State v. Henry

• Decision Date: 29 January 2019
• Docket Number: No. ED 105699,ED 105699
• Citation: 568 S.W.3d 464
• Parties: STATE of Missouri, Respondent, v. Robert L. HENRY, Appellant.
• Court: Missouri Court of Appeals

568 S.W.3d 464

STATE of Missouri, Respondent,

v.Robert L. HENRY, Appellant.

No. ED 105699

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: January 29, 2019

FOR APPELLANT: Gwenda R. Robinson, Missouri Public Defender Office, 1010 Market Street, Suite 1100, St. Louis Missouri 63101.

FOR RESPONDENT: Richard A. Starnes, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Presiding Judge

Introduction

Robert L. Henry was charged with one count of first-degree statutory rape and three counts of first-degree statutory sodomy to S.B., born in 2002, and three counts of first-degree statutory sodomy to T.B., born in 2006. S.B., T.B. (collectively "Victims"), and Victims' mother ("Mother") periodically lived with Henry and Henry and Mother’s sons at different locations in 2012 and 2013. Henry was tried on the charges in May 2017. The jury convicted Henry of one count of first-degree statutory rape (count I) and three counts of first-degree statutory sodomy (counts II through IV) arising out of charges of first-degree statutory rape and sodomy to S.B. from March 1, 2012, to February 3, 2013, in the City of St. Louis. The jury could not reach a unanimous verdict on the three counts of first-degree statutory sodomy to T.B. resulting in a mistrial on counts V through VII. Henry was sentenced to concurrent terms of twenty years of imprisonment on counts I through IV.

On appeal, Henry raises four points: (1) the trial court plainly erred in submitting the verdict directors for counts I through IV because they failed to ensure the jury reached a unanimous verdict; (2) the trial court abused its discretion in denying his motion for a new trial because the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose evidence indicating that S.B. was pregnant when the case was tried; (3) the trial court clearly erred in denying his motion to dismiss the charges based on the State’s failure to bring him to trial within 180 days of its receipt of his request for a speedy trial under the Uniform Mandatory Disposition of Detainers Law (UMDDL), § 217.450 et seq.¹ ; and (4) the trial court clearly erred in denying his motion to dismiss the State’s charges against him because § 56.087 is unconstitutional. The State concedes error for part of Point I, instructional error regarding Counts III and IV. We find the instructional error in point I constitutes plain error with regard to count IV. The judgment and sentence of conviction on Count IV is reversed and remanded for new trial. The sentence and judgment as to all other counts is affirmed.

Factual and Procedural Background

We review 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). Additional facts will be provided to the address the specific points when necessary.

Henry was charged with seven counts: 1) first-degree statutory rape against S.B. from March 1, 2012, to June 1, 2012; 2) first-degree statutory sodomy against S.B. from March 1, 2012, to June 1, 2012; 3) first-degree statutory sodomy against S.B. from June 1, 2012, to February 3, 2013; 4) first-degree statutory sodomy against S.B. from July 1, 2012, to February 3, 2013; 5) first-degree statutory sodomy against T.B. from March 1, 2012, to June 30, 2012; 6) first-degree statutory sodomy against T.B. from June 1, 2012, to February 3, 2013; and 7) first-degree statutory sodomy against T.B. from February 1, 2013, to February 3, 2013. Trial began May 22, 2017.

At trial, the State presented evidence establishing that Mother reported the crimes alleged against Henry on February 3, 2013. A detective for the St. Louis police department testified he investigated the crimes alleged against Henry and arranged for a forensic interview of Victims but only S.B. was interviewed because T.B. was taken by her father.

The State presented evidence from Mother establishing where Mother and Victims lived during the relevant time periods. The evidence established that Henry, Mother, and the children lived on Cook St. in a one-bedroom apartment in the City of St. Louis from March 1, 2012, to June 1, 2012, and at various other locations in the City of St. Louis thereafter, including Mother’s sister’s on Carr St. in the City of St. Louis from July 2012 until December 2012 before moving into a shelter.

T.B. was eleven years old at the time of trial. T.B. testified that Henry made her suck his "thing" at their apartment, at Mother’s sister’s house, and in a porta potty.

S.B. was fifteen years old at the time of trial. S.B. testified that while they were living on Cook St. Henry stuck his penis inside of her and made her suck his penis. S.B. testified that Henry made her suck his penis numerous times in the laundry room at Mother’s sister’s house. S.B. testified Henry made her suck his penis in a porta potty while she living with Mother’s sister.

S.B.’s interview of February 7, 2013, was played for the jury. In that interview, she testified that Henry put his private part in her and made her suck his private part while they were living on Cook St. She testified that Henry made her suck his private part while sitting on the toilet seat in the bathroom at Carr St.

The jury found Henry guilty on the four counts related to S.B. but could not reach a unanimous verdict on the three counts related to T.B. and a mistrial was declared on those counts. This appeal follows.

Discussion

I. Plain Error Review of Henry’s Right to Unanimous Jury Verdict

In point I, Henry concedes he did not preserve this claim but contends the trial court plainly erred in submitting the verdict directors for counts I through IV because they failed to ensure the jury reached a unanimous verdict. Specifically, Henry argues the verdict directors failed to sufficiently differentiate between the multiple sex acts underlying each count. The State concedes the trial court erred in submitting the verdict directors for counts III and IV but argues the court only committed plain error regarding count IV because the State contends the verdict director for count III resulted in no manifest injustice due to the State differentiating the acts for counts III in closing argument. The State argues the trial court did not commit plain error in submitting the verdict directors for counts I and II because jury unanimity on one specific event was not required for these offenses given the nature of Henry’s repeated, identical assaults of S.B., which provided no evidentiary basis for the jurors to distinguish between those acts. We reverse and remand Henry’s conviction on count IV for a new trial but affirm his convictions on counts I, II, and III.

An unpreserved claim of error can be reviewed only for plain error. State v. Celis-Garcia , 344 S.W.3d 150, 154 (Mo. banc 2011). Plain error requires a finding of manifest injustice or miscarriage of justice resulting from the trial court’s error. Id. "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." Id. (internal quotations omitted).

The Missouri Constitution protects the right to a unanimous jury verdict. MO. CONST. art. I, § 22(a) ; Celis-Garcia , 344 S.W.3d at 155. For a jury verdict to be unanimous, the jurors must be in substantial agreement on the defendant’s acts. Celis-Garcia , 344 S.W.3d at 155.

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. Id. at 155-56. In multiple acts cases, the possibility exists that jurors follow the trial court’s instructions, yet individually choose differing instances of the crime on which they base the conviction, violating the defendant’s right to a unanimous jury verdict. State v. Watson , 407 S.W.3d 180, 184 (Mo. App. E.D. 2013).

In Celis-Garcia , the Missouri Supreme Court considered a multiple acts case involving at least seven separate acts of statutory sodomy with two victims at different times and in four possible locations. The verdict directors failed to differentiate between the acts and allowed the jury to find the defendant guilty if she "engaged or assisted in hand-to-genital contact with the children during an incident in her bedroom, or on the enclosed porch, or in the shed, or in the bathroom." Celis-Garcia , 344 S.W.3d at 156.

On appeal, the defendant conceded she failed to object to the verdict directors and requested the Court review her claim that her right to a unanimous jury verdict was violated for plain error. Id. at 154. The Court found the verdict directors were erroneous because they permitted the jury to convict the defendant of two counts of sodomy without identifying the facts the jurors were to agree she committed. Id. at 158.

The Court held that "a defendant’s right to a unanimous verdict would be protected in a multiple acts case by either the state (1) electing the particular criminal act on which it will rely to support the charge or (2) the verdict director specifically describing the separate criminal acts presented to the jury and the jury being instructed that it must agree unanimously that at least one of those acts occurred." Id. at 157. The Court declined to address the State’s argument it would be "impossible to prosecute sexual abuse cases involving repeated, identical sexual acts committed at the same location and during a short time span because the victim would be unable to distinguish sufficiently among the acts" because it was not the case presented to the Court since both victims "provided details of multiple sexual acts that were committed at different times and in different locations." Id. at 157 n.8.

Having determined the trial court erred, the Court considered whether the error resulted in manifest injustice or a...