State v. Schneider

678 S.W.3d 493

STATE of Missouri, Respondent,

v.David F. SCHNEIDER, Appellant.

No. ED 110653

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: October 31, 2023

Appeal from the Circuit Court of Franklin County, Cause No. 18AB-CR00217-01, Honorable Craig E. Hellmann, Judge

FOR APPELLANTS: Daniel A. Juengel, Jennifer M. Kusmer, 7710 Carondelet Ave., Suite 350, Clayton, MO 63105.

FOR RESPONDENT: Andrew Bailey, Gregory L. Barnes, P.O. Box 899, Jefferson City, MO 65102.

Cristian M. Stevens, J.

Introduction

David F. Schneider ("Defendant") appeals from the judgment upon his conviction following a jury trial for four counts of child molestation in the first degree and one count of attempted child molestation in the first degree. On appeal, Defendant argues the trial court erred in not granting a mistrial and in denying his motion for new trial for juror misconduct. Defendant also challenges the trial court’s denial of his motion for judgment of acquittal on all counts. Defendant additionally argues the trial court erred in allowing the State to proceed on the Second Substitute Information, which denied Defendant the opportunity to adequately defend himself. Finally, Defendant argues the trial court erred in submitting jury instructions that fatally varied from the charging documents. We affirm the judgment of the trial court.

Factual and Procedural History

Facts

Viewed in the light most favorable to the verdict, see State v. Bracy, 670 S.W.3d 159, 166 (Mo. App. E.D. 2023), the evidence adduced at trial is as follows.

Victim 1¹

Victim 1 began gymnastics at Kids in Motion in 2009. Around 2011 to 2012, Victim 1 met Defendant, an assistant gymnastics coach, at Kids in Motion. As an assistant coach, Defendant helped Victim 1 stretch. Part of the stretching involved the oversplits stretch. The oversplits stretch required the gymnast to set her front foot up on a platform and then do the splits. Most coaches assisted with the oversplits stretch by straightening the gymnasts’ legs and pushing down on the gymnasts’ hips to create a deeper stretch.

When Defendant assisted Victim 1 with the oversplits stretch, however, Defendant grabbed underneath Victim 1, twisted her hips, and pushed her hips down. During this stretch, Defendant’s right hand grabbed underneath on the backside, and his middle finger slid into Victim 1’s shorts, underneath Victim 1’s leotard, and touched Victim 1’s genitals. Each time Defendant touched Victim 1’s vagina, Defendant said "Sorry, hun." No other coaches ever grabbed Victim 1 this way.

Victim 1 demonstrated to the jury on a doll how Defendant molested her. Victim 1 estimated Defendant inappropriately touched her more than ten times, and she was 100% sure he touched her vagina. No other coaches made Victim 1 feel uncomfortable while stretching or put their fingers or hands underneath Victim 1’s spandex shorts.

Victim 2

Around Summer 2014, Defendant coached Victim 2. When doing the oversplits stretch, Defendant "took his fingers down the top of [Victim 2’s] shorts and underneath [her] leotard and touched [her] vagina." Victim 2 demonstrated to the jury on a doll how Defendant molested her. Victim 2 indicated Defendant’s fingers were underneath her shorts and leotard. The touching involved skin-to-skin contact. Victim said this happened three, maybe four times. None of Victim 2’s other coaches ever put their fingers under her clothing.

Victim 2 disclosed each incident to her mother. Victim 2 stated she did not like when Defendant put her in the oversplits because Defendant touched her "down there in the privates." The week after the first incident, Victim 2 disclosed again that Defendant touched her "private parts" when doing the oversplits stretch. After a third incident, Victim 2 told her mother she did not want to do the oversplits with Defendant anymore because Defendant touched her on her vagina.

Victim 3

Around 2012, Defendant began coaching Victim 3. When Defendant assisted Victim 3 with the oversplits stretch, Defendant would "have his left hand on [her] lower back and … slide [his other hand] down [Victim 3’s] leg and go up … under the shorts, but over the leotard." Once Defendant had his hand under Victim 3’s shorts, he would "grab the area of [Victim 3’s] vagina" over the leotard. Victim 3 demonstrated on a doll for the jury. Victim 3 testified none of her other coaches ever made her feel uncomfortable or ever stuck their fingers underneath any of her clothing, either intentionally or accidentally.

Victim 3 initially disclosed the molestation to Victim 4. Then Victim 3 saw Defendant molest Victim 4 the same way. This occurred when Victim 4 was right next to Victim 3 while they were doing the oversplits stretch.

After her disclosure to Victim 4, Victim 3 disclosed the molestation to her parents. After seeing a news report about sexual harassment on television and hearing her mother talk about sexual harassment, Victim 3 told her parents "it was like when [Defendant] got fired for sticking his hands up our shorts doing the splits." Victim 3 told her mother that when she did the oversplits stretch, Defendant would "stick his hand up under [Victim 3’s] shorts and slip it down in between her legs," touching her crotch area. In January 2018, Victim 3 disclosed the molestation to her school counselor. The counselor hot-lined the allegation, and a criminal investigation began.

Victim 4

Around 2012 or 2013, Defendant began coaching Victim 4. Defendant would "push [her] down, he would take one of his hands … and go under with his hand from the bottom under [her] shorts and leotard." Once Defendant had his hand under her shorts and leotard, Defendant touched Victim 4’s genitals. Victim 4 demonstrated with a doll. Victim 4 stated this happened multiple times. Victim 4 also saw Defendant molesting Victim 3 when they were stretching. Victim 4 was molested first, then Victim 3 was molested right after her. No other coach made Victim 4 feel like Defendant made her feel, and no other coach had his hand or fingers under her shorts.

Victim 4 disclosed the molestation to her mother after her mother learned of the criminal investigation of Defendant. Victim 4’s mother asked Victim 4 if the allegations were true, and Victim 4 stated "yes" and became very upset. Victim 4 said she was inappropriately touched underneath her shorts more than once.

Victim 5

Shortly after January 2013, Defendant started coaching Victim 5. Defendant "would put his hands in [her] shorts whenever he was pushing [her] hips down or squaring them up to be in the right form." Defendant would put his hands into her shorts and his fingers would be "on, [the] V-line of [her] crotch area" roughly four inches from Victim 4’s vagina. Defendant’s fingers would stay under her shorts and apply pressure. Victim 5 demonstrated with a doll. Defendant put his fingers into her shorts multiple times. Defendant made no attempt to remove his fingers. This did not feel right to Victim 5 because none of the other coaches did that.

Defendant

On February 6, 2018, the investigating police detective interviewed Defendant. Defendant admitted he helped the victims with the oversplits, stretch. Defendant also admitted he would have his hands in the area of the victims’ vaginas while helping with the oversplits stretch. Defendant stated that if he was inappropriately touching the girls, he would have stopped. Defendant later admitted he touched the victims inappropriately and he was not going to hide it from law enforcement. Defendant admitted he knew the inappropriate touching happened more than once because he had become desensitized to inappropriately touching the victims. Finally, Defendant acknowledged that his fingers would slip inside the victims’ shorts. When asked if he changed how he stretched, the victims after his fingers slipped into their shorts, Defendant said he changed nothing and was not sure why. At trial, Defendant admitted he coached all five victims and assisted them with the oversplits stretch.

Procedural History

Charges

On February 25, 2020, the State filed a superseding indictment. Defendant moved to dismiss the superseding indictment on double jeopardy and jury unanimity grounds. In the alternative, Defendant moved for a bill of particulars. The trial court did not rule on this motion. On February 22, 2022, approximately five weeks before trial, the State filed a First Substitute Information in Lieu of Indictment changing the date ranges of the offenses. On March 16, 2022, the State filed a Second Substitute Information containing the same date ranges.

Motions for Judgment of Acquittal

Trial commenced on March 29, 2022. At the close of the State’s evidence and again at the close of all the evidence, Defendant moved for judgment of acquittal on all counts because the State failed to prove that Defendant acted for the purpose of arousing or gratifying his sexual desire. Defendant also argued that insufficient evidence supported the attempted child molestation count. The trial court denied the motions.

Juror Five

At the start of the last day of trial, the State informed the trial court of potential juror misconduct. Outside the presence of the jury, the trial court took sworn testimony from the State’s victim advocate, Juror 5, and the remaining jurors, including the alternate juror, regarding the alleged juror misconduct.

The State’s victim advocate testified that, at the conclusion of Defendant’s direct examination the day before, the State’s victim advocate went to the courtroom lobby. The victim advocate heard Juror 5 state, "They had been there for over a year and never said anything." The victim advocate did not see to whom Juror 5 was speaking. The victim advocate was not sure if there was a response because she was paying attention to only Juror 5. The victim advocate recalled seeing two jurors, including Juror 5, who appeared to be having a conversation. On re-direct examination, the victim advocate confirmed she did not...