The opinion
In the Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
Respondent, ) WD81873
v. )
)
ROBERT L. BROWN, ) FILED: March 3, 2020
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JOHNSON COUNTY
THE HONORABLE WILLIAM B. COLLINS, JUDGE
BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE,
ALOK AHUJA AND ANTHONY REX GABBERT, JUDGES
Robert Lee Brown appeals from his convictions for nine counts of first-degree
statutory sodomy and two counts of victim tampering. He contends the circuit court
plainly erred in instructing the jury on two of the first-degree statutory sodomy counts
because the verdict directors violated his right to a unanimous verdict. Brown also
argues the court plainly erred in allowing propensity evidence. For reasons explained
herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The evidence, in the light most favorable to the verdicts, was that A.E., who was
born in July 2006, and K.E., who was born in September 2008, lived with their mother
(“Mother”) and Brown, who was their stepfather. A.E. lived with Mother and Brown from
March 2017 through April 2017, while K.E. lived with Mother and Brown from
September 2016 through April 2017.
A.E. and K.E. were removed from the home in April 2017 after a neighbor
reported that the girls were being physically abused and neglected by Mother and
Brown.1 After the girls were placed in foster care, they disclosed to their foster mother
that Brown had sexually abused them. Specifically, A.E. told her foster mother that
Brown had tried to “put his private inside of her.” She described an incident during
which Mother had given her four or five ten-milligram melatonin pills, she fell asleep,
and when she woke up, Brown was “trying to put it in her bottom.” K.E. told her foster
mother that Brown would “put lotion on her butt and put his thing in there.” K.E. said
that, when she would cry or scream, he would put his hand over her mouth and slam
her down on the ground until she quit screaming. K.E. also disclosed that Brown “put it
in her mouth” in the garage and, after he ejaculated, he threw some towels at her and
told her to clean it up. Additionally, K.E. told her foster mother that he molested her in
his work truck. K.E. said that Brown told her that if she ever told anyone, she would be
sent to a girls’ home and he would go to prison. Brown also told her that, when he got
out of prison, he would find her and shoot her in the face with a shotgun.
After the girls disclosed the abuse to their foster mother, they spoke to Rebecca
Baynum, a Children’s Division investigator. A.E. told Baynum that Brown had put his
“bad spot inside of her,” and she pointed to her vaginal area. K.E. also told Baynum
that Brown had put his “bad spot” or “private” in her “bad spot,” and she pointed to her
1In a separate case, the girls’ mother pled guilty to child abuse, while Brown was found guilty of child
abuse, neglect, and endangering the welfare of a child.
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vaginal area. Baynum referred both girls to Mari Asbury, a Child Safe forensic
interviewer.
A.E. told Asbury that, when she was in her bedroom, Brown put his “bad spot” in
her butt and put his finger in her “bad spot.” She also said that Brown pulled down her
pants, put his “bad spot” in her “bad spot,” and asked her how it felt. A.E. pushed him
off of her and tried to leave to tell Mother about what Brown had done. Brown
prevented her from leaving, however, and threatened to put gasoline in her water and
kill her if she told anyone. Additionally, A.E. told Asbury that, while she and Brown were
sitting on the couch, he took her hand and tried to make her touch his “bad spot.”
Asbury also interviewed K.E. K.E. told Asbury that Brown put his “bad spot” in
her butt several times. She said that the first time it happened, on September 20, 2016,
she was asleep in her bed when Brown came into her room. Mother was not home at
the time, and K.E. said that he did this to her only when Mother was not home. K.E.
said that Brown pulled down her pants and put his “thing” in her “butt.” K.E. said that it
hurt and that she told Brown to stop, but he put his hand over her mouth and told her to
be quiet. K.E. said that Brown “did it” until he “cummed” and then he took “it” out of her
“butt,” put it in her mouth, “shoved it right down [her] throat, and “cummed” in her mouth.
She said that the “cum” was white, gooey, and tasted “disgusting,” and she “puked.”
She later told Asbury that Brown “cummed” only in her mouth that time. K.E. said that,
when Mother got home, she wanted to tell Mother what Brown had done, but Brown told
her that, after he got out of prison, he would kill her with a shotgun. K.E. said that she
had to take a shower to clean up because Brown had “cummed” in her “butt,” and she
saw blood on her bottom before she got into the shower. K.E. told Asbury that Brown
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came back later that same night, sat down on her bed, woke her up, and did the same
thing, but this time, he “cummed” in her “butt” and not in her mouth.
K.E. also disclosed to Asbury that, two weeks later, Brown put his “bad spot” in
her bottom in the garage after pushing her onto van seats that had been taken out of
the van and were on the garage floor. She said she could feel it in her stomach and
that it hurt “really bad.” K.E. said that Brown “cummed all over the place” on the seats,
her “butt,” and her legs, and told her to clean it up. K.E. further told Asbury that, once,
when she was lying down in defendant’s bedroom, Brown put his “wiener” in her “butt,”
“cummed” a little bit in her “butt,” and “put the rest of his cum” in her mouth. K.E. said
she ran to the bathroom and “puked it out.” On other occasion, Brown put his finger in
her “butt” in her bedroom. Additionally, K.E. told Asbury that Brown licked the inside her
“private” once when she was sleeping in A.E.’s bedroom, which she said “hurt really
bad.”
The State charged Brown with nine counts of first-degree statutory sodomy. The
first seven counts of first-degree statutory sodomy alleged that Brown had deviate
sexual intercourse with K.E., a child who was then less than 14 years old, between
September 1, 2016, and April 14, 2017. Specifically, Count I alleged that Brown put his
penis in K.E.’s anus while in K.E.’s bedroom; Count II alleged that Brown put his penis
in K.E.’s anus in his bedroom; Count III alleged that Brown put his penis in K.E.’s mouth
while in K.E.’s bedroom; Count IV alleged that Brown put his penis in K.E.’s mouth in his
bedroom; Count V alleged that Brown put his penis in K.E.’s anus while in the garage;
Count VI alleged that Brown put his penis in K.E.’s anus in the bedroom; and Count VII
alleged that Brown put his tongue or mouth on K.E.’s genitalia in K.E.’s sister’s
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bedroom. The last two counts of first-degree statutory sodomy alleged that Brown had
deviate sexual intercourse with A.E., a child who was then less than twelve years old,
between March 1, 2017, and April 14, 2017. Count VIII alleged that Brown put his penis
in A.E.’s anus, and Count IX alleged that Brown attempted to cause A.E.’s hand to be
on his penis in the living room. The State also charged Brown with two counts of victim
tampering by purposely preventing or dissuading K.E. and A.E. from reporting the first-
degree statutory sodomy.
A jury trial was held in March 2018. Both A.E. and K.E. testified. A.E. testified
that Brown had touched her “boobs,” “butt,” and vagina with his hands and his penis.
She said that, when she was ten years old, Brown pulled down her pants and his pants
and began “humping” her by moving back and forth. She testified that Brown put his
“body parts” in her vagina and “butt.” On one occasion when she and Brown were on
the couch, he put her hand on his penis. A.E. testified that Brown threatened to put gas
in her water and kill her if she told anyone.
K.E. testified that Brown “humped” her in her “bad spot” more than one time.
Specifically, she said that, the first time, when Brown came into her bedroom, she was
watching a movie, playing on her DSR, or sleeping. K.E. later testified that she could
not remember what she was doing. She testified that, when Brown came in, he pulled
down her pants, put his “bad spot” in her “bum” and was “humping” her. K.E. testified
that he covered her mouth so she would not scream out loud, and he told her that he
would “shoot [her] upside the head with the shotgun” if she told anyone. She said that
he did the same thing at other times in A.E.’s room and in Brown’s bedroom when
Mother was gone. K.E. further testified that “cum” came out of Brown’s “bad spot”
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when he did this to her, and she described it as being white and gooey. K.E. said that
Brown would put the “cum” in either her mouth or her bottom. She said that, when he
put it in her mouth, she went to the bathroom and spit it out. K.E. also testified that
Brown put his tongue in her “front bad spot” and told her to touch his “front bad spot.”
Additionally, she testified that Brown “humped” her in the “bum” in the garage when she
was bent over on a van seat. When asked if anything came out of Brown’s “bad spot” at
that time, K.E. said that it did not. K.E. testified that this occurred in the garage only one
time. On cross-examination, K.E. testified that she knew the word “cum” because
Brown told her what it was and that she had never heard that word before he told her
about it.
In addition to A.E.’s and K.E.’s testimony, the State presented testimony from the
girls’ foster mother, a nurse practitioner to whom K.E. disclosed the sexual abuse during
an interview and a police officer who was present during that interview, a Children’s
Division employee to whom K.E. and A.E. disclosed the physical abuse inflicted by their
mother and Brown and to whom K.E. disclosed Brown’s sexual abuse, Baynum from the
Children’s Division, and Asbury from Child Safe. The State also presented testimony
from a child abuse pediatrician from Children’s Mercy who examined both girls. The
pediatrician found that the girls’ physical examinations were normal, and she explained
that 90 to 95 percent of children who disclose sexual abuse will have normal physical
examinations afterwards because the skin in the genital area and rectum is stretchy and
heals within days. Based upon A.E.’s and K.E.’s disclosures, the pediatrician
diagnosed both A.E. and K.E. with child sexual abuse.
6
Additionally, the State presented propensity evidence from one woman who
testified that Brown had forcibly raped her in Kansas in 1995 and another woman who
testified that Brown had forcibly raped her in Kansas in 1999. The women did not report
the alleged forcible rapes until sometime between 2014 and 2018, and Brown was
never charged.
Lastly, the State offered the testimony of Lieutenant Andy Gobber of the Johnson
County, Missouri Sheriff’s Office, who testified about his investigation of the physical
and sexual abuse cases of A.E. and K.E. and also about recordings of phone calls
Brown made to his mother and to Mother while he was in jail awaiting trial. In the phone
calls to his mother, Brown instructed his mother on what to say if she were called to
testify, and he instructed her to talk to other witnesses to tell them what to say in their
testimony. In one phone call with Mother, Brown asked her if she knew where her mom
was. Mother responded, “All I know is in Kansas.” Brown then said, “The one that we
visit every now and again when we go up there.” When Mother replied, “Yeah,” Brown
said, “Push comes to shove, there’s going to be two more right there to visit,
guaranteed, if you get my fucking drift. I ain’t putting up with this shit, do you hear me.”
Mother’s mother is deceased and is buried in a cemetery in Kansas. Gobber
interpreted Brown’s comment as a threat against A.E. and K.E.
The jury convicted Brown on all counts. The court sentenced him to fifteen years
in prison on each of the nine counts of first-degree statutory sodomy and seven years
for each count of victim tampering. All sentences are to be served consecutively.
Brown appeals.
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ANALYSIS
In Points I and II, Brown contends the circuit court erred in submitting the verdict
directors for two of the first-degree statutory sodomy counts involving K.E. Specifically,
Count I, which alleged that Brown put his penis in K.E.’s anus in her bedroom, and
Count V, which alleged that Brown put his penis in K.E.’s anus in the garage. He
argues that there was evidence of multiple acts pertaining to each count, but the verdict
directors failed to specify a particular incident. He asserts that, by failing to specify a
particular incident, the instructions did not ensure a unanimous jury verdict. Brown
concedes that he failed to object to the instructions at trial. Therefore, review is for plain
error only.
Pursuant to Rule 30.20, this court has discretion to review “plain errors affecting
substantial rights . . . when the court finds that manifest injustice or miscarriage of
justice has resulted therefrom.” “For instructional error to constitute plain error, the
defendant must demonstrate the trial court so misdirected or failed to instruct the jury
that the error affected the jury’s verdict.” State v. Celis-Garcia, 344 S.W.3d 150, 154
(Mo. banc 2011) (quotation marks and citations omitted).
Article I, section 22(a) of the Missouri Constitution protects the right to a
unanimous jury verdict. Id. at 155. “For a jury verdict to be unanimous, ‘the jurors
[must] be in substantial agreement as to the defendant’s acts, as a preliminary step to
determining guilt.’” Id. (citations omitted). The issue of jury unanimity may be
implicated in “multiple acts” cases. Id. “A multiple acts case arises when there is
evidence of multiple, distinct criminal acts, each of which could serve as the basis for a
8
criminal charge, but the defendant is charged with those acts in a single count.” Id. at
155-56.
In Celis-Garcia, the Court held that a defendant’s right to a unanimous jury
verdict was violated when the verdict directors failed to separately identify specific
instances of sodomy. Id. at 159. The victims in the case identified “at least seven
separate acts of statutory sodomy that occurred at different times (some more than
three days apart) and in different locations” within the house in which they lived with
their mother, who was the defendant, and her boyfriend. Id. at 156. The Court found
that, “[d]espite evidence of multiple, separate incidents of statutory sodomy, the verdict
directors failed to differentiate between the various acts in a way that ensured the jury
unanimously convicted [the defendant] of the same act or acts.” Id. Instead, the verdict
directors (one for each victim) allowed the jury to find the defendant guilty of first-degree
statutory sodomy if the jurors believed “‘that between [specified dates] . . . the defendant
or [her boyfriend] placed her or his hand on [the victim’s] genitals. . . .’” Id. The Court
explained that the verdict directors were erroneous because they allowed a finding of
guilt when jurors may not have unanimously agreed on the same specific act of
sodomy:
This broad language allowed each individual juror to determine which
incident he or she would consider in finding [the defendant] guilty of
statutory sodomy. Under the instructions, the jurors could convict [the
defendant] if they found that she engaged or assisted in hand-to-genital
contact with the children during an incident in her bedroom, or on the
enclosed porch, or in the shed, or in the bathroom.
Id.
Applying the principles of Celis-Garcia to the instructions in this case, we find
that, contrary to Brown’s assertion, Count V did not involve multiple acts. “To establish
9
a multiple acts case, there must be evidence of multiple, distinct criminal acts” charged
in a single count. State v. Drake, 514 S.W.3d 633, 642 (Mo. App. 2017). Count V
charged Brown with first-degree statutory sodomy for putting his penis in K.E.’s anus
while in the garage. The verdict director for Count V was Instruction No. 11, and it
stated, in relevant part:
As to Count V, if you find and believe from the evidence beyond a
reasonable doubt:
First, that on or between September 1, 2016 and April 14, 2017, in
the County of Johnson, State of Missouri, the defendant knowingly placed
his penis in K.E.’s (DOB: 9/15/08) anus while in the garage, and
Second, that such conduct constituted deviate sexual intercourse,
and
Third, that at the time K.E. was a child less than twelve years old,
then you will find the defendant guilty under Count V of statutory sodomy
in the first degree under this instruction.
At trial, K.E. testified that Brown “humped” her in the “bum” in the garage when
she was bent over on a van seat. When asked if anything came out of Brown’s “bad
spot” at that time, K.E. said that it did not. K.E. testified that this occurred in the garage
only one time. In her Child Safe interview, K.E. told Asbury that Brown put his “bad
spot” in her bottom in the garage after pushing her over onto van seats that had been
taken out of the van and were on the garage floor. She said that Brown “cummed all
over the place” on the seats, her “butt,” and her legs, and he told her to clean it up.
Brown contends that the evidence shows that two distinct acts of penis-to-anus
sodomy occurred in the garage: one act during which he did not ejaculate and another
act during which he ejaculated on the van seat and on K.E.’s bottom and legs. We
disagree. In both her trial testimony and in her Child Safe interview, K.E. described only
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one act of penis-to-anus sodomy as having taken place in the garage. To the extent
that her descriptions of that one act were inconsistent on the issue of whether Brown
ejaculated or not, the inconsistency went to her credibility. See State v. Rycraw, 507
S.W.3d 47, 64-65 (Mo. App. 2016). The inconsistency in this detail “does not suggest
that the State introduced evidence as [to] two ‘distinct criminal acts’” of penis-to-anus
contact, particularly in light of K.E.’s testimony at trial that this act occurred only one
time in the garage. Id. The evidence was – at best – ambiguous as to whether multiple
acts occurred or, instead, whether K.E. had simply described a single act in somewhat
different ways at different times. In these circumstances, and particularly where the
defendant has not made a contemporaneous objection and requested specific relief, a
circuit court runs a real risk of confusing jurors if it instructs them that multiple acts have
in fact occurred, and that they must choose among those multiple acts in order to
convict the defendant. Brown’s right to a unanimous verdict on Count V was not
violated.
Regarding Count I, first-degree statutory sodomy based upon Brown’s placing his
penis in K.E.’s anus in her bedroom, the verdict director for this offense was Instruction
No. 7. It stated, in relevant part:
As to Count I, if you find and believe from the evidence beyond a
reasonable doubt:
First, that on or between September 1, 2016 and April 14, 2017, in
the County of Johnson, State of Missouri, the defendant knowingly placed
his penis in K.E.’s (DOB: 9/15/08) anus while in K.E.’s bedroom, and
Second, that such conduct constituted deviate sexual intercourse,
and
Third, that at the time K.E. was a child less than twelve years old,
11
then you will find the defendant guilty under Count I of statutory sodomy in
the first degree under this instruction.
Brown first argues that K.E.’s trial testimony about what she was doing the first
time he committed anal sodomy on her in her bedroom actually described two separate
acts of anal sodomy. Specifically, he asserts that she testified to one act as having
occurred when she was watching a movie and another act as having occurred when
she was playing on her DSR. We disagree. When asked what she was doing when
Brown came to her bedroom that first time, K.E. testified that she was watching a movie,
playing on her DSR, or sleeping, but she could not remember. K.E.’s testimony that she
could not remember which of those things she was doing the first time Brown
sodomized her in her bedroom cannot be read as describing distinct, differentiated
incidents of anal sodomy that occurred (1) while she was watching a movie, (2) while
she was playing on her DSR, and (3) while she was sleeping. Instead, her inability to
remember what she was doing the first time he anally sodomized her went only to her
credibility and did not constitute multiple acts evidence. See Rycraw, 507 S.W.3d at 64-
65.
Brown next argues that the State presented evidence of two separate acts of
anal sodomy that occurred in K.E.’s bedroom. Specifically, he contends that K.E.
described one incident of anal sodomy where he ejaculated in her mouth and a second
incident of anal sodomy where he ejaculated in her anus.
At trial, K.E. testified about only one specific incident of anal sodomy on the night
that he first anally sodomized her in her bedroom, and she did not testify about where
he ejaculated during that incident. In her Child Safe interview, K.E. told Asbury that, on
the night that Brown first anally sodomized her in her bedroom, he “did it” until he
12
“cummed,” and then he took “it” out of her “butt,” put it in her mouth, and “cummed” in
her mouth. She later told Asbury that Brown “cummed” only in her mouth that time.
K.E. said that Brown came back to her bedroom later that night, woke her up, and did
the same thing, but his time, he “cummed” in her “butt” and not her mouth. K.E. told
Asbury that, in between the incident during which he ejaculated in her mouth and the
incident during which he ejaculated in her anus, Mother came home, and K.E. took a
shower and went to bed. She also told Asbury, though, that one of the reasons she had
to take a shower before she went to bed was because she had to clean herself up after
Brown had “cummed” in her “butt.” Moreover, K.E. twice told Asbury that Brown
sexually abused her only when Mother was not home, which would tend to indicate that
the incident of anal sodomy during which he ejaculated in her anus occurred at or near
the same time during which he ejaculated in her mouth, before Mother got home.
K.E.’s trial testimony and her Child Safe interview about the first time that Brown
anally sodomized her in her bedroom could be interpreted as describing one incident
during which he ejaculated in both her anus and her mouth. Indeed, she testified at trial
to only a single incident of anal sodomy on that night, and her statements concerning
the reason for and timing of her shower that night and where Mother was suggested
that it was all one incident. Thus, to the extent that K.E.’s characterization or
description of the incident during her Child Safe interview was inconsistent, the
inconsistency would go to her credibility and would not constitute multiple acts
evidence. See id. Again, in these circumstances and without a contemporaneous
objection and request for specific relief by the defendant, the circuit court runs the risk of
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confusing the jury if it instructs them that multiple acts have in fact occurred, and that
they must choose among those multiple acts in order to convict the defendant.
Even if the evidence could be interpreted as describing two acts of anal sodomy
that occurred within hours of each other in K.E.’s bedroom that first night, however,
those acts fall within a hypothetical recognized in Celis-Garcia. While the evidence for
each victim in Celis-Garcia showed that multiple acts of sodomy occurred at different,
specified locations over an extended time period, the Court recognized that a case in
which the victim reported repeated, identical acts of sexual abuse occurring in the same
location over a short time span might prompt a different result:
The state argues that requiring the state to differentiate between multiple
acts would make it impossible to prosecute sexual abuse cases involving
repeated, identical sexual acts committed at the same location and during
a short time span because the victim would be unable to distinguish
sufficiently among the acts. The case hypothesized by the state was not
the one presented here because both [victims] provided details of multiple
sexual acts that were committed at different times and in different
locations.
Celis-Garcia, 344 S.W.3d at 157 n.8 (emphasis added). Like the acts referenced in the
hypothetical, the two acts of anal sodomy that occurred within hours of each other in
K.E.’s bedroom on that first night were repeated, identical sexual acts committed at the
same location during a very short time span. K.E.’s testimony and her Child Safe
interview indicate that she was unable to sufficiently distinguish between the two acts.
Consequently, the jury had no evidentiary basis for distinguishing between them.
Brown’s right to a unanimous verdict on Count I was not violated. Points I and II are
denied.
In Point III, Brown contends the circuit court erred in allowing the State to
introduce evidence of his sexual misconduct against two prior victims, S.M. and A.S.
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He argues that this propensity evidence was improperly admitted because it was
substantially more prejudicial than probative.
Prior to trial, the State filed a notice of its intent to present propensity evidence
pursuant to article I, section 18(c) of the Missouri Constitution. Specifically, the State
alleged that it intended to offer evidence that Brown forcibly raped A.S. when she was
approximately twelve years old and raped S.M. when she was approximately ten years
old. In response, Brown filed a motion in limine to exclude this evidence.
The court held a pre-trial evidentiary hearing on the State’s proposed propensity
evidence. During the hearing, the State offered the testimony of Terry Mills, a detective
with the Linn County, Kansas Sheriff’s Office. Mills testified that he had investigated
Brown on two charges of rape. Mills testified that A.S., born in October 1983, had
reported to him that, in 1995, when she was twelve years old, Brown came over to the
house to check on her and her brother because her parents were working at that time.
A.S. told Mills that, after her brother went to bed, Brown came into her room, touched
her, felt her leg, and kissed her before he held her hands down and forcibly raped her.
Brown threatened A.S. and her family if she ever told anyone. A.S. told Mills that, after
that incident, she withdrew and “didn’t want to really go out or go anywhere.” Mills also
testified that S.M., born in November 1989, had reported to him that, in 1999, when she
was ten years old, she was babysitting Brown’s children when Brown started touching
her inappropriately, telling her that he loved her, and, eventually, forcibly raping her.
Brown continued to rape her multiple times over the course of a year. Brown
threatened S.M. not to tell anyone. On cross-examination, Mills testified that A.S.’s and
15
S.M.’s reports to him about Brown were made between 2014 and 2018 and that no
criminal charges in connection with either case were ever filed against Brown.
The State also offered the testimony of Lieutenant Gobber during the pre-trial
evidentiary hearing. Gobber testified that, as part of his investigation of the charges in
the present case, he was contacted by S.M. S.M. told Gobber that Brown was one of
her parents’ friends and that, when she was ten years old and was babysitting Brown’s
kids, he raped her. S.M. told Gobber that Brown also kissed her, fondled her breasts,
touched her butt, and touched her vagina. S.M. said that it happened more than one
time and in multiple locations.
After hearing arguments from both parties, the court found that the State’s
propensity evidence was probative and ruled that it would allow the testimony of the two
alleged victims in the Linn County cases. The court told the parties that it “should hear
some of [A.S.’s and S.M.’s] testimony outside of the hearing of the jury . . . prior to them
coming in and testifying at trial with regard to some of those issues.” However, the
record does not indicate that the court heard A.S.’s or S.M.’s testimony before they
testified in front of the jury. Brown did not object to their testimony.
A.S. testified that, when she was twelve or thirteen years old in approximately
1995, Brown, who was a family member on her father’s side, came to her house around
9:00 p.m. and told her and her brother that their parents had sent him to check on them.
After A.S.’s brother went to bed, Brown came into her room, told her how pretty she
was, rubbed her legs and arms, and kissed her. She testified that she kept telling him
no, but he pushed her back on the bed and “stuck his penis inside [her].” A.S. further
testified:
16
The more I was trying to fight, the more aggressive he got, locked his legs
with mine, pushed my arms down and the more I was fighting, the more
he kept shoving inside me, the more he kept holding me down. I couldn’t
move. My brain just shut off, I was just frozen, I was scared, I was
confused, I didn’t know what was going on.
A.S. testified that she did not tell anyone at the time because Brown threatened to hurt
her. When the State asked A.S. whether her life changed after what happened with
Brown, A.S. testified that she “pushed everybody out of [her] life,” “had attitude
problems,” and dropped out of school in the ninth grade. A.S. further explained that her
life did not improve until fourteen years ago when she met her husband, but, even then,
she was depressed, angry, and unable to “perform with him.” A.S. testified that she
reported the incident to the police in July 2015, but Brown was never arrested or
charged.
S.M. testified that, in the 1990s, Brown spent a lot of time with her family
because he was one of her father’s friends. In approximately 1999, when she was ten
years old, Brown started telling her “nice things like [she] was beautiful and stuff and
then it just kind of escalated from there to touching and then eventually it went to rape.”
S.M. testified that she repeatedly told him to stop, but he touched her inappropriately
and raped her more than one time over the course of two years in multiple locations.
Brown told her that he was her boyfriend, and he would buy her things. S.M. testified
that she did not tell anyone what Brown was doing because she was afraid and
confused, and she explained why:
At first I was afraid. I was confused and then once he told me that
there was a girl that he – I don’t know what happened – there was
someone else before me and she had told something and he said that she
had to have tests done on her where they would go inside of you and it
hurt really bad, and so that scared me. I didn’t want that to happen to me.
17
Brown also told her that she was supposed to marry him and that, if she told anyone
about the alleged abuse, she would be in just as much trouble as he would be.
When S.M. was twenty years old, she told her sister about the alleged abuse.
When S.M. was twenty-five years old, S.M.’s sister told their parents, and their parents
suggested that S.M. report it to the police. S.M. said the reason she did not tell her
parents sooner was because she was afraid that her father would hurt Brown and then
she “wouldn’t have [her] dad anymore.” S.M. testified that Brown was never arrested or
charged for any offenses involving her.
When the court read its instructions to the jury after the close of the evidence, it
gave the following limiting instruction on the propensity evidence:
If you find and believe from the evidence that the defendant was
involved in offenses other than the one for which he is now on trial, you
may consider that evidence on the issue of propensity to commit the
charged offense of statutory sodomy in the first degree. You may not
consider such evidence for any other purpose.
Both the State and Brown referred to the propensity evidence in closing
argument. In his motion for new trial, Brown asserted that the admission of the
propensity evidence was logically and legally irrelevant and did not constitute true
propensity evidence.
“To preserve an issue of evidentiary error, an objection must be made at a time
contemporaneous to the challenged evidence.” State v. Wright, 551 S.W.3d 608, 621
(Mo. App. 2018). “A ‘motion in limine, in and of itself, preserves nothing for appeal.’”
State v. Blurton, 484 S.W.3d 758, 776 (Mo. banc 2016) (citation omitted). Because
Brown failed to preserve his challenge to the admissibility of the propensity evidence by
not objecting when it was introduced at trial, we review its admission for plain error.
18
Under plain error review, we must first determine “whether there is error that is
‘evident, obvious, and clear.’” State v. Deweese, 540 S.W.3d 490, 493 (Mo. App. 2018)
(citation omitted). If we find evident, obvious, and clear error, we then consider
“whether a manifest injustice or miscarriage of justice has occurred.” Id.
The propensity evidence was admitted under article I, section 18(c) of the
Missouri Constitution. This provision, which the voters of Missouri added to the
Constitution in 2014, states:
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, is admissible for the purpose of
corroborating the victim’s testimony or 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.
MO. CONST. art. I, § 18(c).
Our Supreme Court discussed several factors to consider in analyzing whether
propensity evidence is admissible under this constitutional amendment in State v.
Williams, 548 S.W.3d 275 (Mo. banc 2018). Before undertaking its analysis in Williams,
the Court noted that the admissibility of propensity evidence is very case specific,
explaining, “The determination of how much and what kind of probative value particular
propensity evidence may have, the nature and extent of the danger of unfair prejudice
presented by that evidence, and whether the former is substantially outweighed by the
latter, are intensely case-specific questions.” Id. at 288. The Court further explained
that “[t]he relevant factors to be considered in deciding these questions will vary from
case to case, as will the weight to be afforded any one factor in particular.” Id. Thus,
19
the Court cautioned that “the factors set forth in this opinion, and the weight given to
those factors, are merely illustrative of the legal relevance analysis article I, section
18(c) requires.” Id.
The first step in analyzing the admissibility of propensity evidence is to examine
its logical relevance or probative value. In doing so, courts consider whether the
evidence is “sufficient for the jury to conclude the defendant actually committed the prior
criminal act.” Id. In Williams, the defendant had pled guilty to the prior offenses, which
“remov[ed] any doubt as to whether he had committed the criminal act.” Id. at 289.
In this case, Brown was never charged with or convicted of any offenses against
A.S. or S.M. Article I, section 18(c), however, clearly allows for the admission of
evidence of uncharged prior criminal acts. A.S.’s and S.M.’s testimony about the acts of
sexual abuse that Brown committed against them was specific, unequivocal, and
sufficient for the jury to conclude that he actually committed the acts alleged. This
factor indicates that the propensity evidence had probative value.
In examining probative value, courts also consider whether “the evidence of the
prior criminal act . . . tend[s] to show the defendant actually had a propensity to commit
the charged crime at the time it is alleged to have occurred.” Id. In applying this factor,
we take into account the “the similarity between the prior criminal act and the charged
crime” and the “amount of time between the two.” Id. “[A]n inference of propensity
might be proper notwithstanding a significant time lapse between the prior crime and the
charged crime if the two crimes are highly similar.” Id. “On the other hand, an inference
of propensity might not be proper if the prior crime and the charged crime are only
somewhat similar unless the two occurred over a short span of time.” Id.
20
Here, while there was a significant time lapse of seventeen years and twenty-one
years between the prior uncharged criminal acts and the charged crimes, the prior
uncharged criminal acts and charged crimes were very similar. The prior uncharged
criminal acts involved girls between the ages of ten and thirteen years old, one who was
related to Brown and the other who was a close family friend, and Brown threatened to
hurt one of them, A.S., if she told anyone about the abuse. The victims in the charged
crimes were eight and ten years old, were Brown’s stepdaughters, and reported that
Brown inflicted similar sexual abuse upon them and threatened to hurt them if they told
anyone about the abuse. This factor indicates that the propensity evidence had
probative value.
Additionally, courts look to “the prosecution’s need for that evidence to prove its
case” in deciding whether the proposed propensity evidence has probative value. Id.
“Prior acts evidence need not be absolutely necessary to the prosecution’s case in
order to be introduced; it must simply be helpful or practically necessary.” Id. (quoting
United States v. LeMay, 260 F.3d 1018, 1029 (9th Cir. 2001)). The probative value of
propensity evidence is enhanced where the only eyewitness to the sexual abuse is the
victim, and the defense attacks the victim’s credibility. Id. at 290.
The State’s need for the propensity evidence in this case was substantial
because the only eyewitnesses to Brown’s sexual abuse were A.E. and K.E. See id.
The other witnesses only indirectly corroborated their testimony. See id. Moreover,
Brown’s defense at trial was that A.E. and K.E. were lying and fabricated the
allegations. Thus, here, as in Williams, “[t]he unique evidentiary challenges presented
21
by this type of case,” along with the defense’s attack on the victims’ credibility,
“enhanced the probative value” of Brown’s prior uncharged criminal acts evidence. Id.
Having found that the propensity evidence in this case had probative value, the
second step in analyzing the admissibility of propensity evidence is to examine whether
the evidence was unfairly prejudicial. Id. On this issue, courts consider “whether the
jury knows or can fairly infer the defendant was punished for his past criminal acts.” Id.
“If the jury is allowed to infer (or, worse, speculate) the defendant escaped punishment
in the past, it may be inclined to convict merely to punish the defendant for past criminal
acts rather than for the crime charged.” Id.
In this case, the jury clearly knew that Brown was not punished for his prior
uncharged criminal acts against A.S. and S.M. While it is true that Brown used the fact
that he was never charged or convicted to argue that the propensity witnesses were not
credible, the evidence showed that the reason Brown was never charged or convicted
was because A.S. and S.M. waited a substantial number of years, until they were
adults, before they disclosed the abuse and reported it to police. A.S. testified that the
reason she did not tell anyone about the abuse at the time it happened was because
Brown threatened to hurt her. S.M. testified that she told no one about the abuse at the
time it happened because she was afraid, confused, and scared, as Brown had told her
that, if she told, she would have to have “tests done . . . where they would go inside of
you and it hurt really bad,” and she did not want that to happen to her. S.M. also
testified that another reason she did not tell her parents earlier was because she was
afraid that her dad would “hurt [Brown] and then [she] wouldn’t have [her] dad
anymore.” Based upon this evidence, the jury could have inferred that Brown scared or
22
manipulated A.S. and S.M. into staying silent long enough for him to escape
punishment. Under these circumstances, there was an increased risk that the jury
might have been inclined to convict Brown to punish him for his past uncharged criminal
acts rather than for the crimes charged.
Unfair prejudice may also “be a function of the manner in which the state proves
the prior criminal act at trial.” Id. In Williams, the Court explained that, if the circuit court
had allowed the State to prove the prior crime by calling the former victim to describe
the abuse, “[s]uch testimony, of course, would have increased the danger of unfair
prejudice.” Id. Because the defense and the State in Williams “agreed to prove
Williams’s prior criminal act by way of a short, dispassionate stipulation,” the Court
found that this danger was “minimized.” Id.
Here, the court allowed the State to prove the prior uncharged criminal acts by
calling A.S. and S.M. to testify about the sexual abuse Brown inflicted upon them.
Though brief, A.S.’s testimony about the forcible rape was graphic. Also, A.S. testified
in detail about how Brown’s forcibly raping her when she was twelve or thirteen years
old negatively impacted her life. She told the jury that, at the time, it caused her to push
“everybody” out of her life, have attitude problems, and drop out of school; years later, it
caused her to be depressed, angry, and unable to “perform” with her husband. 2 S.M.’s
testimony about Brown’s inappropriately touching her and raping her over the course of
two years starting when she was ten years old was less graphic than A.S.’s testimony,
but she did detail how Brown groomed her before and while he was abusing her. S.M.
2 Brown argues that the danger of unfair prejudice was increased because A.S. cried during her
testimony. Although defense counsel argued in closing that A.S. was “crying uncontrollably on direct
examination,” defense counsel did not make a record during or after A.S.’s testimony about her alleged
demeanor while she was testifying.
23
also referred to a possible third prior victim. Specifically, S.M. testified that, when
Brown was convincing her not to report the abuse, he told her that “there was someone
else before me and she had told something and he said that she had to have tests done
on her where they would go inside of you and it hurt really bad, and so that scared me.
I didn’t want that to happen to me.” Unlike the propensity evidence in Williams, the
propensity evidence in this case was graphic in part, overly detailed, and not
dispassionate. This increased the danger of unfair prejudice.
The next factor to consider in examining prejudice is “whether the evidence of
the defendant’s prior criminal act eclipses—or is overshadowed by—the evidence of the
charged crime.” Id. “Evidence the defendant previously sexually abused a young child
is highly prejudicial in the abstract, but there is far less danger of unfair prejudice from
such evidence in a prosecution for sexually molesting a young child than there would be
in a prosecution for a less heinous crime.” Id. In Williams, the evidence of Williams’s
prior criminal act, which was introduced by way of “a short, dispassionate stipulation,”
was “far less alarming than the evidence of the charged crimes,” which included graphic
testimony from the victim of the sex acts he forced her to perform and the threats he
made against her if she told anyone. Id. at 290-91.
In this case, the evidence of the uncharged prior crimes was disturbing, but the
evidence of the charged crimes was even more so. In their Child Safe interviews and
trial testimony, A.E. and, particularly, K.E., described in graphic detail the multiple acts
of anal, oral, and hand-to-genital sodomy that Brown performed on them. Additionally,
as in Williams, the jury also heard other evidence that put Brown in a bad light. Id. at
291. For example, the jury was informed that Brown had recently been convicted of
24
child abuse, neglect, and endangering the welfare of a child for beating A.E. and K.E.
and padlocking them in their bedrooms for hours. The jury was also informed that
Brown threatened to kill A.E. by putting gas in her water, threatened to kill K.E. by
shooting her in the face with a shotgun, and made a thinly-veiled threat against the girls’
lives during his recorded jailhouse phone conversation with Mother. While the
propensity evidence from A.S. and S.M. was graphic in part, overly detailed, and was
not dispassionate, we cannot say that it eclipsed or was more alarming than the
evidence of the charged crimes involving A.E. and K.E.
Lastly, in examining the prejudicial effect of propensity evidence, courts consider
the manner in which the State used the propensity evidence at trial. Id. “If the
prosecution spends an undue amount of time emphasizing the prior criminal act or
flagrantly invites the jury to convict the defendant because he is a ‘bad’ or ‘wicked’ man
rather than because he committed the crime charged, the danger of unfair prejudice
from that evidence quickly becomes untenable.” Id. If, however, “the prosecution
spends relatively little time on the issue of a defendant’s prior crimes and merely uses
the evidence for its proper purpose (namely, to suggest the defendant has a propensity
to commit the charged crime), the danger decreases and may—on balance—not be
unfair.” Id.
Brown argues that the way the State used the propensity evidence exacerbated
its prejudicial effect. Specifically, Brown asserts that the State “emphasized” propensity
during its opening statement and closing argument. During its opening statement, the
State advised the jury, “You will hear evidence about the defendant’s propensity to
commit these very same offenses. You will hear evidence of the defendant’s propensity
25
to commit sex offenses against other young girls.” We do not find that this emphasized
the propensity evidence.
As for the State’s references to the propensity evidence in its closing argument,
after discussing the evidence supporting the current charges, the State reminded the
jury about the propensity evidence:
Additionally, you heard from [A.S.] and [S.M.] about [Brown]’s
propensity to sexually abuse children, to sexually abuse girls between the
ages of 8 and 12. In Missouri, if you find and believe from the evidence
that the defendant was involved in offenses other than the ones for which
he is now on trial, being nine counts of statutory sodomy in the first
degree, you may consider the other offenses he has committed on the
issue of propensity to commit the statutory sodomy in the first degree.
You may not consider such evidence for any other purpose, and
there is an instruction on that. You look at his propensity and you heard it.
He has a propensity to sodomize children.
In this argument, the State basically paraphrased the limiting instruction on the
propensity evidence. This was a correct statement of the law, and we do not find that
the State unduly emphasized the propensity evidence in its initial closing argument.
Brown also referenced the propensity evidence in his closing argument. After he
argued that the victims’ testimony in the current case was not credible, he addressed
the propensity witnesses:
Then we have the issue of the propensity witnesses. [A.S.], who
was crying uncontrollably on direct examination, and as soon as I stepped
up to the podium, the tears magically shut off. Then we had [S.M.].
Here’s the thing though, folks, the State of Missouri did not accuse
or charge Robert Brown with any crimes related to [A.S.] or [S.M.]. That’s
smoke and mirrors by the State. Their case is so weak that they have to
bring in two people that say that Robert Brown sexually assaulted them 20
years ago to try to convince you 12 people that, well, if he did it to these
girls, he must have done it to these girls, too. Please remember, whatever
those girls said did not result in Robert Brown getting convicted, charged
with those crimes, convicted of those crimes, so how credible can they be
26
that they tell their stories to law enforcement in whatever jurisdiction that
this allegedly happened? No charges, no arrests, no convictions. Smoke
and mirrors, that’s all that is. All that is.
After Brown challenged A.S.’s and S.M.’s credibility in his closing by arguing that
the lack of charges or convictions for those alleged acts rendered their testimony
incredible, the State responded in rebuttal by noting that the State of Missouri could not
charge Brown for crimes committed in Kansas. This was proper rebuttal to Brown’s
attack on A.S.’s and S.M.’s credibility.
The State, however, then used the propensity evidence to refer to Brown five
times as a “pedophile,” arguing to the jury:
I have no power to charge him for what he did to [A.S.] and to [S.M.], or I
would have. But it goes to show a pedophile’s propensity to commit
crimes against children, and that is what he is and what he did.
I have done my job. I have shown you beyond a reasonable doubt
that he is a pedophile, that he sodomized these children, and he has a
propensity to do that.
....
And ladies and gentlemen, you also heard this pedophile talk about
these girls as if they mean nothing.
....
You heard beyond a reasonable I have proven that pedophile guilty of
nine counts of statutory sodomy in the first degree. And I have proven
that pedophile guilty of tampering, two counts, one for each victim. Go
back there and find him guilty.
(Emphasis added.)
There was no evidence at trial that Brown had ever been diagnosed as being a
pedophile; thus, the State’s characterization of him as a “pedophile” appeared to be
based upon the propensity evidence. The State’s repeated references to Brown as a
27
“pedophile,” and particularly the State’s urging the jury to find “that pedophile” guilty,
emphasized the propensity evidence and invited the jury to convict Brown because he is
a bad or wicked man, thereby increasing the danger of unfair prejudice in this case.
See id.
Weighing the probative value of the propensity evidence versus the danger of
unfair prejudice in this case, the probative value of the propensity evidence was high, as
A.S.’s and S.M.’s testimony about the prior uncharged criminal acts was unequivocal,
the prior uncharged criminal acts were similar to the charged crimes, and the State’s
need for the propensity evidence was substantial due to Brown’s attacks on A.E.’s and
K.E.’s credibility. The danger of unfair prejudice was also high, however. The jury knew
Brown had escaped punishment for his prior uncharged criminal acts and may have
been inclined to convict him merely to punish him for those acts. Moreover, A.S.’s and
S.M.’s testimony went beyond recounting the prior uncharged criminal acts. A.S.
graphically described the forcible rape and the many ways in which her life was
negatively impacted by it years later, while S.M. detailed how Brown groomed her, and
she referenced a third prior victim. The State then exacerbated the risk of unfair
prejudice by using the propensity evidence in closing argument to essentially invite the
jury to convict Brown because he is a “pedophile.” Under these circumstances, the
probative value of the propensity evidence was substantially outweighed by the danger
of unfair prejudice resulting from the inflammatory manner in which the State presented
the evidence at trial and used the evidence in its rebuttal closing argument. Its
admission was evident, obvious, and clear error.
28
Having found that the admission of the propensity evidence was plain error, we
must next determine whether a manifest injustice of miscarriage of justice has occurred.
A manifest injustice or miscarriage of justice does not result from the admission of
evidence “when the record demonstrates there was other overwhelming evidence of the
defendant’s guilt that he does not challenge or which was admissible.” State v.
Bowens, 550 S.W.3d 84, 96 (Mo. App. 2018).
In assessing whether a manifest injustice or miscarriage of justice has occurred,
we emphasize that the circuit court would have been entitled, in its discretion, to
introduce some evidence of Brown’s rapes of A.S. and S.M. as propensity evidence
under article I, section 18(c). The difficulty in this case is the other evidence that was
admitted, beyond the fact of the prior rapes themselves: the victims’ graphic and
emotional descriptions of the manner in which the prior rapes occurred; the fact that
Brown was never prosecuted or punished for those prior rapes; and the ongoing
adverse effects on the victims arising from the rapes. The other difficulty is the manner
in which the State argued the prior uncharged rapes to the jury. Thus, in assessing
whether a manifest injustice or miscarriage of justice occurred, it is not the admission of
evidence of the prior rapes themselves that is relevant. Instead, our focus must be on
the prejudicial effect of the evidence of the surrounding circumstances, and the
prejudicial effect of the State’s rebuttal closing argument.
The other evidence of Brown’s guilt was A.E.’s and K.E.’s trial testimony and
Child Safe interviews about Brown’s abuse and threats, the testimony of all of the
persons to whom A.E. and K.E. disclosed Brown’s abuse and threats, and the testimony
of the Children’s Mercy pediatrician who diagnosed them with child sexual abuse.
29
While A.E. and K.E. may have been inconsistent in describing some of the details
surrounding the sexual acts, they were clear in describing the actual sexual acts that
Brown committed. The actual sexual acts that A.E. and K.E. described supported each
of the nine counts of first-degree statutory sodomy against Brown. Furthermore, K.E.’s
description of those sexual acts demonstrated a knowledge of sexual matters well
beyond that of a typical eight-year-old child. K.E. said that Brown “cummed” in her anus
and her mouth and that the “cum” was white, gooey, and tasted disgusting. Defense
counsel elicited from K.E. that Brown had taught her the word “cum”; thus, the jury could
reasonably infer that Brown was the source of all of her precocious sexual knowledge,
including the color, consistency, and taste of ejaculate. Additionally, Brown’s conduct
after he was arrested evidenced his consciousness of guilt and his desire to conceal the
offense. State v. Barton, 998 S.W.2d 19, 28 (Mo. App. 1999). In his recorded jailhouse
conversations, Brown instructed his mother on what she and other witnesses should
say if they were called to testify, and he made a thinly-veiled threat against A.E.’s and
K.E.’s lives in his conversation with Mother.
Brown does not challenge the admissibility or sufficiency of any of this evidence.
This evidence overwhelmingly established his guilt of the charged crimes. “[P]lain error
can serve as the basis for granting a new trial on direct appeal only if the error was
outcome determinative.” Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002). It is
Brown’s burden to show that the plain error was outcome determinative, and he has
failed to meet that burden. State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019).
Therefore, Brown has not demonstrated that he suffered a manifest injustice or
miscarriage of justice entitling him to relief. Point III is denied.
30
CONCLUSION
The judgment is affirmed.
________________________________
LISA W HITE HARDWICK, JUDGE
ALL CONCUR
31