# In the Missouri Court of Appeals **Eastern District**

DIVISION TWO
ST ATE OF MISSOURI, ) No. ED107976 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) ) DELVIN BROWN, ) Honorable Jason M. Sengheiser ) Defendant/Appellant. ) Filed: August 25, 2020 Introduction Delv in Brown (Appellant) appeals from the judgm ent of the trial court entered after a jury
f o u n d him guilty of two counts of statu tory sodomy in the first degree and one count of
p o ssession of a controlled substance, namely methamp h etamine. 1 We a f f i r m
. Factual and Procedural Background Ap p ellant does not contest the sufficiency of the evid ence to suppo r t his conviction. In th e lig h t most f

avo rab le to the verdict, the facts at trial showed the followin g: Appellant lived with his bio logical daughters, T .B. ( V ictim) and N.B., and their mother ( Mo ther). Victim turned 10 years old the year of t he offenses. N.B. is about a year and a half

o lder than V

ictim.

1 Appellant makes no claim of error related to his conviction for possession of methamphetamine.2

On September 20, 2017, App ellant called V ictim down to th e basement of their home. Ap p ellant instructed V

ictim to bring a towel with her. V ictim brought Appellant the towel, and tried to leave the basement. App ellant told her to sta y . Appellant then took h is pants down to his

an k les and told V

ictim to rub his “private par t s ” with h er h ands, an d V ictim complied. As this

was o ccurr in g, N.B. began to desc end into the basement. Detecti ng her approach, Appellant told
N. B., “Don’t come down here unless you want to help.” N.B. went back upstairs. V ictim continued rubbing Appellant’ s penis 2 until “white stuff cam e out.” V

ictim gave Appellant the

to wel, and Appellant told her to go back up stairs and wash her hands. When V ictim came back

u pstairs, N.B. asked her

w hat had just happened. V ictim told
N.B. Appellant had made her move h er hand up and down on his “priv ate part.” On hear ing this,
N. B

. sent a text message to Mother that read, “Daddy is raping [ V ictim] downstairs.” Believing N.B. had made a typing mistake, Mother replie d, “[ D]id yo u mean who op i ng or raping?” N.B. replied, “[R]aping.” Mother asked if N.B. was certain of this; N.B. relayed to Mother what
V ictim said occurred in the basement. Screen sho ts o f this tex t message conversation were ad mitted into evidence. Sho rtly after this exchan ge, Appellant lef t the house with N.B. to pick Mother u p from

wo r k

. V ictim remained at home. When N.B. a nd App ellant return ed to the house with Mother,
Mo ther took V

ictim and N.B. and left, leaving A ppellant at the house. Mo ther testified her plan was “[t]o not let [Appellan t] know [she] was aware of anything [and] to get [her] kids out of ther e an d get safe.” When Mother was alone with V ictim and N. B

. , she asked the girls what had
h appened. V

ictim told Mother App ellant had made her touch his “private part.” V ictim was upset and crying as she related this to Mother.

2 On direct examination Victim affi rmed by “private” and “private part” she meant Appellant’s penis.3 After hearing this, Mother took Victim and N.B. to the police station. Victim was interviewed by a child abuse detective, Detectiv e Ryan Barone (Det. Barone). Det. Barone interviewed the girls and Mother separately. In a ddition to telling Det. Ba rone about the incident that occurred that day, Victim revealed it was not the first time Appellant had made her touch his genitals. Victim told Det. Barone the abuse had begun when she was in the first grade and had happened several times. She told Det. Barone that all of the incidents were similar, in that they occurred in the basement, except for one incide nt that had occurred in her parents’ shared bedroom. Victim did not elaborate on the bedroo m incident and did not tell Det. Barone when it may have occurred. N.B. was also interviewed by Det. Barone. In addition to relati ng her account of the incident that occurred that day, N.B. reveal ed she had previously witnessed another such incident. N.B. told Det. Ba rone that during the summer of 2017 she ha d gone downstairs and witnessed Appellant and Victim together, with one of Victim’s arms in Appellant’s hand, and Victim’s other hand on Appellant’s genitals. N.B. told Det. Barone she had not told anyone what she had seen. Both girls said they were afraid of Appellant. Victim said Appellant had threatened to kill her and Mother if she told anyone about the abuse. After the interview, Mother signed a Consen t to Search form for Appellant’s and her residence. Police officers arrived at the reside nce to take Appellant into custody. A search incident to his arrest produced a small bagg ie containing methamphetamine in Appellant’s pocket. Police searched the house, locating the towel Victim had told Det. Barone Appellant used in the incident. The towel was collected as evidence. Testing showed the towel was soiled with seminal fluid, which a DNA test revealed belonged to Appellant.4 Appellant was charged with two counts of statutory sodomy in the first degree, stemming from the incident that occurred on September 20, 2017, as well as the incident N.B. witnessed during the summer of 2017. At trial, Appellant defended himsel f by claiming Victim and N.B. had been conscripted by Mother to fabricate the charges agains t him. Appellant characterized his relationship with Mother as cont entious, volatile, and at times viol ent. To explain the presence of his seminal fluid on the towel, Appellant cl aimed it was his habit to watch pornography in his basement and masturbate, using the towel to clean up. During voir dire , counsel for Appellant (trial counse l) questioned the prospective jury about their attitudes towards masturbation. Tw o venirepersons responded to trial counsel’s inquiry regarding masturbation. Trial counsel th en began to ask the jury about their views on pornography. The prosecuting attorney (prosecuto r) objected, claiming that line of questioning would involve too much detail about the evidence to be presented at trial. A discussion was held at sidebar, after which the trial court, agreei ng with the prosecutor, ruled Appellant may not examine the panel on their views of pornography use. At trial, the jury heard th e testimony of Victim, N.B., Moth er, and Det. Barone. Victim and N.B. testified about Appellant’s abuse of Victim on September 20, 2017, and the previous summer. Det. Barone recounted his interviews with the family and his participation with the investigation, including A ppellant’s arrest. Det. Barone testified Victim told him Appellant began sexually abusing her in fi rst grade, with many similar incidents occurring, all of which took place in the basement except for one incident that took place in her parents’ bedroom. The jury also viewed a videotaped forensic interview of Victim, in which she told the interviewer the

same.5 During opening and closing argument, the pros ecutor argued to the jury that Count I, statutory sodomy in the first degree, related to the incident that occurred on September 20, 2017, which N.B. witnessed and about which she testif ied. The prosecutor also argued that Count III, statutory sodomy in the first degr ee, related to the other incident that N.B. witnessed the previous summer. The prosecutor did not encourage the ju ry to find Appellant guilty on the basis of any other instance of sexual abuse al luded to by Victim. Instruction No. 8 given to the jury read: As to Count III, if you find and believe from the evidence beyond a reasonable doubt: First, that on or between May 1, 2017 and August 31, 2017, in the City of St. Louis, State of Missouri, the defendant knowingly had deviate sexual intercourse with [Victim], by touching his penis to [Victim]’s hand, and Second, that at that time [Vic tim] was a child less than twelve years old, then you will find the defendant guilty under Count III of statutory 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, the term ‘deviate sexual intercourse’ means any act involvi ng the genitals of one person and the hand, mouth, tongue, or anus of another person. Appellant did not object to this instruction. After deliberating, the jury found Appellant guilty as charged on all counts. Appellant waived sentencing by the jury. The trial court sentenced Appellant to 10 years’ imprisonment on each of Counts I and III, to be served consecuti vely, and one year on Count II, to be served concurrently with Appell ant’s other sentences. This appeal follows.6 Points Relied On Appellant makes two claims of error on this ap peal. Point I claims the trial court abused its discretion by prohibiting him from questioning prospective jurors on their beliefs regarding masturbation and pornography. Point II claims the trial court plainly erred in offering Instruction No. 8 on Count III because the instruction failed to specify a particular incident of sexual abuse the jurors must unanimously fi nd occurred, such that Appellant’ s right to a unanimous jury verdict was violated. Point I Standard of Review A trial court’s ruling on whether to ex clude a certain line of questioning from voir dire is reviewed for abuse of discretion. State v. Edwa rds, 116 S.W.3d 511, 529 (Mo. banc 2003). “The trial judge is in the best position ‘to judge whether a disclosure of facts on voir dire sufficiently assures the defendant of an impartial trial wit hout at the same time amounting to a prejudicial presentation of evidence.’” Id., quoting State v. Leisure, 749 S.W.2d 366, 373 (Mo. banc 1988). To warrant reversal, Appellant must do more than show the trial court’s ruling was erroneous; he must also demonstrate prejudice. State v. Oate s, 12 S.W.3d 307, 311 (Mo. banc 2000). This is done by showing a “real probability of injury” du e to his missed opportunity to probe the minds of the jurors. State v. Clark, 981 S.W.2d 143, 147 (Mo. banc 1998).
Discussion A criminal defendant is entitled to a fair a nd impartial jury. Oates, 12 S.W.3d at 310. “A necessary component of a guarantee for an impartial jury is an adequate voir dire that identifies unqualified jurors.” Id. “The purpose of voir dire is to discover the stat e of mind of prospective jurors and determine by examination which harbor bias or prejudice against either party which7 would render them unfit to serve as jurors.” Leisure, 749 S.W.2d at 373. “Discovery of the nature and extent of an indivi dual's bias requires not only deep probing as to opinions held but also the revelation of some portion of the facts of the case.” Id. However, counsel’s presentation of facts to the venire panel is not unfettered. While “an insuff icient description of the facts jeopardizes [A]ppellant’s right to an impartial jury,” State v. Antwine, 743 S.W.2d 51, 58 (Mo. banc 1987), “counsel is not pe rmitted to try the case on voir dire by a presentation of facts in explicit detail.” Leisure, 749 S.W.2d at 373. “Thus, a balanc e must be struck implicating both due process concerns and the requ irements of the individual case .” Id. (citation and internal quotation marks omitted). Charged with maintaining th is balance, “the trial judge is vested with the discretion to judge the appropr iateness of specific questions, and is generally vested with wide discretion in the conduct of voir dire .” Oates, 12 S.W.3d at 310. On appeal, Appellant complains the trial co urt prevented him from probing the minds of prospective jurors for potentia lly disqualifying biases against masturbation and pornography. However, the record clearly refutes this claim. Appellant was granted sufficient latitude to question the venire panel as to whether they held potentially disqua lifying beliefs about masturbation. Appellant’s question to the panel about masturbation elicited responses from two panel members, and Appellant was allowed to probe their potential biases. It was not until Appellant moved on to the related subject of por nography that the prosecutor objected and the trial court sustained that objection. The only possible basis then for Appellant’s claim is that he was prevented from questioning the venire panel about the closel y related topic of por nography in addition to masturbation. Because Appellant’s brief proceed s by mischaracterizing the trial court’s ruling, he does not argue or demonstr ate how pornography use alone was such a “critical fact... with8 substantial potential” to reveal a “disqualifying bi as” that the trial court’s ruling subjected him to a real probability of prejudice. Clark, 981 S.W.2d at 147. Given the wide discretion of the trial court, and Appellant’s failure to demonstrate othe rwise, we find no error in its characterization of the use of pornography as an unnecessary detail of Appellant’s alleged masturbation practices. Point I is denied. Point II Standard of Review Appellant concedes he neither objected to th e jury instruction he now complains of, nor included this claim of error in his motion for new tr ial. Thus, we may at mo st consider this claim under a plain error standard. State v. Car lton, 527 S.W.3d 865, 870 (Mo. App. E.D. 2017). Rule 30.20 3 provides: “Plain errors affecting subs tantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Review fo r plain error is a two-step pro cess: First, the reviewing court determines whether an error af fecting Appellant’s s ubstantial rights is ev ident, obvious, and clear. State v. Myles, 479 S.W.3d 649, 655 (M o. App. E.D. 2015). “Substantial rights are involved if, facially, there are si gnificant grounds for believing that th e error is of the type from which manifest injustice or miscarriage of justice c ould result if left uncorrected.” State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). Second, we determ ine that error actually resulted in a manifest injustice or miscarriage of justic e. State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo. banc 2009). “Instructional error is plain error when it is apparent the error affected the verdict.” Hunt, 451 S.W.3d at 260.

3 All rule references are to Mo. R. Crim. P. (2018), unless otherwise specified.9 Discussion Appellant contends this is a “multiple acts” case, like the one discussed in State v. CelisGarcia, 344 S.W.3d 150 (Mo. banc 2011). “A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which coul d serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count.” Id. at 155-56. “In multiple acts cases, the possibility exists that jurors follow the trial court’s instructions, yet individually choose differing instances of the crime on wh ich they base the conviction, violating the defendant’s right to a unanimous jury verdic t.” State v. Henry, 568 S.W.3d 464, 470 (Mo. App. E.D. 2019), citing State v. Watson, 407 S.W.3d 180, 184 (Mo. App. E.D. 2013). A criminal defendant’s right to a unanimous jury verdict to support their convicti on is guaranteed under the Missouri Constitution. MO. CONST. art. I, § 22(a); Celis-Garcia, 344 S.W.3d at 155. Appellant contends this case implicates Celis-Garcia because although the prosecutor argued to the jury that Instruc tion No. 8, relating to Count III, corresponded to the instance of abuse witnessed by N.B. during the summer of 2017, there exists a possibility some jury members may have based their finding of guilt on other instances of sexual abuse perpetrated by Appellant which Victim disclosed in her intervie ws with Det. Barone and the CAC, including at least one instance that occurred in the parents’ shared bedroom. The court in Celis-Garcia offered two methods to address the potential for a nonunanimous verdict in multiple acts cases, by either 1) the prosecutor electing a particular criminal act with which to suppor t the charge, to the exclusion of other criminal acts, or 2) describing in the verdict director itself the separate criminal acts and instructing the jury it must unanimously agree upon at least one part icular act’s occurrence. Id. at 157.10 On appeal, the State argues the prosecutor chos e route 1), by electing a particular instance of sexual abuse upon which to base Count III. The State notes the prosecutor consistently argued to the jury throughout the trial th at the instance of sexual abuse ch arged in Count III was the one witnessed by N.B. during the summer of 2017. It is true that, in the instant case, the pr osecutor was consistent in his presentation of evidence and argument to the jury that the statutory sodomy charge s were meant to refer to the instances of sexual abuse witnessed by N.B. on September 20, 2017, and the summer of 2017. However, the verdict directors themselves contai ned no indication that other instances of sexual abuse – those not witnessed by N.B., includi ng the instance that took pl ace in Appellant’s and Mother’s bedroom – could not potentially serve as the basis of Count III. Although the evidence of sexual abuse other than the tw o acts witnessed by N.B. was scan t, nothing in the record can exclude the possibility some of them may have taken place during the summer of 2017. Thus, there was, however remote, some possibility that jurors could have based their finding of guilt on different instances of sexual abuse. We note there is nothing in the text of Celis -Garcia that mandates th e State must “elect” a specific criminal act to support a charge by in cluding in the verdict director an explicit instruction that excludes the consideration of other criminal acts. Thus, under Celis-Garcia alone, it might appear sufficient that the prosecutor “elect” to prove a specific criminal act by specifying it through the presentation of eviden ce and argument to the jury. However, the Western District has considered, and rejected, this view in Stat e v. Escobar, 523 S.W.3d 545 (Mo. App. W.D. 2017). In Escobar, the court found th at although the prosecutor was clear during trial which acts corresponded to which instructions, this was insufficient to satisfy the first CelisGarcia method because the verdict directors themse lves did not so differentiate. Id. at 551. The11 Escobar court held, “Unfortunately , the State’s clarification of the acts they were charging in closing argument cannot cure the fa ilure of the State to specify in the jury instructions the two instances of conduct to support the charges as we must presume that the jury followed the jury instructions as written not the State’s closing argument. ” Id. (emphasis added). In the instant case, we must also presume the jury followed the instructions it was given, and not the argument of the prosecutor. S ee State v. Rycraw, 507 S.W.3d 47, 63-64 (Mo. App. E.D. 2016) (“We presume the jury followed the in structions given by the trial court, not the prosecutor’s closing arguments.”). The verdict di rector for Count III instructed the jury to find Appellant guilty if it found he ha d committed certain acts during th e summer of 2017. As noted above, evidence of sexual a buse not witnessed by N.B. was scant; but there was evidence of other sexual abuse presented to th e jury, including an incident that occurred in the parents’ shared bedroom. Further, no evidence at trial excluded the possibility some of these other incidents occurred during the summer of 2017. Because the ve rdict director for Count III did not specify it referred to the incident witnessed by N.B., there is at minimum a remote and hypothetical possibility some juror may have found Appellant guilty of different instances of sexual abuse. However, it is not enough that Appell ant demonstrate a remote and hypothetical possibility of prejudice. “[U]nde r plain error review, [Appellant] mu st also show that the trial court's error resulted in manifest injustice or a miscarriage of justice, thereby warranting reversal.” Escobar, 523 S.W.3d at 551. Under th ese circumstances, taken as a whole, Appellant cannot show the verdict was affected by any instru ctional error. First, while the State’s clear focus on the two instances of sexual abuse witne ssed by N.B. does not itself cure instructional deficiencies, it is relevant in examining whether a manifest injustice resulted. Id. at 552. Here, as in Escobar, the prosecutor “focused its inqu iry and its evidence” on the two instances of abuse12 witnessed by N.B., and then argued to the jury it meant to support the ch arges against Appellant with the evidence of those specific instances. Id. This clear focus by the prosecutor greatly reduces the risk the jury may have found Appellant guilty based on an instance of sexual abuse other than the two upon which the prosecutor focu sed. Id.; see also Henry, 568 S.W.3d at 477 (State’s closing argument specifying which acts supported charges “prevented manifest injustice”). Any risk of a non-unanimous ve rdict is further diminished by the scant and insubstantial evidence of other criminal acts committed by Appellant, rendering it even lesslikely any juror would have chosen one of them as the basis of Appellant’s guilt and not the welldeveloped evidence of the se xual abuse witnessed by N.B. Further, as in Escobar, the nature of the defense mounted by Appella nt is relevant. In Celis-Garcia, the Missouri Supr eme Court supported its finding of prejudice by noting the tactics the defense used to attack the prosecutor’s cas e: picking apart witnesses’ accounts of each individual act through cross-examination show ing testimonial inconsistencies and factual improbabilities. Celis-Garcia, 344 S.W.3d at 159. Because the jury was presented with multiple distinguishable acts, each account of which was a ttacked by the defense, there existed a greater possibility jurors could have believed different instances occurred. Id. However, the potential for prejudice is reduced where the defense mount s a more general defense by claiming “that the victim[] simply fabricated her stor ies....” Id. at 158. Here, Appella nt’s defense at trial was that all allegations of sexual abuse against him had b een fabricated by Victim and N.B. at Mother’s behest, due to personal animosity against him. Because Appellant’s defense did not employ the kind of exhaustive factual rebutta l as in Celis-Garcia, this t oo weighs against a finding of prejudice.13 Taken as a whole, the record does not reve al any instructional error amounting to plain error, such that a manifest injustice or miscarri age of justice occurred. Subsequently, Appellant’s Point II is denied. Conclusion The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, J. Robin Ransom, P.J., and Lisa P. Page, J., concur.