STATE OF MISSOURI, )

 )

Respondent, )

 )

vs. ) No. SD35350

 )

WADE A. STUCKLEY, ) FILED: May 13, 2019

 )

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Thomas E. Mountjoy, Judge

AFFIRMED

Wade Stuckley was convicted of sodomizing and molesting his girlfriend’s 

(now wife’s) four-year-old child (“Victim”). Each of his three points on appeal 

seeks plain-error review, two raising Celis-Garcia complaints1 and one charging 

double jeopardy.

A plain-error claim “places a much greater burden on a defendant than an 

assertion of prejudicial error.” State v. Ralston, 400 S.W.3d 511, 520 (Mo.App. 

2013). A defendant must show not only that the trial court committed evident, 

obvious, and clear error, but also the existence of manifest injustice or a 

miscarriage of justice. State v. Mueller, 568 S.W.3d 62, 75 (Mo.App. 2019). To 

prove plain instructional error, the defendant “must demonstrate the trial court so 

misdirected or failed to instruct the jury that the error affected the jury’s verdict.” 

 1 State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), discussed infra.
2

Celis-Garcia, 344 S.W.3d at 154 (citations and internal quotation marks 

omitted). Even clear and obvious instructional error rarely works a manifest 

injustice or miscarriage of justice demanding plain-error reversal. State v. 

Parsons, 339 S.W.3d 543, 549 (Mo.App. 2011). The outcome of plain-error 

review depends heavily on the facts and circumstances of each case. Ralston, 400 

S.W.3d at 520. 

Given the facts and circumstances of this case, and particularly how it was

tried, Stuckley fails to convince us that anyone committed evident, obvious, and 

clear error, or that modified instructions would have changed the verdicts. We 

affirm the convictions.

Background

After several police interviews, the state charged and later tried Stuckley on 

three counts alleged to have happened at home between May 28 and June 13, 2014:

1. A bath incident where Stuckley admitted to police that he had 

inserted his pinky into Victim’s vagina. This was charged, presented at 

trial, and instructed upon as Count I.

2. A bedroom tickling incident where Stuckley admitted to police that

he probably had inserted his thumb into Victim’s vagina, Victim said

“Don’t touch me down there,” and Stuckley immediately apologized. This 

was charged, presented at trial, and instructed upon as Count II.

3. Other tickling incidents in Victim’s bedroom where Stuckley’s hand 

touched Victim’s vagina without penetration. This was charged, presented 

at trial, and instructed upon as Count III.

This matchup of acts with charges continued through trial, beginning with 

the prosecutor’s opening-statement reference to what was charged as Count I and 

would be the subject of Instruction 5 (our emphasis):

You’re going to hear from the defendant how he describes 

one particular instance that stands out in his mind. He 

remembers carrying four-year-old [Victim] out of the bathtub 

after she was getting a bath. He’ll describe to you that he 

remembered she was wet and slippery and his hands were wet 

and slippery from helping her wash her hair.

He’ll talk about remembering his right hand on her upper 

back and his left hand underneath the buttocks. He remembers 

the thumb of his left hand brushing up against the lips of her 

vagina. He’ll talk about her slipping and his pinky finger 
3

inserting into her vagina about one inch or up to his first 

knuckle. He’ll tell police officers that once that happened, he 

yanked it out real quick.

The prosecutor then moved to what was charged as Count II and would be 

the subject of Instruction 6 (our emphasis):

The defendant remembered another particular 

circumstance in which his fingers had been inserted inside 

[Victim’s] vagina in that two-week period. You’ll hear him 

describe to police officers that when he would put [Victim] to 

bed at night, he would often tickle her. On this particular

incident, he remembered her wearing a dress nightgown, with 

panties.

He talked about tickling her on her upper leg, inner thigh, 

and back of leg area. On this particular night, his left hand 

again, the thumb this time, slipped inside the elastic band of the 

leg part of her underwear and into her vagina, again about one 

inch or up to the first knuckle.

That particular incident stood out to the defendant because 

he remembers four-year-old [Victim] saying, “No, don’t touch 

me there.” And he said to her, “I’m sorry. I was just tickling. It 

was an accident.” And again he told officers that he pulled his 

thumb out real quick once that happened.

Finally, the prosecutor briefly touched on what was charged as Count III 

and would be the subject of Instruction 7 (our emphasis):

The defendant also remembers several other times, about three 

or four, that his hand and fingers grazed against [Victim’s]

vagina when he was tickling her.

Presentation of evidence was consistent with these matchups, as were

closing arguments and the verdict-directing instructions, where jurors had to agree 

that Stuckley:

• “inserted his finger” into Victim’s vagina for guilt on Count I under 

Instruction 5,

• “inserted his thumb” into her vagina for guilt on Count II under 

Instruction 6, and 

• “touched the genitals of [Victim] with his hand” for guilt on Count III 

under Instruction 7.

Stuckley’s trial defense was to admit these touchings and penetrations, but 

deny they were prompted by sexual desire as the instructions required for guilt on 
4

each count. The jury acquitted Stuckley on Count I (statutory sodomy, finger 

insertion), and found him guilty on Count II (statutory sodomy, thumb insertion) 

and Count III (child molestation, genital touching without penetration).

We take Stuckley’s three points out of order for convenience.

Point 2 – Instruction 6/Celis-Garcia

In Celis-Garcia, our supreme court considered Missouri’s constitutional 

right to a unanimous jury verdict in a “multiple acts” case, i.e., one where “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.” 344 S.W.3d at 155-56 (our emphasis). 

For example, this would have been a multiple-acts case had the state tried 

all of Stuckley’s acts as one child-molestation count, or both vaginal penetrations 

as one statutory-sodomy count. In those situations, the verdict directors would 

have needed to “differentiate between the various acts in a way that ensured the 

jury unanimously convicted [Stuckley] of the same act or acts.” Id. at 156. “‘The 

defendant is entitled to a concurrence of the minds of the 12 jurors upon one 

definite charge of crime.’” Id. at 155 (quoting State v. Jackson, 146 S.W. 1166, 

1169 (Mo. 1912)). 

But the state did not charge or try this as a multiple-acts case. Instead, per 

one of our supreme court’s Celis-Garcia recommendations, the state elected to 

submit particular criminal acts in separate charges. 344 S.W.3d at 157; State v. 

Flores, 437 S.W.3d 779, 791 (Mo.App. 2014). It charged, tried, and instructed 

upon the two vaginal penetrations as separate counts differentiated by thumb vs. 

finger penetration. It also charged, tried, and instructed upon the bedroom 

incidents separately: statutory sodomy (thumb penetration) vs. child molestation

(other fondlings without penetration).2 Not surprisingly, the court and parties 

thus tried and seemingly perceived this as not being a multiple-acts case.

Yet astute appellate counsel has found and now proffers this brief snippet 

 2 Multiple incidents in this Count III charge do not present a Celis-Garcia problem as 

explained in State v. Henry, 568 S.W.3d 464, 476-77 (Mo.App. 2019); State v. 

Armstrong, 560 S.W.3d 563, 572-74 (Mo.App. 2018); and State v. Walker, 549 

S.W.3d 7, 11-12 (Mo.App. 2018). 
5

from early in Stuckley’s final police interview:

I don’t know if that hand may have – the thumb or something 

went up in there when I picked her up [from the bathtub] like that 

or not. I don’t recall it going in there. 

Point 2 asserts this was evidence that Stuckley twice vaginally penetrated Victim 

with his thumb (at bedtime as he testified, but also during the bath incident) such 

that Count II would be a multiple-acts count with a verdict director, Instruction 6, 

that violated Celis-Garcia. 

While we are skeptical that a fleeting and equivocal denial of thumb 

penetration raises a Celis-Garcia concern in the context of this case,3 the issue is 

whether Stuckley has shown, as he must for plain-error relief, that any error was 

evident, obvious, and clear. Mueller, 568 S.W.3d at 75. This case was tried by a

very experienced criminal-trial judge, a defense attorney who previously had 

raised Celis-Garcia as appellate counsel in this court,4 and a prosecutor’s office 

that charged and tried the case consistent with Celis-Garcia principles. Plainly, 

no one perceived the now-touted snippet – more a denial of penetration than an 

admission, only 10 seconds of a 54-minute sound recording played during a twoday trial – as having put Celis-Garcia in play. Error or not, we see no evident, 

obvious, and clear Celis-Garcia trigger in any real-time, real-world sense of those 

words.

Although that failing alone nixes plain-error relief (Mueller, 568 S.W.3d 

at 75), Stuckley also fails to show manifest injustice. Celis-Garcia’s stated 

concern was juror unanimity about a defendant’s acts and manifest injustice from 

a failure in that regard. For example: 

[T]he fact that Ms. Celis-Garcia relied on evidentiary 

inconsistencies and factual improbabilities respecting each 

specific allegation of hand-to-genital contact makes it more 

likely that individual jurors convicted her on the basis of

different acts. The Court finds that the verdict directors 

 3 Cf. State v. Watson, 512 S.W.3d 94, 97-98 (Mo.App. 2017)(no unanimity concern 

when victim’s testimony did not establish multiple acts of digital penetration and 

defendant admitted to only one such act).

4 See State v. Rose, 421 S.W.3d 522 (Mo.App. 2013), abrogated by Hoeber v. State, 

488 S.W.3d 648 (Mo. banc 2016).
6

misdirected the jury in a way that affected the verdict, thereby

resulting in manifest injustice.

344 S.W.3d at 159 (our emphasis). Similar reasoning may – or may not – even fit 

certain cases where defendants employ a general or unitary defense that the victim 

lied about everything and none of the alleged acts occurred. See Hoeber, 488 

S.W.3d at 656-58; Sanders v. State, 564 S.W.3d 380, 384 n.5 (Mo.App. 2018).

But here, Stuckley admitted the acts alleged and charged. The defense 

theme from opening statement through closing argument was that Stuckley did

touch or penetrate Victim as alleged, but never with criminal (sexual) intent. Actus 

reus was never at issue, only mens rea. Given that defense, Stuckley fails to explain 

why Instruction 6 needed to be more act-specific or so misdirected the jury as to 

affect the verdict.5 Point 2 fails.

Point 3 – Instruction 7/Celis-Garcia

Stuckley’s complaint about Instruction 7, which required jurors to find that

he “touched the genitals of [Victim] with his hand,” cites

• Victim’s testimony about bedroom touchings,

• Stuckley’s testimony and police statement about bedroom 

touchings, and 

• Stuckley’s testimony and police statement about whether he may 

have accidentally brushed Victim’s genitals during the bath 

incident,

in asserting that Count III was a multiple-acts charge and Instruction 7 thus 

violated Celis-Garcia. 

We do not understand Stuckley to claim that the multiple bedroom acts, of 

themselves, raise Celis-Garcia issues. See note 2 supra. Stuckley’s equivocal 

reference to a bath touching seems a weak concern given his defense strategy to 

admit actus reus and deny only mens rea. But if Stuckley was concerned about 

 5 Indeed, this defense focus may offer reasons for competent defense counsel not to cite

Celis-Garcia. When a defendant admits acts, juror unanimity on that issue rarely is a 

key defense concern. Also, Celis-Garcia instruction modifications (see 344 S.W.3d at 

157) seem unlikely to meaningfully help a mens rea defense in that situation, but might 

give the state more ammunition for closing argument. See Sanders, 564 S.W.3d at 382, 

383, 385. 
7

this bath reference, he needed to raise this at instruction conference so the court 

and parties could timely address it. He did not, and his plain-error claim fails for 

reasons already stated. See also Henry, 568 S.W.3d at 477 (state’s evidence and 

argument focused the jury on one of two acts sufficiently to prevent manifest 

injustice). We also note the jury’s Count I acquittal, effectively the bath incident, 

further suggesting that jurors understood the instructions in the context of the case 

and no manifest injustice occurred. Point denied. 

Point 1 – Double Jeopardy

In the points discussed previously, Stuckley portrayed each of his two 

convictions as Celis-Garcia situations – a single charge provable by multiple, 

independently-culpable acts in evidence. Here he draws on “instructing down” 

cases that address a much different situation – a single act constituting multiple 

crimes, specifically lesser-included offenses. Citing instructional-error cases that 

treat child molestation as a lesser-included offense of statutory sodomy, Stuckley 

claims double jeopardy because he was convicted of both.

This hardly merits discussion. It was not double jeopardy if Stuckley “in law 

and in fact committed separate crimes.” Flores, 437 S.W.3d at 793; see also State 

v. Clark, 494 S.W.3d 8, 13 (Mo.App. 2016)(crimes are separate if counts are based 

on different acts). Stuckley does not deny record evidence of separate acts to 

support each of his convictions, so his unpreserved double-jeopardy claim does not 

warrant review. Compare Flores, 437 S.W.3d at 792-94.6 We deny Point 1 and 

affirm the judgment and convictions. 

DANIEL E. SCOTT, J. – OPINION AUTHOR

WILLIAM W. FRANCIS, JR., P.J. – CONCURS

MARY W. SHEFFIELD, J. –CONCURS

 6 After being convicted of 17 child-sex counts, Flores sought plain-error double-jeopardy 

relief as to four counts for which he claimed the supporting acts were indistinct from the 

acts supporting six other counts. Id. at 793. The Western District declined plain-error 

review because the record did not support Flores’ assertions (id.), double jeopardy was 

not apparent from the record, and Flores had not facially established substantial grounds 

for believing manifest injustice had occurred. Id. at 794.