STATE OF MISSOURI, ) ) Respondent, ) )

vs. ) No. SD35350 ) WADE A. STUCKLEY, ) FILED: May 1 3, 2019 ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy, Judge
AFFIRMED Wade Stuckley was convicted of sodomizing and molest ing his girlfriend’s (now wife’s) four

- year
- old child (“Victim”)

. Each of his three points on appeal seek s plain

- error review, two raising Celis

- Garcia complaints 1 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). E ven 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 insert ed his pinky into V ictim’s vagina

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

2. A bedroom tickling incident w here Stuckley admitted to police that h e probably had inserted his thumb into V ictim’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 V ictim’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 ha ir.
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 agai nst the lips of her vagina. He’ ll talk about her slipping and his pinky finger3 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 h e remembers four

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

m e there.” And he said to her, “I’ m sorry . I was just tickl ing. It was an accident.” And again he told officers that he pulled his thumb out real quick once that happened. Finally, the prosecu t or 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 touching s and penet rations , but deny they were prompted by sexual desire as the instructions required for guilt on4 each count . The jury acquitted Stuckley on Count I ( statutory sodomy , f inger insertion), and found him guilty on Count II ( statutory sodomy , t humb 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 th ose situation s , the verdic t director s would have needed to “ differentiate between the various acts in a way that ensure d the jury unanimously convict ed [ 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 t he two vaginal penetrations as separate counts differentiated by thumb vs.
fin ger penetration

. It also charged, tried, and instructed upon the bed room 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 p olice 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 w e are skeptical that a fleet ing 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. Th is 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 two

day 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 t hat 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 jur or 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 Cour t 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 tes timony 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)

. S imilar reasoning m ay

– 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. A ctus

reus was never at issue, only mens rea . Given that defense, Stuckley fails to explain why Instruction 6 needed t o 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

. W hen a defendant admits acts, juror unanimity on that issue rarely i s 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 a t 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 ins tructions 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 s ituations

– 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 constitut ing multiple crimes, specifically lesser

- included offenses. Citing instructional

- erro r 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

- 9 4

. 6 We deny Point 1 and affirm the judgment and convictions.

DANIEL E. SCOTT, J.

– OPINION AUTHOR WILLIAM W. FRANCIS, JR., P.J.

– CON C URS
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.