State v. Weyant

598 S.W.3d 675

STATE of Missouri, Respondent,

v.Scott Evan WEYANT, Appellant.

WD 82502

Missouri Court of Appeals, Western District.

OPINION FILED: March 31, 2020

Eric S. Schmitt, Attorney General, and Julia E. Rives, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Christian E. Lehmberg, Assistant State Public Defender, Columbia, MO, Attorney for Appellant.

Before Division One: Thomas N. Chapman, Presiding Judge, and Mark D. Pfeiffer and Anthony Rex Gabbert, Judges

Mark D. Pfeiffer, Judge

Mr. Scott E. Weyant ("Weyant") appeals from the judgment of the Circuit Court of Adair County, Missouri ("trial court"), finding him guilty, following a jury trial, of sodomy in the first degree. On appeal, Weyant argues that the trial court plainly erred in submitting the instruction defining "deviate sexual intercourse" because he claims it impermissibly submitted a disjunctive phrase in violation of MAI-CR 420.12. Because this is a "single act" case, Weyant’s reliance upon State v. Celis-Garcia , 344 S.W.3d 150 (Mo. banc 2011), is misplaced and, in light of the fact that substantial evidence in the case supported the disjunctive submission of alternative purposes for the crime, the trial court did not err, plainly or otherwise, in instructing the jury as to the definition of "deviate sexual intercourse." We affirm.

Facts and Procedural History¹

Although C.W.² was divorced from Weyant, they shared an apartment, with C.W. sleeping in the bedroom and Weyant sleeping on the couch. On April 6, 2017, C.W. was moving her possessions to a new apartment. That evening, when she returned to the apartment to retrieve more of her possessions, she found an intoxicated Weyant lying on her bed, and he became angry when C.W. refused his sexual entreaties. When C.W. asked Weyant to get out of her bedroom, he threw beers at her; then, he grabbed her by the neck, threw her on the bed, and got on top of her. C.W. thought Weyant was going to choke her. Instead, he held her down and dumped beer on her face. As C.W. was crawling away from Weyant, he pushed her on the floor.

When C.W. was crawling to the other side of the room, Weyant grabbed her from behind and stuck his hand down her pants, pushing his middle and pointer fingers in and out of her vagina very aggressively. C.W. pleaded with Weyant to stop, but Weyant ignored her. When C.W. was able to roll over onto her back, she succeeded in physically defending herself, and Weyant pulled his hands out of her pants.

C.W. ran into the living room to get her purse and leave, but Weyant grabbed her purse and ran back into her bedroom. He held the purse above her head and said, "Don't leave. Don't leave." When C.W. convinced Weyant to give her purse to her, she ran outside to her vehicle but could not find her keys. She went back to the apartment, and Weyant opened the door but he would not initially let her have her keys. Eventually, C.W. retrieved her keys, ran outside, and drove straight to the Kirksville police station.

At the police station, Officer Nicholas Panos interviewed C.W., and observed that she was upset, she had been crying, her face was red, and her shirt was wet and had the odor of intoxicants on it.

While Officer Panos was interviewing C.W., Officer Jake Roberts went to the apartment to speak to Weyant. When Officer Roberts made contact with Weyant, he observed that Weyant was visibly intoxicated. Weyant’s speech was slurred, and the officer could detect intoxicants on his breath. Weyant admitted to having a verbal altercation with C.W. Officer Roberts took Weyant into custody.

The State charged Weyant as a prior offender with one count of sodomy in the first degree for knowingly having deviate sexual intercourse with C.W. by the use of forcible compulsion on April 6, 2017. A jury trial was conducted on November 28-29, 2018. At the instruction conference, defense counsel affirmatively stated that the defendant had no objections to the instructions tendered by the State.³ The jury found Weyant guilty of sodomy in the first degree, as submitted in Instruction No. 5. The jury was polled, and the trial court found that the verdict returned was the unanimous verdict of the jury.

In Weyant’s motion for new trial, he asserted for the first time that the trial court erred in submitting a disjunctive definitional instruction and that it was thus impossible to determine if the jury reached a unanimous verdict, citing to State v. Celis-Garcia . The trial court overruled the motion and sentenced Weyant to the Department of Corrections for a term of twelve years.

Weyant timely appealed.

Standard of Review

At the instruction conference, the State proffered a verdict-directing instruction for sodomy in the first degree and an instruction defining "deviate sexual intercourse." Weyant’s trial counsel affirmatively stated that the defendant had no objection to the instructions. Weyant thus concedes that his allegation of error is not preserved for appellate review. See Rule 29.03 ("Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.").

Nevertheless, Weyant requests that we review his claim of instructional error for plain error. "Although [Weyant] waived appellate review when his trial counsel affirmatively stated that he had no objection to [the State’s instructions], unpreserved claims of plain error relating to jury instructions may still be reviewed under Rule 30.20 if manifest injustice would otherwise occur." State v. Berry , 506 S.W.3d 357, 361-62 (Mo. App. W.D. 2016) (footnote omitted) (citing State v. Wurtzberger , 40 S.W.3d 893, 898 (Mo. banc 2001) ). See also State v. Manuel , 443 S.W.3d 669, 672 (Mo. App. W.D. 2014) (citing Wurtzberger and holding that neither a failure to object to an instruction, nor an express statement of "no objection" to an instruction, waive plain error review).

Rule 30.20⁴ provides that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "Plain error review is discretionary and involves two steps: first, we must determine whether the trial court committed evident, obvious, and clear error affecting the defendant’s substantial rights; second, if plain error is found, we then consider whether the error actually resulted in manifest injustice or a miscarriage of justice." Berry , 506 S.W.3d at 362 (internal quotation marks omitted). " ‘When the unpreserved allegation concerns instructional error, plain error exists when it is clear that the circuit court has so misdirected or failed to instruct the jury that manifest injustice or miscarriage of justice has resulted.’ " Id. (quoting State v. Zetina-Torres , 482 S.W.3d 801, 810 (Mo. banc 2016) ). "The defendant bears the burden of showing that an alleged error has produced such a manifest injustice." Id. (internal quotation marks omitted). "Instructional error seldom rises to the level of plain error." Id. ( internal quotation marks omitted).

Analysis

In Weyant’s sole point on appeal, he asserts that the trial court plainly erred in submitting Instruction 7, the definition for deviate sexual intercourse, because it instructed the jury that they could find the act was done for the purpose of either arousing or gratifying the sexual desire of any person or terrorizing another. However, Weyant does not contest on appeal that there was substantial evidence at trial of both "purposes" for the single act of unlawful digital penetration he was charged and convicted of. Hence, because the jurors at Weyant’s trial necessarily reached a unanimous decision on guilt or innocence, namely, that Weyant "knowingly" had "deviate sexual intercourse" with C.W. on April 6, 2017, by the use of "forcible compulsion," it did not impact jury unanimity to provide the jury an instruction in the disjunctive as to the purpose for his crime.

"A person commits the offense of sodomy in the first degree if he or she has deviate sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion." § 566.060.1.⁵ By amended felony information, the State charged Weyant as a prior offender with committing the felony of sodomy in the first degree in violation of section 566.060 in that on April 6, 2017, he "knowingly had deviate sexual intercourse with [C.W.] by the use of forcible compulsion."

The approved instruction for sodomy in the first degree is MAI-CR 4th 420.12 (7-1-17).⁶ Instruction No. 5 was the verdict director for sodomy in the first degree that was tendered by the State, submitted to the jury at Weyant’s trial, and of which Weyant does not complain of on appeal :

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about April 6, 2017, in the State of Missouri, the defendant knowingly had deviate sexual intercourse with [C.W.] by forcing his finger into [C.W.’s] vagina, and

Second, that defendant did so by the use of forcible compulsion, then you will find the defendant guilty of 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 not guilty of that offense.

As used in this instruction, "forcible compulsion" means physical force that overcomes reasonable resistance or a threat, express or implied, that places a person in reasonable fear of death or serious physical injury or kidnapping of herself or another person.

At the time Weyant committed the alleged offense, "deviate sexual intercourse" was statutorily defined as:

[A]ny act involving the genitals of one person and the hand,

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