, where Ms. Celis–Garcia touched C.J.'s breasts and vaginal area. C.J. further testified that she witnessed multiple incidents in which her sister was touched by Ms. Celis–Garcia and her boyfriend.

The state also presented the testimony of Maria Mittelhauser, a forensic interviewer at a child advocacy center, and Ellen Walls, a licensed social worker, both of whom interviewed C.J. and K.J. regarding the allegations of statutory sodomy. During her testimony, Ms. Mittelhauser explained her interview process with the children. At the end of her testimony, the state played a video recording of the interview she conducted with the children. During the interview, the children recounted many of the incidents of statutory sodomy they described in their depositions. They also testified that Ms. Celis–Garcia and her boyfriend once entered the bathroom while the girls were bathing and began touching one or both of the girls' genitals. The incident was interrupted when one of the girls called to their grandmother, who came into the bathroom and stopped the incident from continuing.

During her testimony, Ms. Walls testified that the children also described to her incidents of sexual abuse by Ms. Celis–Garcia and her boyfriend. Like Ms. Mittelhauser, Ms. Walls also stated that the children described an occasion during which their grandmother stopped a sexual encounter involving their mother and the mother's boyfriend that occurred while the children were showering.

The defense presented one witness, Maria Garcia, the mother of Ms. Celis–Garcia and the grandmother of C.J. and K.J. Ms. Garcia testified that she never witnessed her daughter or the boyfriend inappropriately touching the children. She denied interrupting any abuse in the bathroom. She also testified that the children had a reputation for lying.

At the close of the evidence, the jury returned a verdict finding Ms. Celis–Garcia guilty on both counts of first-degree statutory sodomy. The trial court sentenced her to concurrent prison terms of 25 years on each count. Ms. Celis–Garcia appealed. After a decision by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

Jury Instructions Did Not Require Unanimous Jury Verdict

Ms. Celis–Garcia first claims the trial court erred by submitting verdict directors that did not identify the specific incident or incidents of hand-to-genital contact that the jury was required to agree she committed in finding her guilty of statutory sodomy, thereby violating her right to a unanimous jury verdict. Ms. Celis–Garcia concedes she failed to object to the verdict directors submitted to the jury and requests that the Court review her claim for plain error.³

An unpreserved claim of error can be reviewed only for plain error, which requires a finding of manifest injustice or a miscarriage of justice resulting from the trial court's error. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). For instructional error to constitute plain error, the defendant must demonstrate the trial court “ ‘so misdirected or failed to instruct the jury’ that the error affected the jury's verdict.” State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010) (quoting State v. Salter, 250 S.W.3d 705, 713 (Mo. banc 2008)).

In the present case, the trial court submitted Instruction No. 6, which instructed the jury on the first count of statutory sodomy committed against C.J. That verdict director read as follows:

As to Count 1 regarding the defendant Maura L. Celis–Garcia, if you find and believe from the evidence beyond a reasonable doubt:

First, that between the dates of January 01, 2005 and March 31, 2006 ⁴, in the County of Saline, State of Missouri, the defendant or [her boyfriend] placed her or his hand on [C.J.'s] genitals, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that at that time [C.J.] was less than twelve years old, then you are instructed that the offense of statutory sodomy in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Fourth, that with the purpose of promoting or furthering the commission of that statutory sodomy in the first degree, the defendant Maura L. Celis–Garcia acted together with or aided

[her

boyfriend] in committing that offense, then you will find the defendant Maura L. Celis–Garcia guilty under Count 1 of statutory 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 Maura L. Celis–Garcia not guilty of that offense.

(Emphasis added). The language in Instruction No. 7, which instructed the jury on the second count of statutory sodomy committed against K.J., was identical to Instruction No. 6, except that it substituted K.J.'s name.

Ms. Celis–Garcia argues these verdict directors failed to ensure the jury reached a unanimous verdict because the verdict directors required only a general finding of hand-to-genital contact between the specified dates and did not require agreement by the jury on a specific incident of hand-to-genital contact to find her guilty. Ms. Celis–Garcia argues the instruction is insufficient because the state presented evidence that she and her boyfriend placed their hands on the children's genitals on separate occasions and at different locations. Without some differentiation in the verdict directors, Ms. Celis–Garcia contends that it is impossible to know which act or acts of...