Opinion
WD 83615
12-21-2021
STATE of Missouri, Respondent, v. Christopher R. JACKSON, Appellant.
Katharine P. Curry, Columbia, MO, for appellant. Gregory L. Barnes, Jefferson City, MO, for respondent.
Katharine P. Curry, Columbia, MO, for appellant.
Gregory L. Barnes, Jefferson City, MO, for respondent.
Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick, Judge, and Thomas N. Chapman, Judge
Cynthia L. Martin, Judge
Christopher R. Jackson ("Jackson") appeals from a judgment convicting him of one count of rape in the first degree, one count of domestic assault in the second degree, one count of attempted tampering with a victim, and two counts of violating an order of protection. Jackson claims on appeal that the trial court erred in overruling his objection to the State's use of a peremptory strike, in allowing testimony about prior uncharged acts of abuse, in instructing the jury how it could consider the evidence of prior uncharged acts of abuse, and in finding that he was a prior assault offender. Finding no error, we affirm Jackson's convictions. However, we remand this matter to the trial court with instructions to correct a clerical error in the judgment.
Factual and Procedural History
The State charged Jackson as a prior assault offender with one count of rape in the first degree, one count of domestic assault in the second degree, one count of attempted rape in the first degree, one count of attempted tampering with a victim, and two counts of violation of an order of protection. Viewed in the light most favorable to the jury's verdicts, the evidence at trial established the following: On the evening of January 27, 2019, L.D. ("Victim") was asleep in her bedroom when her boyfriend, Jackson, returned home, undressed, and then crawled in bed next to Victim. Jackson began to undress Victim, and she said, "[N]o, I'm not in the mood for any of that, chill, not in the mood for it" because she had just returned from her grandmother's funeral and was still grieving. Jackson told Victim that she "didn't even know that woman." After Victim said that she "just [was] not in the mood" and that she did not want to have sex, Jackson hit the left side of Victim's face with his closed fist and attempted to pin her down to the bed. Jackson then "yanked" Victim's clothes off her body and hit her "multiple times in the face." Victim told Jackson to stop and fought back, but Jackson then penetrated Victim's vagina with his penis. Victim said, "No, please don't do this. Why are you doing this?" Jackson said "mean" and "insulting stuff," like "I go to work all the time," and "this is mine." Jackson grabbed Victim by her hair and "yank[ed] it back and forth, real fast," while continuing to penetrate her. Chunks of Victim's hair were later discovered on the bedroom carpet and on the mattress.
We view the evidence in the light most favorable to the jury's verdicts, disregarding all contrary evidence and inferences. State v. Hendricks , 619 S.W.3d 171, 173 n.1 (Mo. App. W.D. 2021).
Once Jackson was no longer penetrating Victim, she went to the bathroom to look at her face. Victim began crying because "[her face] was all bruised up." Jackson came into the bathroom and said, "I'm not done with you. What are you doing?" before grabbing Victim's hair and dragging her back to the bedroom. Victim attempted to fight back, but she was overpowered. Once Jackson had taken Victim to the bedroom, Jackson began kicking Victim "real hard" and tried to lift Victim onto the bed when she "kept falling down on purpose so [she would not] have to get [in]to the bed." Jackson retaliated by punching Victim's stomach with a closed fist. Victim stopped resisting at that point due to the pain she was suffering and "just let [Jackson] have his way." Jackson forced Victim to have intercourse a second time. Victim waited for Jackson to fall asleep, and once he had been asleep for one or two hours, Victim left the bedroom and called the police.
The police arrived while Jackson was still sleeping. An officer transported Victim to a nearby hospital, where Victim was examined by a sexual assault nurse examiner ("SANE") nurse. Victim reported to the SANE nurse that she had been sexually and physically assaulted by an intimate partner. The SANE nurse noted that Victim's left temple and cheek were swollen and bruised. The SANE nurse collected swabs of Victim's cervix. Those cervical swabs were later tested for the presence of DNA. The fluid swabbed from Victim's cervix contained DNA matching the DNA of Victim and of Jackson.
Victim sought and obtained an order of protection against Jackson. The order of protection provided that Jackson "shall not communicate with [Victim] in any manner or through any medium," and "strictly prohibited" "the use of third parties, including children, to communicate." A process server personally served Jackson with the order of protection on February 26, 2019. Thereafter, Jackson sent at least four letters to Victim, asking Victim not to answer calls from the prosecutor's office, to live elsewhere to avoid receiving a subpoena, not to come to court, and to ask that Jackson's charges be dropped.
Jackson was tried before a jury in October 2019. Prior to voir dire, the trial court found beyond a reasonable doubt that Jackson was a prior assault offender because he pleaded guilty and was convicted of domestic battery in Johnson County, Kansas in 2015.
The jury acquitted Jackson of attempted rape in the first degree but found Jackson guilty of the remaining five charges. The trial court entered a judgment ("Judgment") sentencing Jackson as a prior assault offender to fifteen years’ incarceration for the first-degree rape conviction, five years’ incarceration for the second-degree domestic assault conviction, seven years’ incarceration for the tampering with a victim conviction, and three years’ incarceration for each of the convictions for violating an order of protection. The Judgment ordered that the domestic assault sentence was to run consecutively to the rape sentence, but that the tampering with a victim and violating an order of protection sentences were to run currently with the rape sentence. Thus, Jackson was sentenced to a total of twenty years’ incarceration.
The Judgment indicates that the trial court found Jackson to be a "persistent assault offender," but referred to section 565.079.13, the subsection describing prior assault offenders. The Judgment sentenced Jackson in accordance with the trial court's oral finding at trial that Jackson was a prior assault offender. Both Jackson and the State treat the Judgment as finding beyond a reasonable doubt that Jackson is a prior assault offender, not a persistent assault offender.
Such an error is a clerical mistake that may be corrected by a nunc pro tunc judgment. See State v. Spears , 452 S.W.3d 185, 198 (Mo. App. E.D. 2014). However, in lieu of requiring motion for nunc pro tunc judgment to be filed, we remand this matter to the trial court with instructions to correct the Judgment to reflect that Jackson was convicted as a prior assault offender.
All statutory references are to RSMo 2016 as supplemented through January 27, 2019, unless otherwise indicated.
Jackson appeals. Additional facts are discussed in the analysis portion of the Opinion as necessary.
Analysis
Jackson presents four points on appeal, challenging the peremptory strike of a potential juror, the admission of prior uncharged acts, a jury instruction's reference to evidence of prior uncharged acts, and the trial court's determination that he was a prior assault offender. We address the points in turn.
Point One: State's Peremptory Strike of Venireperson No. 5
Jackson argues that the trial court clearly erred in overruling his objection to the State's peremptory strike of Venireperson No. 5 as an improper attempt to exclude a potential juror in contravention of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Venireperson No. 5 was the only potential juror who self-identified as Native American.
Our review of a trial court's denial of a Batson challenge is for clear error. State v. Gilbert , 628 S.W.3d 702, 707 (Mo. App. W.D. 2021). A trial court's ruling on a Batson challenge constitutes clear error if "we ... have a ‘definite and firm conviction that a mistake has been made.’ " Id. (quoting State v. Bateman , 318 S.W.3d 681, 687 (Mo. banc 2010) ). "A trial court's determination that a peremptory strike was made on racially neutral grounds is entitled to great deference on appeal," State v. Boyd , 597 S.W.3d 263, 268 (Mo. App. W.D. 2019), "because its findings of fact largely depend on its evaluation of credibility and demeanor." Gilbert , 628 S.W.3d at 707 (quoting State v. Evans , 490 S.W.3d 377, 384 (Mo. App. W.D. 2016) ). Pursuant to the Equal Protection Clause of the Fourteenth Amendment, peremptory challenges may not be used to remove "potential jurors solely on account of their race." Batson , 476 U.S. at 89, 106 S.Ct. 1712. The Missouri Supreme Court has identified a three-step burden-shifting procedure for trial courts to use to determine whether a peremptory challenge by the state runs afoul of the Equal Protection Clause:
First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.
State v. Meeks , 495 S.W.3d 168, 172-73 (Mo. banc 2016) (quoting State v. Parker , 836 S.W.2d 930, 939 (Mo. banc 1992) ).
Jackson challenges only the third step, and argues that the trial court clearly erred when it concluded that Jackson failed to demonstrate that the State's proffered reason for exercising a peremptory challenge to strike Venireperson No. 5 was merely pretextual and was instead racially motivated. We disagree.
During voir dire, the State asked, "Is there anyone here who has a close personal friend or family member who has been convicted of domestic violence or sexual assault or some other violent crime?" Six members of the venire panel raised their hands. One was Venireperson No. 5, who had the following exchange with the prosecutor:
Q: Juror Number 5?
A: Both my brothers served 20 years. Both of them were jumped by their children, they got convicted, 20 years.
Q: So that happened 20 years or more ago?
A: Yeah.
Q: Was that prosecuted here in Jackson County?
A: Yes.
Q: Do you believe that they were prosecuted fairly?
A: No.
Q: And to have that experience and have two brothers that had been sentenced and feel like the system didn't treat them fairly, is that something that has got a bad taste in your mouth to the point that it may affect the way you look at the evidence in this case?
A: No.
Q: Okay. It's not going to cause you to hold it against me?
A: No.
At the end of voir dire, the State sought to use a peremptory strike to remove Venireperson No. 5. Jackson lodged a Batson objection. The State explained that it wanted to strike Venireperson No. 5 because he believed his two brothers were not treated fairly by the criminal justice system. In response, Jackson argued that the State's stated reason for striking Venireperson No. 5, a self-identified Native American, was mere pretext, demonstrated by "disparate questioning" of other members of the venire who were not asked whether they believed their family member had been treated fairly by the criminal justice system, even though they had family members who had been found guilty of domestic violence, sexual assault, or some other violent crime. Jackson thus argued that the "treated fairly" question was designed by the State to elicit an answer to pretextually support striking Venireperson No. 5.
The trial court overruled Jackson's Batson challenge, noting that the State did not strike other members of the venire who self-identified as African American and Asian, and explaining that "the State gave a race-neutral reason and I did understand the question and I do understand the standard. Even so I did find the State gave a race-neutral reason and therefore the Batson objection will be overruled." The trial court thus found that Jackson did not sustain his burden to establish that the State's proffered reason for its strike of Venireperson No. 5 was merely pretextual and was racially motivated.
Jackson had the burden to demonstrate that the State's proffered race-neutral reason for striking Venireperson No. 5 was pretextual. See Boyd , 597 S.W.3d at 271 ("[T]he arrest, prosecution, or incarceration of a relative is a race-neutral reason for exercising a peremptory challenge.") (quoting State v. Johnson , 930 S.W.2d 456, 461-62 (Mo. App. W.D. 1996) ). A conclusory allegation that the peremptory strike was motivated by race is not sufficient to meet that burden. State v. Jackson , 385 S.W.3d 437, 440 (Mo. App. W.D. 2012). Instead, the party challenging the peremptory strike has the burden to "present evidence or specific analysis showing that the proffered reason was pretextual." Gilbert , 628 S.W.3d at 708 (quoting Jackson , 385 S.W.3d at 440 ). In determining whether the State's proffered reason for the peremptory strike was merely pretextual, we "consider[ ] a non-exclusive list of factors ..., including: ‘the explanation in light of the circumstances; similarly situated jurors not struck; the relevance between the explanation and the case; the demeanor of the state and excluded venire members; the court's prior experiences with the prosecutor's office; and objective measures relating to motive.’ " Id. (quoting State v. McFadden , 369 S.W.3d 727, 739 (Mo. banc 2012) ). Disparate questioning of members of the venire may be probative of discriminatory intent if the use of disparate questioning is determined by race. Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2248, 204 L.Ed.2d 638 (2019).
Jackson first argues that, even though Venireperson No. 5 answered that he had two brothers he believed had not been treated fairly by the criminal justice system, his ability to remain fair and impartial had been rehabilitated so that "the State had no reason to legitimately conclude that [Venireperson] No. 5's belief that his brothers were treated unfairly in their specific situation amounted to a larger bias against the prosecutor's office generally." [Appellant's Brief, p. 26] This argument is not preserved for our review, as it was not presented to the trial court. See State v. Harris , 516 S.W.3d 461, 467 (Mo. App. E.D. 2017) (finding an argument of pretext made for the first time on appeal unpreserved).
Jackson next argues, as he did at trial, that other members of the venire who had family members convicted of domestic violence, sexual assault, or another violent crime were not asked whether they believed the family member had been treated fairly by the criminal justice system. According to Jackson, because the follow-up "fairly treated" question created the purportedly race-neutral reason for striking Venireperson No. 5, the State's failure to ask the same question of other similarly situated members of the venire establishes that the stated reason for striking Venireperson No. 5 was pretextual.
Six members of the venire raised their hands when the State asked, "Is there anyone here who has a close personal friend or family member who has been convicted of domestic violence or sexual assault or some other violent crime?" Two of those six members of the venire self-identified as members of a racial minority: Venireperson No. 5 self-identified as Native American, and Venireperson No. 44 self-identified as African American. Venireperson No. 44 ultimately served on the jury. Venireperson No. 9, whose self-identified race cannot be determined from the record, was asked if she believed her father-in-law had been treated fairly by the criminal justice system. Though she answered yes, she was struck by the State for cause. Another member of the venire who raised their hand in response to the State's question was also struck for cause, though never asked the "treated fairly" follow-up question.
Thus, of the six members of the venire who raised their hand in response to the State's question about prior convictions, two members (whose race cannot be determined from the record) were struck by the State for cause, and one member (Venireperson No. 44 who self-identified as a minority) served on the jury. We cannot say under these circumstances that the trial court clearly erred in concluding that Jackson failed to establish that the State's decision to strike Venireperson No. 5 was merely pretextual. Nothing prohibited the State from using " ‘hunch’ challenges so long as racial animus [was] not the motive." Gilbert , 628 S.W.3d at 709 (quoting State v. Antwine , 743 S.W.2d 51, 67 (Mo. banc 1987) ).
Point One is denied.
Point Two: Evidence of Prior Abuse
Jackson's second point on appeal challenges the admission of Victim's testimony about uncharged acts of abuse by Jackson. Jackson argues that the testimony constituted inadmissible propensity evidence, or that the prejudicial impact of the testimony outweighed its probative value if offered for any other purpose. Jackson claims that he was prejudiced by the erroneously admitted testimony about the prior acts of abuse.
The State asserts that Jackson waived his second point on appeal during opening statement. The State is correct that a defendant waives a complaint about the admission of evidence by opening a door "with a theory presented in an opening statement." State v. Shockley , 410 S.W.3d 179, 194 (Mo. banc 2013). However, the State's argument fails to take into consideration that the State first raised Jackson's prior violence in its opening statement when it told the jury that after Victim and Jackson began living together, their relationship had periods of "high emotion and turbulence" during which Jackson would threaten Victim and her family and become violent. Jackson's acknowledgement of this anticipated evidence in his opening statement, in response to the State's opening statement, does not constitute a waiver of the argument raised on appeal, particularly as at the time of the opening statements, Jackson knew (as we discuss, infra ), that the trial court had denied his pre-trial motion in limine seeking to exclude evidence of prior acts of violence at trial.
The State asserts that Jackson's second point on appeal is not preserved for appellate review because he failed to object each time Victim testified about prior uncharged acts of abuse. To preserve a claim of error relating to the admission of evidence, a party must make an objection at the time the evidence is sought to be admitted at trial. State v. McWilliams , 564 S.W.3d 618, 625 (Mo. App. W.D. 2018).
Here, Jackson filed a pre-trial motion in limine asking the trial court to prohibit the admission of evidence regarding Jackson's uncharged crimes, bad acts, or bad character, and specifically, evidence of prior instances of abuse involving Victim. The motion was denied after the State argued that it intended to admit evidence of Jackson's prior abuse of Victim to show Victim's fear of Jackson to satisfy the forcible compulsion element of rape, to demonstrate Jackson's intent, and to give the jury a complete picture of the circumstances surrounding the crimes. The trial court, however, told Jackson's counsel to object "as things come up," and that the trial court would revisit the issue as she "learn[ed] more about the case."
Victim was the State's first witness at trial. Victim testified that she met Jackson in 2013 or 2014, and began living with Jackson in June 2014. The State asked Victim, "Before moving in together around June of 2014, had [Jackson] ever hit you?" Before she answered, Jackson's counsel approached the bench and said:
Your Honor, I know the Court's already ruled on this, [but] I just want to make sure that I preserved the objection. I do continue to object to the State eliciting testimony regarding prior incidents of domestic violence between [Victim] and Mr. Jackson. I make this objection pursuant to Mr. Jackson's equal protection, due process, and impartial jury rights pursuant to the United States Constitution and its provisions in the state constitution.
The trial court responded, "Okay. Your objection is overruled." Thereafter, as Victim testified about Jackson's prior acts of violence, Jackson objected on some, but not every, occasion on the basis raised in the motion in limine. Although Jackson's request for a continuing objection could have been clearer, his aforesaid objection was sufficient to permit the conclusion that it was Jackson's intent to object on a continuing basis to all testimony from Victim about Jackson's prior acts of violence. And in any event, Jackson did object on more than one occasion in response to the State's questions about his prior abuse of Victim. We therefore elect to treat Jackson's second point on appeal as preserved for our review. See State v. Burroughs , 627 S.W.3d 69, 74 (Mo. App. E.D. 2021).
We review the decision to admit or exclude evidence at trial for abuse of discretion. State v. Gibbons , 629 S.W.3d 60, 83 (Mo. App. W.D. 2021). "A trial court abuses its discretion when its ‘ruling admitting or excluding evidence is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." State v. Ratliff , 622 S.W.3d 736, 744 (Mo. App. W.D. 2021) (quoting State v. Loper , 609 S.W.3d 725, 731 (Mo. banc 2020) ). Evidentiary error alone will not require reversal, though; the appellant must have suffered prejudice as a result of the admission of the evidence. Gibbons , 629 S.W.3d at 83. "Trial court error in the admission of evidence is prejudicial if the error so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the jury would have reached a different conclusion without the error." Id. (quoting State v. Suttles , 581 S.W.3d 137, 145 (Mo. App. E.D. 2019) ).
Jackson identifies several discrete instances at trial where Victim testified about prior uncharged abuse by Jackson. Jackson claims that on each occasion, the evidence should have been excluded as inadmissible propensity evidence, or as more prejudicial than probative if offered for any other purpose.
We disagree. Victim testified that "the first time [Jackson] ever hit [her] was a couple weeks after [they] had moved in together," and that they were having an argument when "he hit [her] in the face." Victim testified that on a number of occasions, Jackson punched her in the face, spit on her, kicked her, choked her, and drug her by the hair. When asked about threats Jackson made during their relationship, Victim testified that on one occasion, Jackson threatened to rape Victim's sister. Victim testified that fights with Jackson would happen about very three months, and that she "[didn't] even have to be doing anything for him to get upset."
Victim described an incident where Jackson forcibly drug her down the stairs by her hair and her foot in front of her children. Victim explained that she then obtained an order of protection against Jackson to protect herself and her children. Jackson then objected to the State eliciting testimony regarding any additional acts of domestic violence on the grounds that the testimony would be duplicative and cumulative. The trial court overruled the objection. Victim then testified about returning to her home one morning to find Jackson inside, notwithstanding the order of protection. According to Victim, Jackson immediately took her phone so she could not call the police.
Victim testified about an incident in 2015 during which Jackson drove Victim to her workplace in Kansas at a time when she was pregnant. Victim testified that the two argued about which route to take to avoid a detour, and that Jackson punched Victim with a closed fist multiple times on the side of her face so that her head hit the passenger side window. Victim testified that she arrived late to work, and her supervisor immediately asked what happened because her face had turned blue and purple. At the urging of her supervisor, Victim called the local police to report the incident. Victim testified that, over the course of her relationship with Jackson, she had obtained more than two orders of protection against Jackson, but that never kept him away from her.
Next, the State asked Victim about other abuse she suffered. Victim testified about Jackson's response when she is not in the mood for sex. Jackson objected on the basis that such incidents were inadmissible prior uncharged acts. The State explained that it intended to have Victim testify about prior sexual encounters she had with Jackson that were not consensual in order to establish that Victim knew, based on experience, that Jackson would force her to have sex even if she refused and, thus, to establish Victim's mindset on the date of the crime. The trial court asked if Victim's testimony on the subject would be general or about specific incidents. The State responded that Victim would generally testify about nonconsensual sexual encounters she had with Jackson, and the trial court overruled the objection. Victim then testified that on occasions when she refused to have sex with Jackson, she would "get punched around."
Jackson alleges on appeal that Victim's testimony constituted inadmissible propensity evidence. "[P]ropensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish that [a] defendant has a natural tendency to commit the crime charged." State v. Garretson , 598 S.W.3d 643, 653 (Mo. App. W.D. 2020) (quoting State v. Boss , 577 S.W.3d 509, 519 (Mo. App. W.D. 2019) ). The general rule is that uncharged crimes, wrongs, or acts are not admissible for the purpose of showing the defendant's propensity to commit such crimes. State v. Paine , 631 S.W.3d 691, 695 (Mo. App. W.D. 2021). We exclude evidence of prior uncharged crimes, wrongs, or acts in order to prevent the jury from "us[ing] the evidence of the uncharged crime to infer the defendant has a general criminal disposition, a bad character, or propensity or proclivity to commit the type of crime charged," and in turn, "basing a finding of guilt on the uncharged crime." State v. Thomas , 628 S.W.3d 686, 691 (Mo. App. E.D. 2021) (quoting State v. Mosely , 599 S.W.3d 236, 243 (Mo. App. W.D. 2020) ).
While evidence of uncharged crimes, wrongs, or acts is not admissible to establish the defendant's propensity to commit the crime for which he is charged, such evidence may be admissible for other purposes. State v. Brammer , 614 S.W.3d 18, 28 (Mo. App. E.D. 2020). In other words, evidence of uncharged crimes, wrongs, or acts may be admissible if otherwise logically and legally relevant. Thomas , 628 S.W.3d at 691. Evidence is logically relevant if it tends to make the existence of a material fact more or less probable. Id. Evidence of uncharged crimes, wrongs, or acts may be logically relevant to establish the defendant's motive, intent, absence of mistake or accident, identity, or common scheme; "a complete and coherent picture of the circumstances and events surrounding the charged crime"; or any other material fact. Id. at 691-92 (quoting State v. Coleman , 580 S.W.3d 11, 13 (Mo. App. E.D. 2019) ). If evidence of uncharged crimes, wrongs, or acts tends to prove something other than the defendant's propensity to commit the crimes for which he is charged, then the question becomes whether the evidence is legally relevant. Id. at 691. Evidence is legally relevant if its probative value outweighs its costs--"unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Id. (quoting State v. Anderson , 76 S.W.3d 275, 276 (Mo. banc 2002) ). "In balancing the probative value of evidence against its potential prejudicial effect on the jury, ‘the trial court must carefully consider that ‘the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors.’ " Id. at 692 (quoting State v. Nelson , 178 S.W.3d 638, 644 (Mo. App. E.D. 2005) ).
Jackson argues that Victim's testimony chronicling prior uncharged acts of abuse was not logically relevant for any other purpose than to show Jackson's propensity to commit the crimes for which he was charged. Jackson's argument fails to appreciate, however, that logical relevance is a "very low-level test that is easily met." Id. at 691 (quoting State v. Banks , 582 S.W.3d 919, 924-25 (Mo. App. E.D. 2019) ). Victim's testimony about prior uncharged abuse was probative on the issue of consent, i.e. , whether Jackson used forcible compulsion to have sexual intercourse with Victim. Section 566.030.1 ("A person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion."); State v. Houston , 467 S.W.3d 894, 899 (Mo. App. E.D. 2015) ("Lack of consent is an element of rape and attempted rape, and thus evidence tending to prove whether Victim consented to the sexual activity is logically and legally relevant to the crime charged.").
Victim's testimony about Jackson's prior uncharged acts of abuse also gave a "complete and coherent picture of the events that transpired" on January 27, 2019, or the "res gestae. " See State v. Primm , 347 S.W.3d 66, 71 (Mo. banc 2011) ("[E]vidence of uncharged crimes may be admissible to provide the trier-of-fact with a ‘complete and coherent picture of the events that transpired.’ " (quoting State v. Harris , 870 S.W.2d 798, 810 (Mo. banc 1994) )). Res gestae evidence includes evidence of:
[t]hings done, or ... the facts of the transaction; ... the surrounding facts of a transaction explanatory of an act or showing a motive for acting; ... matters
incidental to a main fact and explanatory of it, including acts and words which are so closely connected with a main fact as will constitute a part of it, and without knowledge of which the main fact might not be properly understood.
State v. Smith , 353 S.W.3d 100, 105 (Mo. App. W.D. 2011) (quoting State v. Davis , 226 S.W.3d 167, 170 (Mo. App. W.D. 2007) ). In particular, "[e]vidence of prior bad acts may be admissible to explain a witness's delay in reporting a matter to the police." See State v. Miller , 372 S.W.3d 455, 474 (Mo. banc 2012). Victim's testimony describing the prior uncharged acts of abuse she suffered by Jackson gave context for her decision to lie in bed with Jackson for one to two hours before calling the police to report what happened, explaining that Victim's delay was motivated by her fear of Jackson. See id. ("The evidence of physical abuse toward [the victim's] mother and brothers does tend to give a ‘complete and coherent picture of the events that transpired,’ more specifically why [the victim] did not speak up earlier about the abuse that had been going on for eight years.").
Jackson argues that even if the evidence of prior bad acts was logically relevant for a purpose other than to show his propensity to commit the crimes of which he was charged, the evidence should nonetheless have been excluded because its probative value was outweighed by its potential for prejudice. See Thomas , 628 S.W.3d at 692. Jackson argues that Victim's testimony describing the events of January 27, 2019, "was entirely sufficient to establish that Mr. Jackson engaged in forcible compulsion and that [Victim] resisted, did not comply with his requests, and called the police as soon as possible" so that Victim's testimony about prior uncharged instances of abuse by Jackson was "not necessary" to show why Victim felt compelled to engage in sexual intercourse with Jackson. [Appellant's Brief, p. 37] Jackson also asserts that Victim's testimony describing prior uncharged instances of abuse was highly prejudicial, as the testimony "was rife with inflammatory details," including that Jackson abused Victim while she was pregnant, Jackson stole Victim's phone to prevent her from calling the police, and Jackson threatened sexual violence against members of Victim's family. [Id. ]
Jackson's argument that Victim's testimony about prior abuse was "not necessary" to establish forcible compulsion, and was highly inflammatory, is not persuasive. Our "standard of review affords great deference to the trial court's assessment of whether evidence is legally relevant." State v. Kelly , 604 S.W.3d 672, 680 (Mo. App. W.D. 2020) (quoting State v. Clover , 924 S.W.2d 853, 856 (Mo. banc 1996) ). The trial court is in a better position to assess the possible prejudicial effect of evidence against the evidence's probative value, a determination that necessarily requires the trial court "to consider and understand the circumstances within the trial." Id. (quoting Clover , 924 S.W.2d at 856 ). Given that a victim's lack of consent to sexual intercourse is an essential element of rape, evidence that tended to prove that Victim did not consent to sexual activity with Jackson on January 27, 2019, is highly probative to the ultimate question before the jury. Section 566.030; Houston , 467 S.W.3d at 899. We cannot conclude that the trial court abused its discretion in concluding that the probative value outweighed the potential prejudice to Jackson.
Point Two is denied.
Point Three: Instruction No. 6
Jackson's third point on appeal argues that the trial court committed error in submitting Instruction No. 6, which explained how the jury could consider evidence of prior uncharged acts of abuse by Jackson. Instruction No. 6, based on MAI-CR 4th 410.10 and modified by State v. Primm , 347 S.W.3d 66, 70 (Mo. banc 2011), instructed the jury as follows:
The defendant is on trial only for the offenses charged. You may not find the defendant guilty only because you believe he may have been involved in or committed other offenses or bad acts in the past.
If you find and believe from the evidence that the defendant previously was involved in or committed other offenses or bad acts, you may consider such evidence only for the purposes stated in this instruction.
If you find a [sic] believe from the evidence that defendant was convicted of the offense of domestic battery, you may consider that evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony.
If you find and believe from the evidence that the defendant previously committed other bad acts, other than the offenses for which he is now on trial and the offense listed in the preceding paragraph, you may consider that evidence only to the extent that it presents a complete and coherent picture of the events that transpired.
Jackson objected at trial about the inclusion of the final paragraph in Instruction No. 6. Jackson repeats that objection on appeal, claiming that because his prior bad acts did not occur close in time to the crimes for which he was being prosecuted, the prior bad acts were not part of the "complete and coherent picture of the events that transpired," and the jury should not have been instructed to consider Victim's testimony for that purpose.
"We review claims of instructional error de novo to determine whether the instruction was supported by the law and the evidence." State v. Ganaway , 624 S.W.3d 361, 367 (Mo. App. E.D. 2021). Reversal for instructional error is appropriate if "the instruction misled, misdirected or confused the jury, and resulted in prejudice" to the defendant. Id. An instructional error is not prejudicial unless the error deprived the defendant of a fair trial. State v. Cruz-Basurto , 581 S.W.3d 51, 56 (Mo. App. W.D. 2019).
We have already explained that evidence of Jackson's prior abuse of Victim was in part admissible to explain Victim's delay in contacting the police. And we have explained that evidence admitted for that purpose is relevant because it helps to provide a complete and coherent picture of the events that transpired. See Miller , 372 S.W.3d at 474 ("The evidence of physical abuse toward [the victim's] mother and brothers does tend to give a ‘complete and coherent picture of the events that transpired,’ more specifically why [the victim] did not speak up earlier about the abuse that had been going on for eight years.") Because the evidence of Jackson's prior abuse of Victim was properly admitted for this purpose, it was not legally erroneous to include the last paragraph in Instruction No. 6.
Point Three is denied.
Point Four: Prior Assault Offender Finding
In his final point on appeal, Jackson argues that there was insufficient evidence presented at trial for the trial court to conclude that Jackson is a prior assault offender. Jackson asserts that the evidence did not establish beyond a reasonable doubt that his prior conviction in Kansas for "domestic battery" would have constituted an "assault offense," as the term is defined in section 565.079.1(1), if he would have committed it in Missouri.
Our review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Alvarez , 628 S.W.3d 400, 413 (Mo. App. W.D. 2021) (quoting State v. Zetina-Torres , 482 S.W.3d 801, 809 (Mo. banc 2016) ). In doing so, we accept all evidence and reasonable inference in favor of the conviction as true, and ignore all evidence and inferences contrary to the conviction. Id. We do not reweigh the evidence on appeal. Id.
Section 565.079.13 requires the trial court to "sentence a person who has been found to be a prior assault offender and is found guilty of a class B, C, or D felony under this chapter to the authorized term of imprisonment for the class one class step higher than the offense for which the person was found guilty." A "prior assault offender" is statutorily defined as "a person who has been found guilty of one assault offense, where such prior offense occurred within five years of the occurrence of the assault offense for which the person is charged." Section 565.079.1(3). Section 565.079.1(1) enumerates the following offenses as "assault offenses":
[M]urder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter in the first degree, assault in the first degree, assault in the second degree, assault in the third degree, assault in the fourth degree, domestic assault in the first degree, domestic assault in the second degree, domestic assault in the third degree, domestic assault in the fourth degree, or an attempt to commit any of these offenses, or the commission of an offense in another jurisdiction that if committed in this state would constitute the commission of any of the listed offenses
Jackson was found guilty of domestic assault, a class D felony under Chapter 565, in the instant case, and Jackson concedes that he was found guilty of domestic battery in Kansas. Jackson's argument concerns whether his 2015 Kansas domestic battery conviction constitutes an "assault offense" as to render him a prior assault offender.
Jackson first asserts that the elements of "domestic battery" set forth in section 21-5414 of the Kansas Statutes Annotated do not correspond to the elements of any of the "assault offenses" enumerated in section 565.079.1(1). We rejected a similar argument in State v. Hill , 839 S.W.2d 605 (Mo. App. W.D. 1992), where the defendant claimed error in sentencing him as a persistent sexual offender because his prior offense was assault with intent to commit rape in violation of a federal statute whose elements did not correspond with a Missouri statute. Id. at 608. We held that "the elements of the foreign statute need not correspond to the elements of the crimes which are enumerated in [section] 558.018[, RSMo 1986,] in order to trigger the application of that statute." Id. (citing State v. Kelly , 728 S.W.2d 642, 648 (Mo. App. S.D. 1987) ). Instead, "the test is whether the acts committed during the commission of a foreign crime would constitute the commission of one of the crimes mentioned in [section] 558.018[, RSMo 1986]." Id. (citing Kelly , 728 S.W.2d at 648 ).
Jackson next argues that there was insufficient evidence presented at trial to conclude that Jackson committed acts in Kansas that would have constituted an "assault offense" if those same acts were committed in Missouri. We disagree. The certified records considered by the trial court established that Jackson pleaded guilty to domestic battery in violation of section 21-5414 of the Kansas Statutes Annotated. Victim testified about the incident that led to the Kansas conviction when she described Jackson's assault in the car while driving her to work in Kansas. Victim testified that Jackson punched her with a closed fist multiple times on the side of her face so that her head hit the passenger side window, resulting in facial bruising and a black eye.
Assault in the fourth degree occurs when a person "attempts to cause or recklessly causes physical injury, physical pain, or illness to another person." Section 565.056.1(1). By repeatedly punching Victim's face, resulting in bruising and a black eye, Jackson's actions, at the very least, recklessly caused physical injury and physical pain to Victim. Jackson's actions would have supported a conviction of assault in the fourth degree in Missouri, an "assault offense" pursuant to section 565.079. Sufficient evidence supported the trial court's finding that Jackson was a prior assault offender based on the Kansas conviction for domestic battery.
Point Four is denied.
Conclusion
The Judgment is affirmed. However, we remand this matter to the trial court with instructions to correct the Judgment to reflect that Jackson was found to be a prior assault offender, instead of a persistent assault offender.
In its brief, the State complains in a footnote that we should review for plain error the sentences imposed on Jackson because the trial court erred by ordering the victim tampering and violations of an order of protection sentences to run concurrent with the first-degree rape sentence, in violation of section 558.026.1(1) & (5). The State did not file a cross-appeal to raise this claim of sentencing error, though it would have been permitted to do so pursuant to section 547.200.2. The State's contention is not preserved for appellate review. "The general rule of appellate procedure is that, in the absence of a cross-appeal, the reviewing court is concerned only with the complaint of the party appealing and that the opposing party who filed no appeal will not be heard to complain of any portion of the trial court's judgment adverse to him." Goldberg v. State Tax Comm'n , 618 S.W.2d 635, 642 (Mo. 1981). In any event, the State's unpreserved contention is without merit, as Jackson's conduct giving rise to the charges for victim tampering and violations of an order of protection occurred well after his rape of Victim, and thus not "during or at the same time as" his first-degree rape of Victim. See section 558.026.1(1).
All concur