State v. Gilbert

• Citation: 628 S.W.3d 702
• Decision Date: 25 May 2021
• Docket Number: WD 83558
• Court: Court of Appeal of Missouri (US)
• Parties: STATE of Missouri, Respondent, v. Abraham J. GILBERT, Appellant.

628 S.W.3d 702

STATE of Missouri, Respondent,

v.Abraham J. GILBERT, Appellant.

WD 83558

Missouri Court of Appeals, Western District.

Opinion filed: May 25, 2021

Application for Transfer Denied October 5, 2021

Daniel N. McPherson, Jefferson City, for Respondent.

Kathryn M. Merwald, for Appellant.

Division Three: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

Abraham Gilbert appeals from the judgment of the Circuit Court of Jackson County convicting him of two counts of statutory sodomy in the first degree and five counts of child molestation in the first degree. In his six points on appeal, Gilbert claims that the trial court erred in (1) overruling his Batson challenge; (2) denying his motion for new trial based on juror misconduct; and (3) overruling his motions for judgment of acquittal. We affirm.

Factual and Procedural History

Abraham Gilbert ("Gilbert"), A.G. (the "Victim"), and A.G.’s biological brother were each adopted as children from an orphanage in Mexico by the same adoptive parents ("Parents"). Victim's date of birth is February 11, 1991. Gilbert's date of birth is August 11, 1985, making Gilbert approximately five and a half years older than Victim.

Gilbert began abusing Victim when she was in the fifth grade by rubbing his hand on her vagina over her clothing. Over time, the abuse increased to where Gilbert inserted his fingers in Victim's vagina, put his mouth on her vagina, and touched Victim's breasts underneath her clothing with his hand and mouth.

In the summer of 2002, between Victim's fifth and sixth grade year, she and Gilbert began mowing neighbors’ lawns to make money. Later that year while Victim was resisting Gilbert's sexual assault, Gilbert asked Victim, "[w]hat do you want?" In response, Victim told Gilbert she wanted $50, believing that he would not have the money, "so then he wouldn't be able to do it because ... it was during the winter and we weren't mowing lawns anymore and so I [didn't] know how else he was going to get money." To Victim's surprise, Gilbert had the money and paid her that same night. Gilbert's abuse of Victim became both more frequent and intense following Victim's mistaken belief that a demand of money would cease Gilbert's misdeeds. Gilbert made Victim rub his penis with her hand and put his penis in her mouth. Gilbert also put his mouth on Victim's breasts and vagina underneath her clothing and inserted his fingers in her vagina. Gilbert's abuse of Victim continued for the next "couple of years." During the final act of abuse, Gilbert penetrated Victim's vagina with the tip of his penis and Victim was able to resist his further efforts. The abuse ceased around the time Gilbert found a girlfriend at school that was his own age.

Victim did not disclose the abuse until, as an adult, she told her parents that something had happened between her and Gilbert when she was younger, but did not provide any detail. It was Parents’ understanding that "[Gilbert] had done something of a sexual nature to her." When the parents approached Gilbert about what Victim had told them, Gilbert "confirmed that he had done something to [Victim][.]" Eventually Victim felt her parents were not supporting her and she reported Gilbert's actions to the police. At some point thereafter, Gilbert wrote Victim a letter. In it, Gilbert apologized to Victim "from the bottom of [his] heart for everything that [he] put [Victim] through as a sibling," and stated further that Victim "should never have been subjected to the worst sides of [Gilbert's] childhood and adolescence." Gilbert's letter to Victim was admitted into evidence at trial.

A jury trial began on November 18, 2018. During voir dire , the State exercised a peremptory strike to remove Venireperson 45, an African-American female, from the jury. In response, Gilbert's counsel raised a Batson challenge. The State explained that it struck Venireperson 45 because she was nodding in agreement throughout defense counsel's questioning.

Following arguments from the parties, the trial court overruled Gilbert's Batson challenge and Venireperson 45 was struck.

Gilbert neither testified nor presented any evidence at trial. The jury found Gilbert guilty of two counts of statutory sodomy in the first degree and five counts of child molestation in the first degree.¹ The court sentenced Gilbert in accordance with the jury's recommendation to fifteen years on each count of child molestation in the first degree, and 17 and 34 years respectively on the two counts of statutory sodomy in the first degree. The court ordered the sentences on the two counts of statutory sodomy be served consecutively to each other and concurrently to the child molestation counts, which were ordered to be served concurrently to each other, for a total sentence of 51 years imprisonment.

Gilbert appeals. Further factual details will be provided as relevant in the analysis below.

Point I

In his first point on appeal, Gilbert contends that the trial court clearly erred in overruling his Batson challenge to the State's peremptory strike of an African-American venireperson. Gilbert specifically argues that following the State striking Venireperson 45 from Gilbert's jury, the State's proffered explanation that it struck Venireperson 45 because she nodded throughout defense counsel's voir dire was pretextual under the totality of the circumstances.

Standard of Review

"When reviewing a ruling on a Batson challenge, we accord ‘great deference’ to the circuit court ‘because its findings of fact largely depend on its evaluation of credibility and demeanor.’ " State v. Evans , 490 S.W.3d 377, 384 (Mo. App. W.D. 2016) (quoting State v. Bateman , 318 S.W.3d 681, 687 (Mo. banc 2010) ). Therefore, we will reverse the circuit court's decision only if we find it was clearly erroneous. State v. Jackson , 385 S.W.3d 437, 439 (Mo. App. W.D. 2012). To find it was clearly erroneous, we must have a "definite and firm conviction that a mistake has been made." State v. Bateman , 318 S.W.3d at 687 (quoting State v. McFadden , 216 S.W.3d 673, 675 (Mo. banc 2007) ).

Analysis

"The Equal Protection Clause in the United States Constitution prohibits parties from using a peremptory challenge to strike a potential juror on the basis of race."² State v. Boyd , 597 S.W.3d 263, 269 (Mo. App. W.D. 2019) (quoting State v. Meeks , 495 S.W.3d 168, 172 (Mo. banc 2016) ). "In Batson , the Supreme Court described a three-step, burden-shifting process for challenging a peremptory strike on this basis." State v. Meeks , 495 S.W.3d at 172 (citing Batson v. Kentucky , 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ). "The Supreme Court, however, ‘decline[d] ... to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Id. (quoting Batson v. Kentucky , 476 U.S. at 99, 106 S.Ct. 1712 ).

To fill that void, the Missouri Supreme Court articulated a three-step procedure for trial courts to use in evaluating a Batson challenge:

First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the [S]tate and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the [S]tate to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the [S]tate's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.

State v. Meeks , 495 S.W.3d at 173 (quoting State v. Parker , 836 S.W.2d 930, 939 (Mo. banc 1992) ).

"If the proponent of the strike articulates an acceptable non-discriminatory reason for the strike, then, at the conclusion of the third step, the circuit court must decide whether the party challenging the strike ‘has proved purposeful racial discrimination.’ " State v. Jackson , 385 S.W.3d 437, 440 (Mo. App. W.D. 2012) (quoting Purkett v. Elem , 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) ). "To prove purposeful racial discrimination, the party challenging the strike must demonstrate that the proffered reason for the strike was merely pretextual and that the strike was, in fact, motivated by race." Id. (citing State v. Bateman , 318 S.W.3d 681, 689 (Mo. banc 2010) ). "To meet this standard, the party challenging the strike ‘must present evidence or specific analysis’ showing that the proffered reason was pretextual." Id. (quoting State v. Johnson , 930 S.W.2d 456, 460 (Mo. App. W.D. 1996) ).

This Court considers a non-exclusive list of factors in determining whether pretext exists, including: "the explanation in light of the circumstances; similarly situated jurors not struck; the relevance between the explanation and the case; the demeanor of the state and excluded venire members; the court's prior experiences with the prosecutor's office; and objective measures relating to motive." State v. McFadden , 369 S.W.3d 727, 739 (Mo. banc 2012) (quoting State v. Johnson , 284 S.W.3d 561, 571 (Mo. banc 2009) ).

Here, at the close of voir dire , the State exercised a peremptory strike to remove Venireperson 45, who identified herself as African-American, to which defense counsel raised a Batson challenge. In response to defense counsel's Batson challenge, the prosecutor explained that:

[T]he reason ... is that during [defense counsel's] questioning, [Venireperson 45] was nodding along to just about every single question that [defense counsel] asked, and that's the reason that I want to strike her off count. [Venireperson 45] sat and nodded in agreement with everything that defense counsel said.

The trial court then questioned the State as to whether there were any similarly-situated venire members that were also nodding in agreement with defense counsel. The prosecutor responded that "[t]here was a...