State v. Vitale

688 S.W.3d 740

STATE of Missouri, Respondent,

v.John R. VITALE, Appellant.

No. ED 110837

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: March 12, 2024

Application for Transfer to Supreme Court Denied April 16, 2024

Appeal from the Circuit Court of Jefferson County, Cause No. 19JE-CR03309-01, Honorable Victor J. Melenbrink, Judge

FOR APPELLANT: Joseph F. Yekel, 8909 Ladue Road, St. Louis, MO 63124.

FOR RESPONDENT: Andrew Bailey, Garrick F D Aplin, P.O. Box 899, Jefferson City, MO 65102.

Cristian M. Stevens, J.

Introduction

John Vitale ("Defendant") appeals from the judgment upon his conviction following a jury trial for three counts of statutory rape in the first degree and three counts of statutory sodomy in the first degree. On appeal, Defendant argues the trial court erred in responding to a note the jury sent during its deliberations requesting Defendant’s prior convictions. Defendant further argues the trial court committed plain error in failing to ensure that the jury instructions required a unanimous verdict on each count of conviction. We affirm the judgment of the trial court.

Factual and Procedural History

Facts

Defendant and Victim were next-door neighbors.¹ One day during summer break, when Victim was around eight years old, Victim went outside to play. While Victim was outside, Defendant offered her a popsicle if she came inside Defendant’s house. Once inside, Defendant took Victim to his basement, where he took off Victim’s clothes and raped her on a leather couch by inserting his penis into her vagina. Defendant warned Victim not to tell anyone or he would rape her twin sister. As Defendant led Victim out of the basement, Defendant told Victim he "couldn’t wait to do it again."

Defendant engaged in sex acts with Victim multiple times during the summer months over several years. Victim could not remember the dates of every time this sort of thing happened.

Defendant sodomized Victim several times by putting his penis in her mouth and his fingers inside her vagina. The incidents of sodomy sometimes occurred in the living room of Defendant’s house. The sexual abuse stopped only after Defendant was taken away from his house in an ambulance due to a medical emergency in approximately 2013.

Victim did not disclose the sexual abuse because of Defendant’s threat to rape Victim’s sister. Ultimately, in August 2019, Victim disclosed the abuse to a school counselor.

Procedural History

The State charged Defendant by amended information with three counts of statutory rape in the first degree and three counts of statutory sodomy in the first degree. The case proceeded to trial.

Pre-Trial

In November 2020, approximately 18 months before trial, the State gave notice to Defendant that it intended to offer evidence of Defendant’s two prior convictions for sexual abuse in the second degree and statutory sodomy in the first degree. The Defendant filed a motion in limine to exclude this evidence. The trial court held a hearing and denied Defendant’s motion. The trial court reasoned that both convictions were legally relevant to the pending charges, but limited how the State could present evidence regarding the earlier conviction for sexual abuse in the second degree. The trial court stated the parties could generate a mutually agreeable stipulation or provide proposals to the trial court.

Before the jury was seated, the State informed the trial court it would introduce the prior convictions by a written submission already provided to the court. The State would also present the live testimony of the victim of the statutory sodomy conviction. Defendant objected that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The trial court overruled the objection, consistent with its previous denial of Defendant’s motion in limine.

Trial

The State raised Defendant’s prior convictions in its opening statement, without objection from Defendant. The State first mentioned Defendant’s prior conviction for sexual abuse and informed the jury it would "actually be able to read the specifics around that conviction." The State then mentioned Defendant’s prior conviction for statutory sodomy and that the jury would hear about that conviction through the live testimony of the victim of that crime.

During its case-in-chief, the State read into evidence State’s Exhibit 1, a brief summary of Defendant’s prior conviction for sexual abuse in the second degree, in which Defendant touched the breasts of his step-daughter, A.S., and thrust his pelvis into her from behind to demonstrate anal sex while they were clothed. Defense counsel objected to the admission of the summary. The trial court overruled the objection and granted defense counsel a continuing objection.

Defendant’s daughter, A.T., then testified that Defendant sodomized her when she was a child. At the conclusion of her testimony, the State read into evidence State’s Exhibit 2, a brief summary of Defendant’s prior conviction for statutory sodomy in the first degree of A.T. Defense counsel objected to the admission of the summary, and the trial court overruled the objection.

At the instruction conference, defense counsel objected to all six verdict directors, instructions 6 through 11, on the basis that the State failed to meet its evidentiary burden to submit the case to the jury. The trial court overruled the objections. The trial court then specifically inquired of defense counsel, "[A]re there any objections as to form?" Regarding the verdict directors, the trial court made clear, "When we’re going through them, if you have any specific objections as to form, you can raise those one by one." The trial court reviewed all six verdict directors with the State and defense counsel. With each verdict director, the trial court asked defense counsel if he had any objection to the form of the instruction. Regarding each of the six verdict directors, defense counsel responded, "No, Your Honor."

In closing argument, the State reminded the jury it had heard about Defendant’s two prior convictions during the trial. The State informed the jury that, during its deliberations, the jury could ask to see Exhibits 1 and 2, the summaries of the convictions, and could read them again. There was no objection to the State’s argument.

For his part, defense counsel also reminded the jury of the defense exhibits and that the jury could look at them for itself. Defense counsel also argued: "There is no evidence at all. Was there even six – six incidents talked about in this case? No, there was not. There wasn’t really even one incident talked about in this case." Defense counsel continued:

The defendant is on trial only for … the offenses charged, the six counts in this case. And the prosecution has not presented you with evidence that proves – you don’t even know when any of those six counts would have allegedly have [sic] occurred other than what it says in the verdict director you’re going to get. You couldn’t tell that from [Victim’s] testimony. I beg you to pinpoint the time that she was talking about …. And you’re not going to see that on any of the verdict director forms, Instructions [6] through 11.

In its rebuttal argument, the State again invited the jury, without objection, to read the State’s trial exhibits.

The Jury’s Request and the Trial Court’s Response

Approximately twenty minutes after the jury began deliberating, the jury sent a court form entitled "Jury’s Question or Request" to the trial court. On the form, the jury requested, "We would like to see the 2 prior charges." One minute later, on the "Court’s Response" portion of the same form, the court responded, "Attached," suggesting it sent Exhibits 1 and 2 to the jury. The transcript does not reveal any proceedings on the record regarding the jury’s request or the court’s response. The docket sheet for May 4, 2022, the last day of trial, displays entries for the filing of State’s Exhibits 1 and 2 and the "Jury’s Question or Request" form containing the jury’s request and the court’s response, filed as "Questions to Judge from Jury."

Verdict

The jury found Defendant guilty as charged on all counts. Defense counsel filed a motion for new trial 23 days later, on May 27, 2022.

Discussion

Defendant raises four points on appeal. In his first point, he argues the trial court erred in responding to the jury’s request during deliberations because the communication occurred outside the presence, and without the input, of Defendant and defense counsel, and Defendant was thereby denied an opportunity to object to the trial court’s response. In his second, third, and fourth points, Defendant argues the trial court committed plain error in failing to ensure that the verdict directors required the jury to return a unanimous verdict on each count of conviction.

Point I: The Jury Request and the Trial Court’s Response

[1–4] In his first point, Defendant argues the trial court erred in responding to the jury’s request because the communication occurred outside the presence, and without the input, of Defendant and defense counsel, denying Defendant an opportunity to object to the Court’s re- sponse.²

Preservation and Standard of Review

The State contends, and Defendant concedes, that no claim of error regarding the trial court’s communication with the jury was asserted before the trial court. Defendant nevertheless argues the alleged error should be treated as preserved because he and defense counsel were unaware of the conduct giving rise to the alleged error. The State responds that Defendant has not made any affirmative showing that he and defense counsel were unaware of the trial court’s response to the jury before this appeal, or that he could not reasonably have discovered it by due diligence.

We have good reason to conclude that Defendant failed to make an affirmative showing that he and his counsel were unaware of the trial court’s response before the appeal, and thus Defendant’s...