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Defendant Maura Celis-Garcia was convicted by a jury of two counts of first-degree statutory sodomy. The defendant appealed, asserting that (1) the trial court violated her constitutional right to a unanimous jury verdict because, although the state presented evidence of multiple, separate acts of hand-to-genital contact committed against her two minor daughters, the verdict directors failed to require the jury to agree to the specific acts she committed to find her guilty of a single count of statutory sodomy against each daughter; and (2) the trial court erred by overruling her objections to certain testimony by two expert witnesses because the testimony improperly vouched for the credibility of the victims, thereby invading the province of the jury. The Supreme Court reversed, holding that because the trial court failed to instruct the jury it had to agree on the same act or acts of hand-to-genital contact the defendant committed in finding her guilty of statutory sodomy, her right to a unanimous jury verdict was violated. Because the defendant's conviction was reversed on the basis of her first point, the Court did not address her second point. Remanded.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF MISSOURI
STATE OF MISSOURI,
MAURA L. CELIS-GARCIA,
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
The Honorable Larry D. Harman, Judge
Opinion issued June 14, 2011
Maura Celis-Garcia was convicted by a jury of two counts of first-degree statutory
sodomy in violation of section 566.062. 1 On appeal, she raises two points of error. First,
she claims the trial court violated her constitutional right to a unanimous jury verdict
because, although the state presented evidence of multiple, separate acts of hand-togenital contact committed against her two minor daughters, the verdict directors failed to
require the jury to agree to the specific acts she committed to find her guilty of a single
count of statutory sodomy against each daughter. 2 Additionally, Ms. Celis-Garcia claims
Unless otherwise noted, all statutory references are to RSMo Supp. 2005, which is the
version of the revised statutes in effect when the offenses discussed in this opinion
“A person commits the crime of statutory sodomy in the first degree if he has deviate
sexual intercourse with another person who is less than fourteen years old.” Section
the trial court erred by overruling her objections to certain testimony by two expert
witnesses because the testimony improperly vouched for the credibility of the victims,
thereby invading the province of the jury. Because the trial court failed to instruct the
jury that it had to agree on the same act or acts of hand-to-genital contact Ms. CelisGarcia committed in finding her guilty of statutory sodomy, her right to a unanimous jury
verdict was violated. Accordingly, the judgment is reversed, and the case is remanded.
Factual and Procedural Background
This Court reviews the evidence in the light most favorable to the jury’s verdict.
State v. Taylor, 298 S.W.3d 482, 491 (Mo banc 2009). Viewed in that light, the facts of
the case are as follows: Ms. Celis-Garcia is the mother of two minor daughters, C.J. and
K.J. In April 2006, C.J. and K.J., ages five and seven, were removed from Ms. CelisGarcia’s custody and placed in foster care. After being placed with their foster family,
the children informed their foster mother that Ms. Celis-Garcia and her boyfriend
sexually abused the children on several occasions. On learning this information, the
children’s foster parents contacted the division of family services. The children later
were interviewed and taken to a hospital where they were given sexual assault forensic
examinations (SAFE). The SAFE reports indicated that C.J. had a segment of her hymen
missing, while K.J.’s genitals showed no abnormalities.
566.062.1 (emphasis added). “Deviate sexual intercourse” is defined, in relevant part, as
“any act involving the genitals of one person and the hand, mouth, tongue, or anus of
another person . . . done for the purpose of arousing or gratifying the sexual desire of any
person.” Section 566.010(1) (emphasis added).
Ms. Celis-Garcia subsequently was charged with one count of first-degree
statutory sodomy against C.J. and one count of first-degree statutory sodomy against K.J.
Ms. Celis-Garcia initially was tried for those crimes in September 2007. That case
resulted in a mistrial due to jury deadlock. The case subsequently was retried two months
At the second trial, the state presented the testimony of both children through
videotaped depositions. During her deposition, K.J. described three separate incidents of
statutory sodomy. The first incident occurred on the enclosed back porch of Ms. CelisGarcia’s home. K.J. testified that Ms. Celis-Garcia and her boyfriend took her to the
porch, removed her pants, and began touching her breasts, vagina, and buttocks with their
The second incident occurred three or four days later in Ms. Celis-Garcia’s
bedroom. K.J. testified that her mother and her mother’s boyfriend removed her clothes,
restrained her hands and feet with handcuffs, and hung her on the bedroom wall by
attaching the handcuffs to a rod or hook. Ms. Celis-Garcia and her boyfriend then
touched K.J.’s genitals with their hands.
The third and final incident detailed by K.J. occurred when K.J. and C.J. were
taking a shower. K.J. testified that her mother and her mother’s boyfriend entered the
bathroom, removed the two girls from the shower, and took them to the back porch where
K.J. had been previously molested. Once on the back porch, Ms. Celis-Garcia and her
boyfriend began touching both girls’ private areas with their hands.
The state also showed the jury C.J.’s videotaped testimony.
deposition, C.J. testified that Ms. Celis-Garcia and her boyfriend touched her genitals
with their hands on more than one occasion. One incident occurred in Ms. Celis-Garcia’s
C.J. testified consistently with her sister that Ms. Celis-Garcia and her
boyfriend used handcuffs to hang the girls from the wall. C.J. also testified that another
incident took place in a shed behind her home, where Ms. Celis-Garcia touched C.J.’s
breasts and vaginal area. C.J. further testified that she witnessed multiple incidents in
which her sister was touched by Ms. Celis-Garcia and her boyfriend.
The state also presented the testimony of Maria Mittelhauser, a forensic
interviewer at a child advocacy center, and Ellen Walls, a licensed social worker, both of
whom interviewed C.J. and K.J regarding the allegations of statutory sodomy. During
her testimony, Ms. Mittelhauser explained her interview process with the children. At the
end of her testimony, the state played a video recording of the interview she conducted
with the children. During the interview, the children recounted many of the incidents of
statutory sodomy they described in their depositions. They also testified that Ms. CelisGarcia and her boyfriend once entered the bathroom while the girls were bathing and
began touching one or both of the girls’ genitals. The incident was interrupted when one
of the girls called to their grandmother, who came into the bathroom and stopped the
incident from continuing.
During her testimony, Ms. Walls testified that the children also described to her
incidents of sexual abuse by Ms. Celis-Garcia and her boyfriend. Like Ms. Mittelhauser,
Ms. Walls also stated that the children described an occasion during which their
grandmother stopped a sexual encounter involving their mother and the mother’s
boyfriend that occurred while the children were showering.
The defense presented one witness, Maria Garcia, the mother of Ms. Celis-Garcia
and the grandmother of C.J. and K.J. Ms. Garcia testified that she never witnessed her
daughter or the boyfriend inappropriately touching the children. She denied interrupting
any abuse in the bathroom. She also testified that the children had a reputation for lying.
At the close of the evidence, the jury returned a verdict finding Ms. Celis-Garcia
guilty on both counts of first-degree statutory sodomy. The trial court sentenced her to
concurrent prison terms of 25 years on each count. Ms. Celis-Garcia appealed. After a
decision by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
Jury Instructions Did Not Require Unanimous Jury Verdict
Ms. Celis-Garcia first claims the trial court erred by submitting verdict directors
that did not identify the specific incident or incidents of hand-to-genital contact that the
jury was required to agree she committed in finding her guilty of statutory sodomy,
thereby violating her right to a unanimous jury verdict. Ms. Celis-Garcia concedes she
failed to object to the verdict directors submitted to the jury and requests that the Court
review her claim for plain error. 3
The state argues that Ms. Celis-Garcia waived her right to plain error review by failing
to object to the state’s verdict directors and by submitting her own verdict directors that
suffered from the same defect she now challenges on appeal. Contrary to the state’s
argument, this Court previously has determined that a defendant does not waive plain
error review by failing to object to a faulty jury instruction or by failing to submit a
correct instruction. State v. Derenzy, 89 S.W.3d 472, 475 (Mo. banc 2002) (submission
of an incorrect instruction did not waive plain error review); State v. Wurtzberger, 40
S.W.3d 893, 897-98 (Mo. banc 2001) (counsel’s affirmative statement that he had no
An unpreserved claim of error can be reviewed only for plain error, which requires
a finding of manifest injustice or a miscarriage of justice resulting from the trial court’s
error. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). 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. Dorsey, 318
S.W.3d 648, 652 (Mo. banc 2010) (quoting State v. Salter, 250 S.W.3d 705, 713 (Mo.
In the present case, the trial court submitted Instruction No. 6, which instructed the
jury on the first count of statutory sodomy committed against C.J. That verdict director
read as follows:
As to Count 1 regarding the defendant Maura L. Celis-Garcia, if you find and
believe from the evidence beyond a reasonable doubt:
First, that between the dates of January 01, 2005 and March 31, 2006 4 , in the
County of Saline, State of Missouri, the defendant or [her boyfriend] placed her or
his hand on [C.J.’s] genitals, and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at that time [C.J.] was less than twelve years old, then you are
instructed that the offense of statutory sodomy in the first degree has occurred, and
if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the commission of that
statutory sodomy in the first degree, the defendant Maura L. Celis-Garcia acted
together with or aided [her boyfriend] in committing that offense, then you will find
the defendant Maura L. Celis-Garcia guilty under Count 1 of statutory sodomy in
the first degree.
objection to the instruction and his failure to submit an alternative instruction did not
waive plain error review).
The verdict directors changed the January 1, 2006 to May 31, 2006 timeframe listed in
the indictment to January 1, 2005 to March 31, 2006. Ms. Celis-Garcia raises no claim
regarding this date change. Because time is not of the essence in a statutory sodomy
case, such a change does not impact the Court’s decision. See State v. Payne, 452
S.W.2d 805, 809 (Mo. 1970); see also State v. Sprinkle, 122 S.W.3d 652, 659 (Mo. App.
However, unless you find and believe from the evidence beyond a reasonable
doubt each and all of these propositions, you must find the defendant Maura L.
Celis-Garcia not guilty of that offense.
(Emphasis added). The language in Instruction No. 7, which instructed the jury on the
second count of statutory sodomy committed against K.J., was identical to Instruction
No. 6, except that it substituted K.J.’s name.
Ms. Celis-Garcia argues these verdict directors failed to ensure the jury reached a
unanimous verdict because the verdict directors required only a general finding of handto-genital contact between the specified dates and did not require agreement by the jury
on a specific incident of hand-to-genital contact to find her guilty. Ms. Celis-Garcia
argues the instruction is insufficient because the state presented evidence that she and her
boyfriend placed their hands on the children’s genitals on separate occasions and at
different locations. Without some differentiation in the verdict directors, Ms. CelisGarcia contends that it is impossible to know which act or acts of hand-to-genital contact
the jury agreed she committed when it found her guilty. Specifically, she argues that
some of the jurors may have convicted her because they believed she placed her hands on
C.J.’s genitals in the shed, while others may have disbelieved that evidence and, instead,
convicted her based on the conduct that allegedly occurred in the bedroom or on the back
Ms. Celis-Garcia premises her claim of right to a unanimous jury verdict on both
the United States and Missouri constitutions. However, because the federal constitution
does not require a unanimous verdict in state prosecutions5 , this Court only considers Ms.
Celis-Garcia’s claim that her rights were violated under the state constitution.
The Missouri Constitution provides, in pertinent part, “[t]hat the right of trial by
jury as heretofore enjoyed shall remain inviolate . . . .” Mo. Const. art. I, sec. 22(a)
(emphasis added). This Court has interpreted the phrase “as heretofore enjoyed” as
protecting “all the substantial incidents and consequences that pertain to the right to jury
trial at common law.” State v. Hadley, 815 S.W.2d 422, 425 (Mo. banc 1991) (citing
State ex rel. St. Louis, K. & N.W. Ry. v. Withrow, 36 S.W. 43, 48 (Mo. banc 1896)). One
of the “substantial incidents” protected by article I, section 22(a) is the right to a
unanimous jury verdict. Hadley, 815 S.W.2d at 425 (citing State v. Hamey, 67 S.W. 620,
623 (Mo. banc 1902)). 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.” 23A C.J.S. Criminal Law § 1881 (2006); State v. Jackson, 146 S.W. 1166,
1169 (Mo. 1912) (“The defendant is entitled to a concurrence of the minds of the 12
jurors upon one definite charge of crime.”).
The factual scenario presented by Ms. Celis-Garcia’s case is commonly referred to
as a “multiple acts” case. See 75B AM. JUR. 2D Trial § 1511 (2007); see also 23A C.J.S.
Criminal Law § 1882 (2006). A multiple acts case arises when there is evidence of
multiple, distinct criminal acts, each of which could serve as the basis for a criminal
Apodaca v. Oregon, 406 U.S. 404, 406 (1972) (holding that a state court conviction by
less than a unanimous jury does not violate a criminal defendant’s Sixth Amendment
right to trial by jury).
charge, but the defendant is charged with those acts in a single count. Id. To determine
if a case is a multiple acts case, courts consider the following factors: “(1) whether the
acts occur at or near the same time; (2) whether the acts occur at the same location; (3)
whether there is a causal relationship between the acts, in particular whether there was an
intervening event; and (4) whether there is a fresh impulse motivating some of the
conduct.” 75B AM. JUR. 2D Trial § 1511.
This is a case involving multiple acts. Accepting K.J. and C.J.’s videotaped
statements as true, there were at least seven separate acts of statutory sodomy that
occurred at different times (some more than three days apart) and in different locations.
In her deposition testimony, K.J. alleged that her mother and her boyfriend touched her
genitals on an enclosed back porch. On another occasion, three or four days later, K.J.
alleged that her mother and her boyfriend touched her genitals in a bedroom. During a
third encounter, K.J. testified that her mother and her boyfriend removed her and her
sister from the bathroom and took them to the back porch and touched both girls on their
genitals. In her deposition testimony, C.J. testified that her mother and her boyfriend
touched her genitals on more than one occasion. Specifically, she alleged that one
incident occurred in her mother’s bedroom and that another incident took place in a shed.
Finally, during their videotaped interview with Ms. Mittelhauser, K.J. and C.J. both
testified about an incident in which their mother and the mother’s boyfriend made handto-genital contact with one or both of the girls while they were in the bathroom. 6
Despite 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 Ms. Celis-Garcia of the same act or acts. The verdict directors
allowed the jury to find Ms. Celis-Garcia guilty of first-degree statutory sodomy if they
believed “that between [specified dates] . . . the defendant or [her boyfriend] placed her
or his hand on [the victim’s] genitals . . . .” This broad language allowed each individual
juror to determine which incident he or she would consider in finding Ms. Celis-Garcia
guilty of statutory sodomy. Under the instructions, the jurors could convict Ms. CelisGarcia 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
This Court addressed the issue of jury unanimity in multiple acts cases in State v.
Washington, 146 S.W. 1164 (Mo. 1912). In that case, the defendant was charged with
one felony count of setting up and keeping gambling devices. Id. at 1165. Although the
defendant was charged with only one offense, there was evidence at trial that the
defendant kept more than one gambling table – a craps table and a poker table. Id. The
instruction submitted to the jury allowed it to convict the defendant even though some of
Under the verdict directors, the jury could convict Ms. Celis-Garcia of statutory sodomy
if she, herself, engaged in hand-to-genital contact with the children or if she aided her
boyfriend in doing the same. See section 562.041.1, RSMo 2000.
the jurors may have agreed to a verdict of guilty as to one table and disbelieved the
testimony as to the other table, while the other jurors may have found the opposite to be
true. Id. at 1166. The Court found the instruction clearly erroneous and reversed the
defendant’s conviction. Id. Similarly, in the companion case of State v. Jackson, the
Court found reversible error when the record did not reveal which of the tables the
defendant was found guilty of setting up and keeping. 146 S.W. at 1168-69.
In State v. Pope, the court of appeals dealt with facts virtually identical to the
733 S.W.2d 811 (Mo. App. 1987).
In that case, the defendant was
convicted of two counts of sodomy against two minor victims. Id. at 812. At trial, one of
the victims testified that she preformed sexual acts on the defendant on two different
occasions. Id. The other victim testified that she had multiple sexual encounters with the
defendant on separate occasions. Id. The verdict directors submitted to the jury provided
that the defendant could be convicted if “the defendant had deviate sexual intercourse
with [the victim] . . . .” In reversing the defendant’s conviction, the court noted that the
verdict director made it impossible to determine which of the sexual acts the jury agreed
the defendant committed in finding him guilty. Id. at 813.
In Jackson, discussed above, this Court stated that to avoid violating a defendant’s
right to a unanimous jury verdict in a multiple acts case, the state should be required to
“elect” the specific act on which it asks the jury to convict. 146 S.W. at 1168. Other
states have guaranteed a unanimous verdict by allowing the prosecution either to elect the
particular criminal act on which it will rely to support the charge or to require the trial
court to specifically instruct the jury that it must agree on the same underlying criminal
act. 7 State v. Muhm, 775 N.W.2d 508, 518-20 (S.D. 2009); State v. Gardner, 889 N.E.2d
995, 1005-06 (Ohio 2008); State v. Voyles, 160 P.3d 794, 800 (Kan. 2007); State v.
Arceo, 928 P.2d 843, 874-75 (Hawaii 1996); Woertman v. People, 804 P.2d 188, 19192 (Colo. 1991); State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988); State v. Kitchen, 56
P.2d 105, 108 (Wash. 1988). In these cases, the courts held that if the state fails to elect
one specific act it will submit to support the conviction, the jury may be instructed on
several different criminal acts in the disjunctive, but the jury must be instructed to agree
unanimously on at least one of the criminal acts identified in the verdict director. 23A
C.J.S. Criminal Law § 1647 (2006). This Court agrees that a defendant’s right to a
unanimous verdict would be protected in a multiple acts case by either the state (1)
electing the particular criminal act on which it will rely to support the charge or (2) the
verdict director specifically describing the separate criminal acts presented to the jury and
the jury being instructed that it must agree unanimously that at least one of those acts
The Missouri Approved Instructions–Criminal provide only that the jury’s verdict,
“whether guilty or not, must be agreed to by each juror.” MAI-CR 3d 302.05. The
approved instructions do not include an instruction directing that the jury agree on the
same, specific criminal act in a multiple acts case.
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 K.J. and C.J. provided details of
multiple sexual acts that were committed at different times and in different locations.
The state correctly points out that the applicable patterned instructions in MAI do
not require differentiation among multiple, separate criminal acts that each could
constitute the charged offense, unless the defendant requests or the court elects to do so
on its own motion. See MAI-CR 3d 304.02, Note on Use 6. Specifically, the note
observes that “[t]he place of the offense may become of decisive importance under
certain circumstances, such as . . . (c) where the defendant may have committed several
separate offenses against the victim at the same general location within a short space of
time.” Id. “In such a situation, upon the request of the defendant or on the court’s own
motion, the place should be more definitely identified, such as ‘the front bedroom on the
second floor,’ ‘the southeast corner of the basement,’ etc.” Id.
The modification permitted by the note on use is insufficient to protect a
defendant’s constitutional right to a unanimous jury verdict in a multiple acts case. First,
the note on use is written in permissive rather than mandatory language, stating only
“upon the request of the defendant or on the court’s own motion, the place should be
more definitely identified.”
Second, the note limits the details identifying the
separate offenses to location and does not take into consideration the timing of the
offenses or other distinguishing characteristics. Most significantly, while the note on use
permits multiple acts to be more definitely described in the verdict director, the note does
not require that the jury unanimously agree on the same criminal act that serves as the
basis for the defendant’s conviction. It is insufficient to require only that the multiple
acts be described with more specificity, without also requiring the jury to agree which of
those acts the defendant committed. As noted above, to comply with the constitutional
mandate that the jury reach a unanimous verdict, the verdict director not only must
describe the separate criminal acts with specificity, but the court also must instruct the
jury to agree unanimously on at least one of the specific criminal acts described in the
verdict director. To the extent MAI-CR and its notes on use conflict with this substantive
law, they are not binding. State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997) (citing
State v. Anding, 752 S.W.2d 59, 61 (Mo. banc 1988)). “‘Procedural rules adopted by
MAI cannot change the substantive law and must therefore be interpreted in the light of
existing statutory and case law.’” Id.
In the present case, the verdict directors submitted by the state instructed the jurors
to find Ms. Celis-Garcia guilty if they believed she committed sodomy by hand-to-genital
contact generally. The state presented evidence of multiple, separate instances of handto-genital contact committed against both victims, any one of which would have
supported the charged offenses. As such, the verdict directors were erroneous because
they permitted the jury to convict Ms. Celis-Garcia of two counts of sodomy without
identifying the acts the jurors were to agree she committed. Because it is impossible to
determine whether the jury unanimously agreed on any one of these separate incidents,
the verdict directors violated Ms. Celis-Garcia’s constitutional right to a unanimous jury
verdict under article I, section 22(a) of the Missouri Constitution.
Having determined the trial court erred by failing to correctly instruct the jury, it is
necessary to determine whether that error resulted in manifest injustice or a miscarriage
of justice, thereby warranting reversal. Unlike some statutory sodomy cases in which the
defense simply argues that the victims fabricated their stories, Ms. Celis-Garcia sought to
exploit factual inconsistencies and raise doubts about the plausibility of the specific
incidents of statutory sodomy alleged by her daughters. During closing argument, Ms.
Celis-Garcia attacked the children’s allegations that they were hung by handcuffs
attached to hooks by raising inconsistencies in the girls’ testimony regarding the location
of the hooks. She further attacked those allegations by noting that K.J. demonstrated
inconsistent physical methods by which she was handcuffed to the wall and by noting
that the state failed to present photographic evidence of alleged scarring to the girls’
wrists that resulted from being hung with the handcuffs.
Regarding the bathroom incident, the girls’ grandmother testified that she never
interrupted any sexual encounter as the girls alleged. The grandmother further testified
that she never witnessed any inappropriate sexual activity and never saw any handcuffs at
the home. During closing, the defense emphasized the close proximity between the
grandmother’s bedroom and Ms. Celis-Garcia’s bedroom, where several acts of statutory
sodomy allegedly occurred. The defense argued it was highly unlikely for these acts to
occur without the grandmother’s knowledge. With respect to the incidents allegedly
occurring on the enclosed back porch and the shed, the defense argued the implausibility
of either event happening.
Specifically, the defense noted the enclosed porch was
surrounded by windows, making the acts visible to the public, while the shed was located
across the road from the Celis-Garcia’s home on a separate piece of property.
Of course, the jury was free to believe or disbelieve any of the witness testimony.
Keveney v. Missouri Military Academy, 304 S.W.3d 98, 105 (Mo. banc 2010). However,
the fact that Ms. Celis-Garcia relied on evidentiary inconsistencies and factual
improbabilities respecting each specific allegation of hand-to-genital contact makes it
more likely that individual jurors convicted her on the basis of different acts. The Court
finds that the verdict directors misdirected the jury in a way that affected the verdict,
thereby resulting in manifest injustice. Accordingly, Ms. Celis-Garcia’s convictions for
first-degree statutory sodomy are reversed, and she is entitled to a new trial on those
Allegedly Improper Vouching by Expert Witnesses
Ms. Celis-Garcia next challenges the admission of certain testimony by two of the
state’s experts, Ellen Walls and Maria Mittelhauser. She argues that both experts gave
opinions regarding the truthfulness of C.J. and K.J.’s allegations of sexual abuse, which
invaded the province of the jury to determine the children’s credibility.
Ms. Celis-Garcia argues that two statements made by Ms. Walls and one statement
by Ms. Mittelhauser improperly vouched for K.J. and C.J.’s credibility.
statement challenged by Ms. Celis-Garcia involved Ms. Walls’s testimony that K.J. and
C.J.’s behavior was consistent with the behavior of other victims of sexual abuse. The
second statement challenged by Ms. Celis-Garcia was Ms. Walls’ response to a question
asking if she had any reason to doubt the truthfulness of the children’s allegations. In
response to the question, she stated that she had no reason to doubt their truthfulness.
The final statement challenged by Ms. Celis-Garcia involved similar testimony by Ms.
Mittelhauser in which she testified she had not received any information from the
children to cause her to believe they were being untruthful.
In child sex abuse cases, there are typically two types of expert testimony that are
challenged: generalized and particularized. State v. Churchill, 98 S.W.3d 536, 539 (Mo.
banc 2003). An expert gives generalized testimony when he or she describes the general
behaviors and characteristics commonly found in children who have been sexually
abused. Id. The trial court has discretion to admit generalized testimony. Id. On the
other hand, an expert gives particularized testimony when he or she gives testimony
regarding the specific victim’s credibility as to whether the victim actually was abused.
That type of evidence is inadmissible because it usurps the jury’s province to
determine a witness’s credibility. Id.
Because Ms. Celis-Garcia’s conviction is reversed on the basis of her first point,
the Court need not decide whether the admission of Ms. Walls and Ms. Mittelhauser’s
testimony was erroneous. Should the state seek to introduce the same testimony on
remand, the trial court’s ruling on the admissibility of that evidence should be governed
by whether the testimony is generalized or particularized as defined in Churchill.
Because the trial court failed to instruct the jury that it had to agree on the same
act or acts of hand-to-genital contact Ms. Celis-Garcia committed in finding her guilty of
statutory sodomy, her right to a unanimous jury verdict was violated. The trial court’s
failure to properly instruct the jury constituted plain error. Accordingly, the judgment is
reversed, and the case is remanded.
PATRICIA BRECKENRIDGE, JUDGE