STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SD36093

) Filed: October 6, 2020

DAVID RODNEY SCHACHTNER

, )

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

Honorable Gayle L. Crane

, Judge

AFFIRMED

, AND REMANDED WITH INSTRUCTIONS

David R. Schachtner (“Schachtner”) appeals his conviction, following a jury trial, of one

count of statutory sodomy in the first degree

. Schachtner challenges his conviction in six points

on appeal. We find no merit to Schachtner’s Points I, II, III, IV and VI, and those points are

accordingly denied. We find merit to Schachtner’s Point V, which challenges that the trial court

plainly erred in entering written judgment of sentence for “999 Years,” w hereas the trial court’s

oral pronouncement of sentence was for “ life imprisonment. ” We remand with instructions that

the trial court enter written judgment of sentence to reflect its oral pronouncement of sentence.2 Facts and Procedural History

We recite the evidence and the reasonable available inferences therefrom in the light most

favorable to the verdict. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc 2016). We recite

other information as necessary for context.

In June 2017, Schachtner entered the bedroom of Victim (a 7

- year

- old girl) at night while

Victim was sleeping. He pushed Victim’s pants and underwear a side, and touched Victim’s

genitals with his hands and mouth. Victim woke up, and Schachtner termi nated the assault at that

time.

Victim reported the abuse. Victim’s mother (“Mother”) confronted Schachtner regarding

his sexual assault of Victim, at which time “[h]e stood up and he began pacing back and forth

saying that he made a mistake, he didn’t mean to do that.” Mother prevailed upon Schachtner to

apologize to Victim, and Schachtne r admitted to Victim “that what he did was not okay [

, ] ” and

that it was “something that adults shouldn’t do to children[.]” Schachtner was subsequently

apprehended and charged by amended information, as a prior offender, with statutory sodomy in

the first degree, pursuant to section 566.062. 1

Schachtner was questioned by police and admitted that he “licked [Victim] near her

privates

. ” Victim’s underwear was DNA tested, and the two DNA profiles developed were

consistent with Schachtner and Victim.

Prior to trial, the State filed a motion to admit propensity evidence, whi ch asserted that

Schachtner had committed the crime of statutory sodomy in the first degree by previously touching

a child under the age of 12 years old inappropriately 10

- 20 times. After h earing argument, the trial

court sustained the State’s motion.

1 All references to statutes are to RSMo Cum.Supp. 2006, unless otherwise indicated.3

A jury trial commenced on January 8, 2019. During the State’s direct examination, and

during Schachtner’s cross

- examination, the propensity witness testified that when she was nine or

ten years old and Schachtner was thirteen or fourteen, on ten or more occasions, he entered her

bedroom at night while she and other members of the household were sleeping and touch ed her

genitals with his hands. She reported Sch achtner’s abuse and a member of the household installed

a lock on her bedroom door . Undeterred, Schachtner then gained access to the witness’s bed room

through a window.

During Mother’s testimony, she was asked if she found something on Schachtner’s

cellphone that “should have raised bigger flags[.]” Defense counsel objected that this violated the

best evidence rule, and the trial court overruled the objection. Mother th en testified that she found

a porn website in a search history on Schachtner’s cellphone. She clicked on the website and found

a video of an “underdeveloped” female who appeared prepubescent . Mother confronted

Schachtner

— he claimed the website allowed him to find younger looking girls, but that everyone

on the website was at least eighteen years old. Schachtner then locked his phone so that Mother

could not access it in the future

.

Schachtner testified in his own defense. He admitt ed to “lick[ing] [Victim]’s leg,” but

claimed he obtained no “sexual gratification from this action at all. It’s discussing [sic]

. ” He

stated he did not know why he did i t, but denied that it was for sexual gratification. Schac h tner

also testified regar ding the alleged “child porn on [his] phone [

, ] ” stating he only accessed the

pornographic website to see “a girl from Joplin

. . . [who] does porn [,] ” and whom he and another

friend “recognized

. . . from Facebook.”

The jury found Schachtner guilty of statutory sodomy in the first degree. The trial court

made oral pronouncement of sentence to Schachtner, as a prior and persistent offender, to life4

imprisonment; however, the trial court’s written judgment of sentence records the “Length” of

se ntence as “999 Years,” but then records under “Text”: “Life Imprisonment

. . . as a prior

offender[.] ”

On January 27, 2019

, Schachtner filed a motion for new trial. On March 25, 2019,

Schachtner also filed a “Motion for Dismissal of Convictions for State s [sic] Failure to Provide

Impeachment Evidence or in the Alternative a Motion f or New Trial for States [sic] Failure to

Provide Impeachment Evidence

, ” which assert ed , in part, that there was a Brady [ 2 ] violation

because the State fail ed to provide the defense a copy of Victim’s “trauma narrative

, ” which should

have been part of the C hild Advocacy Center’s case file. Defense counsel argued that had the

prosecutor timely provided this narrative, the defense c ould have used it to cross

- exa mine Victim

about prior inconsistent statements. After a hearing, the trial court overruled both motions. This

appeal followed.

In six points on appeal, Schachtner argues :

1. The trial court plainly erred in accepting the jury’s verdict and entering sentence

and judgment for first

- degree sodomy with a victim less than twelve years old, in

that the aggravating fact of Victim being less than twelve years old was an element

of the cri me that had to be, and was not, submitted to the jury;

2. The trial court abused its discretion in denying Schachtner’s motion to dismiss

based on the State’s alleged Brady violation in failing to disclose Victim’s trauma

narrative;

3. The trial court abused its discretion in rejecting Schachtner’s objection and

permitting Victim’s m other to give testimony describing Schac h tner’s browser

search history and a video she saw on Schac h tner’s cellphone, in that this testimony

was not “the best evidence of these documents”;

4. The trial court abused its discretion in overruling Schachtner’s objection, sustaining

the State’s motion, and permitting the State’s propensity witness to testify to

“uncharged misconduct that [Schachtner] entered her room and touche d her vaginal

area more than ten times when [he] was aged thirteen and she was ten” ;

2 Brady v. Maryland

, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

.5

5. The trial court “plainly erred in executing its written judgment denoting the length

of [Schachtner ] ’s sentence as ‘999 Years[,]’” because this sentence “materially

dif fers from the trial court’s oral pronouncement of a life sentence”;

6. The trial court plainly erred in rejecting Schachtner’s motion for new trial because

“the cumulative prejudicial effect of each of the preceding claims demonstrate [he]

did not receive a fair trial even without deciding whether the error[s] claimed in

Points I through V

. . . individually warrant reversal.”

Principles of Review

“The trial court has broad discretion to exclude or admit evidence at trial. This Court will

reverse only upon a showing of a clear abuse of discretion.” State v. Shockley , 410 S.W.3d 179,

195 (Mo. banc 2013). “We further note that we review for prejudice, not mere error, and will

reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v.

Bumbery , 492 S.W.3d 656, 665 (Mo. App. S.D. 2016) (internal quotation and citation omitted).

“Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s

error affected the outcome of the trial.” Id.

The general rule in Missouri is that evidence must be both logically and

legally relevant in order to be ad missible. Evidence is logically relevant if it tends

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence, or if

it tends to corroborate evidence w hich itself is relevant and bears on the principal

issue of the case. The determination of legal relevance

— the balancing of the

probative value of the proffered evidence against its prejudicial effect on the jury

—

rests within the sound discretion of the t rial court.

State v. Tisius , 92 S.W.3d 751, 760 (Mo. banc 2002) (internal quotations and citations omitted)

(internal footnotes omitted).

Point I: Instruction No. 5 and Age of Victim

In his first point, Schachtner argues that the trial court “plainly erred in accepting the jury’s

guilty verdict and entering sentence and judgement for first

- degree statutory sodomy with a n

alleged victim less than twelve years old,” pursuant to section 566.062, in that “the aggravating6

fact of [Victim] allegedly being less than twelve years old

. . . [was] an element of the crime that

had to be submitted to the jury [

. ] ” Scha ch tner’s point further claims that this issue was not

submitted to the jury in Instruction No. 5 , and that the jury likewise did not make su ch required

finding.

The record reflects the following colloquy at the jury instruction conference as relevant to

Instruction No. 5 : 3

B Y THE COURT: Instruction Number 5 is submitted by the State,

MAI

- CR 4 th 420.16. Any objection by the defense?

BY [DEFENSE C OUNSEL]: There is no objection, Your Honor.

. . . .

BY THE COURT: Are there any other instructions that the defense wishes

to submit to the Court?

BY [DEFENSE COUNSEL]: There is none, Your Honor, and if you wish

a record be made about that, one can be made.

3 The record reflects that Instruction No. 5 (submitted by the State ) indicated as follows:

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

First, that on or about June, 2017, in the State of Missouri, the defendant licked near

[ Victim ] ’s genitals, and

Second, that such conduct was a substantial step toward the commission of the offense of

statutory sodomy in the first degree, and

Third, that defendant engaged in such conduct for the purpose of committing such statutory

sodomy in the first degree,

t hen you will find the defendant guilty of statutory sodomy in the first degree under this instruction.

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 gui lty of that offense.

A person commits the offense of statutory sodomy in the first degree if he or she knowingly

has deviate sexual intercourse with another person who is less than twelve years of age.

As used in this instruction, the term ‘ deviate sexual intercourse ’ means any act involving

the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act

involving the penetration, however slight, of the penis, female genitalia, or the anus by a finger,

instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.

As used in this instruction, the term ‘ substantial step ’ means conduct that is strongly

corroborative of the firmness of the defendant’s purpose to complete the commission of t he offense

of statutory sodomy in the first degree.

See MAI

- CR 4 th 420.16 ( on which this instruction was based)

.7

Here, as in State v. Sanders , 449 S.W.3d 812, 816 (Mo.App. S.D. 2014)

, “ not only did

Defendant fail to assert any objection, as directed by Rule 28.03, [ 4 ] Defendant expressly

represented and stated to the trial court that he had no objection to Instruction No. 5. ” Id

. 5

Schachtner’s brief concedes that he also did not “assert this allegation of error in his motion for

new trial or at sentencing,” and that this error is not preserved for our review. See id

. It has been

observed that even where “trial counsel affirmatively stated that he had no objection” to an offered

instruction, “unpreserved claims of plain error relating to jury instructions may still be reviewed

under Rule 30.20 if manifest injustice woul d otherwise occur.” State v. Berry , 506 S.W.3d 357,

36 1

- 6 2 (Mo.App. W.D. 2016) (internal footnote omitted)

.

Nevertheless, p lain error review “requires a finding that manifest injustice or a miscarriage

of justice has resulted from the trial court error.” State v. Perry , 548 S.W.3d 292, 300 (Mo. banc

2018) ( internal quotation and citation omi t ted ). “Plain error review is discretionary, and thi s Court

will not review a claim for plain error unless the claimed error facially establishes substantial

grounds for believing that manifest injustice or miscarriage of ju stice has resulted. ” State v. Clay

,

533 S .W.3d 710, 714 (Mo. banc 2017) ( internal q uotation and citation omitted) . “Plain error must

be evident, obvious, and clear.” State v. Riggs , 520 S.W.3d 788, 794 (Mo.App. S.D. 2016)

(internal quotation and citation omitted). Defendant bears the burden of demonstrating a manifest

injustice occurre d. State v. Oates , 540 S.W.3d 858, 863 (Mo. banc 2018).

Here, Schachtner fails to facially establish substantial grounds for believing that manifest

injustice or miscarriage of justice has resulted, and we therefore decline in our discretion to engage

in plain error review on such basis. See id

. Schac h tner’s Point I is accordingly denied.

4 All rule references are to Missouri Court Rules (20 17 ).

5 Cf.

, State v. Davidson

, 599 S.W.3d 257, 262

- 63 (Mo.App. S.D. 2020) (discussing the issue of waiver upon defense

counsel’s statement of “no objection” to a proposed jury instruction in the context of multiple acts cases).8 Point II: Alleged Brady Violation Regarding Trauma Narrative

Schachtner’s second point argues that “ [ t ] he trial court abused its discretion denying [his]

motion for dismissal of conviction alleging a Brady violation for [the State’s ] failure to disclose

[Victim]’s trauma narrative[.]”

If the state suppresses evidence favorable to a defendant and material to either the

guilt or penalty phase, due process is violated. Brady [ v. Maryland ] , 373 U.S. [83,]

87, 83 S.Ct. 1194

, [ 10 L.Ed.2d 215 (1963)]

. The state violates due process

regardless of whether it withheld the evidence in good faith or in bad faith. Id. A

Brady violation contains three components: The evidence at issue must be

favorable to the accused, either because it is exculpatory, or b ecause it is

impeaching; that evidence must have been suppressed by the state, either willfully

or inadvertently; and preju dice must have ensued.

Shockley v. State , 579 S.W.3d 881, 920 (Mo. banc 2019) (internal quotations and citations

omitted). “ Prejudice in this context is interchangeable with materiality

. ” State v. Moore

, 411

S.W.3d 848, 856 (Mo.App. E.D. 2013) ( internal quotation and citation omitted). “ Brady is not

violated

. . . if the [allegedly undisclosed] information was not material.” State ex rel. Woodworth

v. Denney , 396 S.W.3d 330, 341 n.7 (Mo. banc 2013). A defendant “need not show that he more

likely than not would have been acquitted had the new evidence been admitted. He must show

only that the new evidence is suff icient to undermine confidence in the verdict.” Wearry v. Cain

,

136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) ( internal quotation s and citation s omitted).

Significantly, “[t] he principle

. . . is not punishment of society for misdeeds of a prosecutor but

a voidance of an unfair trial to the accused. ” Brady , 373 U.S. at 87.

Here, the record reflects that the substance of the allegedly undisclosed evidence

— i.e.

,

Vic tim’s trauma narrative

— stated the following:

[VICTIM]’S STORY

MY NAME IS [ ] . I AM 7 3⁄4 OLD. I LIVE WITH MY MOM AN D MY KINDA

STEPDAD []. I HAVE A BROTHER NAMED []. HE’S NICE AND

SOMETIMES HE CAN GET ON [MY] NERVES!9 A FEW MONTHS AGO, [SCHACHTNER] LIVED WITH US. WHE N WE

FIRST MET, I THOUGHT HE WAS A GOOD GUY. WE GOT TO WATCH

MOVIES ON HIS PHONE, LIKE SPIDERMAN AND GREEN ARROW AND

BATMAN VERSUS SUPERM AN.

ONE NIGHT WHEN I WAS IN MY ROOM, HE CAME INTO MY ROOM. HE

KINDA WOKE ME UP BY PUSHING ON ME. LIKE HE WAS TRYING TO

MOVE ME BACK AND FOR TH. HE WAS USING MO STLY HIS HANDS

AND HIS MOUTH ON MY PRI VATES. HE PUT HIS H ANDS ON MY

PRIVATES AND RUBBING MY BACK FOR SOME RE ASON. I DON’T

KNOW WHY. HE TOLD M E TO TOUCH HIS PRIVA TES BUT I TOLD HIM

NO. IT HAPPENED FOR 2 NIGHTS IN A ROW. IT MADE ME FEEL

CONFUSED. I DIDN’T KNOW WHAT WAS GOING ON, HE TOLD ME

NOT TO TELL ANYBODY OR ELSE HE WILL GO T O JAIL. I THOUGHT

IT MADE ME KINDA HAP PY TO KNOW THAT BECA USE I DIDN’T

KNOW WHAT WAS GOING ON AND I WAS SO CONF USED. I SAID

OKAY TO HIM BUT WAS ACTUALLY LYING TO HI M BECAUSE ON THE

3 RD MORNING ON THE WAY TO THE CA R I TOLD MY MOM AND WE

BOTH STARTED CRYING. SHE SAID THAT HAPPEN ED TO HER WHEN

SHE WAS A LITTLE GIR L. SHE TOLD [SCHACHTNER] BEFORE NEVER

TO HURT ME BUT HE DI D ANYWAY AND NOW HE’ S IN JAIL. HE WAS

DRINKING WHEN HE WAS DOING THAT TO ME BE CAUSE I SMELLED

IT ON HIM AND WHEN I W ENT TO BED HE GOT OU T A LOT OF

ALCOHOL AND IT WAS S TILL THERE THE NEXT MORNING. HE

NEVER CLEANED UP HIS OWN MESSES.

HE WAS NOT A GOOD GU Y AND WE KNOW THAT N OW.

THEN I CAME TO THE C HILDREN’S CENTER AND THEY INTERVIEWED

ME. I FELT REA LLY NERVOUS AND THEN I MET MS. TER E SSA MY

COUNSELOR.

I HAVE LEARNED NOT T O KEEP SECRETS. I H AVE LEARNED NOT TO

TOUCH OTHER PEOPLE I N DIFFERENT WAYS ON THEIR PRIVATE

PARTS AND NO ONE TOU CHES ME THAT WAY EIT HER.

I’VE LEARNED THAT IF SOMETHING FEELS NOT RIGHT TO ME THEN I

SHOULD TELL SOMEONE I TRUST. I WOULD TE LL OTHER KIDS THAT

IF SOMETHING FEELS N OT RIGHT THEN THEY N EED TO TELL THEIR

TEACHER OR MOM BECAU SE IT IS NOT APPROPR IATE.

I’VE LEARNED ALL ABO UT MY FEELINGS AND T HEY ARE ALL OKAY.

NOW I FEEL REA LLY HAPPY AND OKAY. THE END!

(Formatting altered).10

Schachtn er claims that this evidence was material, and that its suppression was prejudicial

for Brady purposes . Schac h tner does not allege that the trauma narrative was material (or

prejudicial) with respect to the actus reus of statutory sodomy in the first degree

— rather,

Schachtner’s brief candidly concedes that “[i]t is

. . . true the act in question was undisputed. ” 6

His brief proceeds yet further in this tack, suggesting that the entire trial below b oiled down to

whether Schachtner acted with the requisite mens rea ( i.e.

, whether he acted with intent to gratify

sexual desire )

, and that the substantive evidence of such was contained in the testimony of Victim,

Mother, and Schachtner, resulting in a “pure credibility battle” between them.

We are not persuaded. “[D ] irect evidence [ of a defendant’s mental state] is rarely available,

instead intent is most often proven by circumstantial eviden ce. Intent may be inferred from

surrounding facts or the act itself .” 7 State v. Greenlee

, 327 S.W.3d 602, 618 (Mo.App. E.D.

2010) (internal quotation and citation omitted) (emphasis added)

. Significant amounts of both

species of circumstantial evidence were adduced at trial

— Schachtner wholly fails to effectively

confront such evidence in his instant argument. “[W]e cannot and will not” act as advocate for

Schachtner by scouring the record in search of evidence in support of his arguments, or seeking to

devise our own arguments on his behalf. State v. Thomas , 590 S.W.3d 441, 446 (Mo.App. S.D.

2019) (internal quotation and citation omitted)

.

Moreover, we are wholly unconvinced by Schachtner’s argument that his u tilization of

Victim’s trauma narrative would have (in any rational estimation) assisted his defense, much less

6 “ [P] arties cannot stipulate to legal issues,” State v. Hardin

, 429 S.W.3d 417, 421 n.4 (Mo. banc 2014) ; whereas (as

applicable here) “ a statement of fact asserted in one party ’ s brief and conceded as true in the opposing party ’ s brief

may be considered as though it appears in the record.” State v. Cole , 384 S.W.3d 318, 324 n.5 (Mo.App. S.D. 2012)

(internal quotation and citation omitted)

.

7 “Touching a woman’s vagina is an inherently sexual act , which can alone serve as evidence of Defendant’s intent to

arouse or gratify either his or her sexual desire.” State v. Ganzorig , 533 S.W.3d 824, 830 (Mo.App. E.D. 2017)

.11

that the non

- disclosure of such narrative should be considered “ suff icient to undermine confidence

in the verdict.” Wearry , 136 S.Ct. at 1006

.

The actual (credited) evidence adduced at trial indicated that Schachtner waited until night,

and then entered the bedroom of a sleeping 7

- year

- old girl (Victim). While Victim was still asleep,

he pushed her shorts and underwear a side, and then touched Vi ctim’s genitals with his hands and

mouth. Victim woke up, at which time Schachtner stopped sexually assaulting Victim. Over the

course of nine pages in his brief, Schachtner attempts to persuade us to adopt the following

supposition: that it would have helped Schac h tner’s case ( i.e. , specifically as to mens rea , and

whether Schac h tner acted with intent to gratify his sexual desire) if the jury were also presented

with evidence that : (1) Schachtner actually did not stop sexual assault when Victim woke up

,

but rather i gnored Victim’s protest for him to stop and persisted in his assault of awake

Victim ; and (2) Schachtner did not begin his charged act while Victim was clothed , but rather, he

initiated the act while Victim was naked

. 8

As to Schachtner’s mens rea (whether he acted with intent to gratify his sexual desire), and

such having been c onceded by Schacht n er as the sole issue before us, we agree with the State’s

terse evaluation: “Defense counsel would have been foolhardy to elicit evidence of additional acts

of [Schac h tner] that placed him in a bad light and, if anything, would have likely made the jury

more inclined to convict him.” These materials were of marginal (if any) va lue for the purpose

now asserted (Schachtner’s mens rea ), carried extremely significant risk if presented before the

jury, and extremely limited potential reward.

Schachtner fails to demonstrate that the matters challenged in his Point II are “ suff icient to

under mine confidence in the verdict. ” Wearry , 136 S.Ct. at 1006

. Point II is accordingly denied.

8 Schachtner’s brief utilizes these conclusions about the import of the Victim’s trauma narrative

— our recitation should

not be interpreted as our agreement with these conclusions

.12 Point III: Browser History and Video

In his third point, Schachtner claims that the trial court abused its discretion in rejecting his

objection “and p ermitting [Mother] to give testimony d escribing browser search history and a

video” she observed on Schachtner’s cellphone, in that her testimony was “not the best evidence

of these documents [

. ] ”

The record reflects

— and Schac h tner’s brief directs us to

— Sc hachtner’s detailed testimony

on this matter at trial

.

A complaining party is not entitled to assert prejudice if the challenged evidence is

cumulative to other related admitted evidence. Cumulative evidence is additional evidence

that reiterates the same point. Evidence

. . . that is cumulative of other, properly admitted

evidence cannot have contributed to a defendant ’ s conviction and so is harmless beyond a

reasonable doubt.

State v. Brandolese , 601 S.W.3d 519, 536 (Mo. banc 2020) (internal quotations and citations

omitted)

. P oint III is denied.

Point IV: Propensity Evidence

In his fourth point, Schachtner argues that the trial court abused its discretion in “overruling

[his] objection, sustaining [the State’s ] motion, and permitting [ propensity witness ] to testify to

uncharged misconduct that [Schac h tner] entered her room and touch ed her vaginal area more than

ten times when [he] was aged thirteen and she ten[.]”

The trial court’s treatment of a challenge to propensity evidence (as here) is an “ evidentiary

ruling [

, ] ” and “like all claims of evidentiary error, is reviewed for an abuse of discretion.” State

v. Williams

, 548 S.W.3d 275, 287 (Mo. banc 2018) (emphasis added). “ [T]he job of ‘weighing’

the probity of evidence, most of which is typical ly subject to credibility determinations, and then

decidin g what prejudicial evidence is ‘ unfairly ’ prejudicial, is best left to the discretion of the trial13

court. And those discretionary calls are rarely overturned [.]” State v. Downum

, 598 S.W.3d 189,

200 (Mo.App. S.D. 2020) (applying Williams , 548 S.W.3d at 281; M O C ONST

. art. I, § 18(c)).

The record reflects that in cross

- examining the propensity witness

, defense counsel

adduced testimony before the jury as to the particulars of the allege d assaults by Schachtner against

her ; what methods she and other members of the household took “to stop [Schachtner] from

allegedly touching near [ her ] privates [] ” ; the fact that the assaults took place “in the middle of the

night

. . . while [ she and other members of the household ] were asleep [] ” ; the specific methods by

which Schac h tner gained entry into her bed room; and the (unsuccessful) measures taken to keep

Schac h tner out

. In other words, the evidentiary substance underpinning Schacht n er’s claim of

error was adduced by both the State and (in turn) defense counsel

. “ It is axiomatic that a defendant

may not take advantage of self

- invited error or error of his own making.” Brandolese

, 601 S.W.3d

at 531 (internal quotation and citation omitte d). Point IV is denied.

Point VI: Alleged Cumulative Prejudice

For ease of analysis, we take Schac h tner’s Points V and VI out of order. In his sixth point,

Schachtner argues that “[t]he trial court plainly erred in overruling [his] motion for new trial

. . .

in that the cumulative prejudicial effect of each of the preceding claims demonstrate [he] did not

receive a fair trial even without deciding whether the error[s] claimed in Points I through V

inclusive individually warrant reversal.”

Error is a prerequisite to prejudice. Schachtner demonstrates error in his Point V (discussed

infra ) and our disposition affords the remedy appropriate thereto. By contrast, Schachtner fails to

demonstrate error in his Points I through IV, and therefore no prejudice (cumulative or otherwise)

is applicable thereto. See State v. Hunter

, 840 S.W.2d 850, 869

- 70 (Mo. banc 1992) (“Numerous

non

- errors cannot add up to error.”). As such, Schachtner’s Point VI is denied.14 Point V: Trial Court’s Oral and Written Sentences

Schac h t ner’s fifth point argues that “[t]he trial court plainly erred in executing its written

judgment denoting the length of [his] sentence as ‘999 Years[,]’” because this sentence “materially

differs from the trial court’s oral pronouncement of a life sentence[.]”

The record reflects that such “material difference” exists between the written judgment

imposing sentence and the trial court’s “or al pronouncement of sentence.” State ex rel. Zinna v.

Steele

, 301 S.W.3d 510, 516 (Mo. banc 2010) ( internal quotations and citation omitted). In such

a situation, “ the oral sentence controls, and the w ritten judgment is erroneous.” Id. (internal

quot ation and citation omitted).

Schachtner’s Point V is granted. We remand for entry of written sentence of judgment in

accord with the trial court’s oral pronouncement o f sentence. 9 The judgment of the trial court is

affirmed in all other respects.

WILLIAM W. FRANCIS, JR., J.

- OPINION AUTHOR

GARY W. LYNCH, P.J.

- CONCURS

NANCY STEFFEN RAHMEYER, J.

– CONCURS AND FILES SEPARATE CONCURRING

OPINION

9 Cf.

, Lemasters v. State

, 598 S.W.3d 603, 606 n.3 (Mo. banc 2020) (“[I]t is not, and never was, necessary for

[defendant] to be present in the courtroom when the trial court enters a new judgment correctly reflecting what

occurred during his trial and sentencing

. If the defendant is not returned for resentencing, the court has authority only

to enter the sentence as orally pronounced.”) ( internal quotations and citations omitted).1

STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SD36093

) Filed: October 6, 2020

DAVID RODNEY SCHACHTNER

, )

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

Honorable Gayle L. Crane

, Judge

CONCURRING OPINION

I concur in the principal opinion; however, I write separately to focus on one issue of

concern i n Point IV. The court allowed the State to present propensity evidence from

Schachtner’s sister that twenty

- two years prior to the trial

, when Schachtner was approximately

thirteen years old, he engaged in what was called sexual ac tivity with his ten

- year

- old sister. T he

constitutional amendment allowing propensity evidence provides:

Notwithstanding the provisions of sections 17 and 18(a) of this article to the

contrary, in prosecutions for crimes of a sexual nature involving a victim under

eighteen years of age, relevant evidence of prior criminal acts, whether charged or

uncharged, i s admissible for the purpose of corroborating the victim’s testimony or2

demonstrating the defendant’s propensity to commit the crime with which he or she

is presently charged. The court may exclude relevant evidence of prior criminal acts

if the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice.

State v. Downum

, 598 S.W.3d 189, 199

- 200 (Mo.App. S.D. 2020) (citing MO CONST. art. I,

§ 18(c))

.

Specifically, then, the constitutional amendment allow s evi d ence of prio r criminal act s

. I

am troubled that th e propensity evidence admitted in this trial dealt with the behavior of

Schachtner as a child

, thus necessarily determining the behavior of the thirteen

- year

- old as a

criminal act

. I t is a slippery slope to interpret the constitutional amendment

, which is contrary to

the general proposition that the defendant is to be tried for the crime he is charged with, by

includ ing activit ies done by children. I believe it should give us pause i n the judicial system

when we allow evidence of the behavior of children to be used to convict them of behavior as an

adult. There is no context provided to the trial court or the jury to explain how children ’ s

behavior is or is not an indicator of later criminal behavior. It has been clear in cases involving

propensity evidence that the State finds the propensity evidence to be critical and persuasive

because it is often the first evidence heard by the jury. Such was the case here. I concur,

however, b ecause there was no prejudice to Schachtner in that he admitted to the very activity

that he was charged and convicted of. In a different case, where there was no admission by the

defendant, I would not be convinced that the propensity evidence of a child should have been

admitted.

NANCY STEFFEN RAHMEYER, J.

– CONCURRING OPINION AUTHOR