STATE OF MISSOURI, Respondent v. JEFFREY LEE WALLER, Appellant

STATE OF MISSOURI, Respondent, v. JEFFREY LEE WALLER, Appellant.

No. SD38562

APPEAL FROM THE CIRCUIT COURT OF WAYNE COUNTY Honorable Megan Seay, Judge AFFIRMED Jeffrey Lee Waller ("Waller") appeals his conviction of sodomy in the first degree. In three points on appeal, he asserts (1) the evidence was insufficient to show both that Victim was unable to consent and that Waller was manifestly aware of Victim's inability to consent, (2) the evidence was insufficient to show that Waller was the perpetrator of the offense, and (3) the trial court erred or plainly erred by omitting the definition of "consent" from the verdict director for sodomy in the first degree. Factual and Procedural History We recite the facts only to the extent necessary; we address the remaining facts in

In Division

2 the analysis. Waller performed yard work and other jobs for Victim's parents at their house, which was within walking distance of his residence. During this time, Victim became acquainted with Waller, and the two later entered into a relationship. Victim was thirteen years old, and Waller was forty-eight years old. 1

Waller and Victim exchanged letters. Waller would tell Victim he had left a letter, and Victim would retrieve it from behind her home. Victim described one such letter, which was written in Waller's handwriting, as a "love note." Victim also wrote journal entries expressing her love for Waller and her desire to marry him. Victim believed they had a connection and that he was her boyfriend. Waller later performed sexual acts on Victim. Victim's sister ("Sister") saw Waller standing in front of Victim in a "meat cellar" at Victim's home, where Waller "had his pants down and his thing was out." Victim also went to Waller's nearby home during the early morning hours while the others slept. They went to his bedroom, where Waller engaged in sexual acts with Victim, including oral-genital contact and sexual touching. Eventually, Victim's mother ("Mother") learned of "inappropriate activity," and saw Victim attempting to hide items under her pillow. Victim disclosed her journal entries and Waller's "love note." Victim told Mother she and Waller were having sex.

1 The record is unclear whether Victim was twelve or thirteen when the relationship began. Because Victim's mother was certain the relationship began in the Summer of 2021 when Victim would have been thirteen, we refer to Victim as thirteen years old.

3 Mother contacted the Sheriff's Department and provided the notes and journal entries, and completed a written statement. Following the investigation, the State charged Waller with statutory rape in the first degree, sodomy in the first degree, and child molestation in the third degree. The case proceeded to jury trial. At the close of evidence, Waller's counsel made a motion for judgment of acquittal, arguing as to Count II (the sodomy charge) the case should not be submitted to the jury because the State did not offer sufficient evidence to establish whether or not Victim was capable of consent due to her youth, which the court denied. During the formal instruction conference, Waller's counsel objected to Instruction Number 6 (instructing on the sodomy charge) "based on [his] previous objection and argument on the judgment of acquittal," which the court overruled. The court read its instructions to the jury, including Instruction Number 6, which lacked the mandatory definition of "consent." 2 The jury found Waller guilty of sodomy in the first degree and not guilty on the other charges. Points 1 and 2 – Sufficiency of the Evidence Standard of Review "In reviewing a challenge to the sufficiency of the evidence, our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Armstrong, 560 S.W.3d 563, 574 (Mo.App. 2018). "We consider the evidence and all reasonable

2 See MAI-CR 4th 420.12.

4 inferences drawn therefrom in the light most favorable to the jury's verdict, and we disregard all evidence and inferences to the contrary." Id. "The credibility of witnesses and the weight to be given the evidence are for the trial court to determine, and this Court is to defer to the trial judge's superior position from which to determine credibility." State v. Erickson, 404 S.W.3d 394, 396 (Mo.App. 2013) (internal quotation marks omitted). Discussion Waller's first point argues the trial court erred in denying his motions for judgment of acquittal because "[t]he State failed to present sufficient evidence that Victim was unable to consent by reason of youth, and that [Waller] was manifestly aware of Victim's inability to consent." We disagree. Waller wrote notes to Victim, including the "love note," which read, "Hello, beautiful. I love you. Forever and always. I always think about you every day. You're always on my mind. I can't stop thinking about you. I wake up thinking about you. I love you forever." Beneath the note Waller wrote, "Hey don't let girlfriends nobody anyone know." On the back he wrote "loves and kisses tell nobody please." Waller testified he wrote this note to "push [Victim] away" because "she's too young for me," and he "knew she was a child." When asked by the State, "What would you say if you were trying to get someone away?" Waller answered, "Please get away." Victim kept journal entries in two journals, one of which had a pink mermaid on the cover. On one occasion, she wrote, in part: I love you so much Jeff. I love you to the moon and back Jeff.

5 you are so sweet to me Jeff. Love you and you love me Jeff.

On another occasion, she drew a heart in her journal and wrote inside it, "I love Jeff + [Victim] = Love." Beneath the heart, Victim wrote, "Jeff and [Victim] Waller." Complying with Waller's request for secrecy, Victim attempted to hide these journal entries to conceal her relationship with Waller from Mother. Sister also testified Victim constantly told her not to tell Mother about her relationship with Waller and about the "meat cellar" incident. Victim testified Waller would come to her bedroom window early in the morning, while everyone slept, and knock on it. He would help her out the window, bring her to his home, and commit sexual acts with her in his bedroom. Mother testified Waller would take a path which avoided the security cameras on their home, because Waller knew where the security cameras were. "A person commits the offense of sodomy in the first degree if he ... has deviate sexual intercourse with another person who is ... incapable of consent ...." See section 566.060.1 RSMo. Cum. Supp. (2017). Under Missouri law, [C]onsent or lack of consent may be expressed or implied. Assent does not constitute consent if ... [i]t is given by a person who by reason of youth ... is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense.

See section 556.061(14)(b) RSMo Cum. Supp. (2020) (emphasis added). Concerning the first element of the statutory definition of "consent," in State v. Hedges, 649 S.W.3d 93, 100 (Mo.App. 2022), the Court drew an analogy between cases

6 involving force used against a young victim to compel sexual activity, and cases where a victim was incapable of consenting to sexual activity due to youth. The Court observed that in forcible sexual offenses, a court will consider "whether violence or threats precede the sexual act; the relative ages of the victim and accused; the atmosphere and setting of the incident; the extent to which the accused was in a position of authority, domination, and control over the victim; and whether the victim was under duress." Id. These factors "essentially ask whether a defendant's actions have coerced a victim into engaging in nonconsensual acts." Id. The Court stated, "We believe those same factors are also relevant to determining whether a particular victim, especially one as young as Victim in this case, is capable of consenting to sexual acts due to her youth." Id. "Missouri cases as far back as the early twentieth century acknowledge the breadth of what evidence may support a jury's finding that a victim is incapable of consent." State v. Dickerson, 609 S.W.3d 839, 845 (Mo.App. 2020). Moreover, "as our sexual- offense laws have developed, juries have retained the ultimate authority to determine if the State has met its burden to prove a first-degree sexual offense involving a ... victim incapable of consent." State v. Thomas, 715 S.W.3d 557, 561 (Mo.App. 2025). Here, the jury was aware of the thirty-five-year age disparity between Waller and Victim. The jury heard the contents of the "love note" that Waller wrote to Victim, telling her, "I love you forever," and ordering her "don't let ... anyone know" about their relationship. The State presented extensive testimony identifying the specific times, places, and manner in which Waller isolated Victim from others to commit sexual acts with her. The State also offered Victim's journal entries, which reflected her hope and

7 belief, at age thirteen, that she would be with Waller forever. It was reasonable for the jury, as the "ultimate authority" on whether Victim was capable of granting consent, to reach its conclusion after considering extensive evidence of the significant age disparity and the control Waller exercised over Victim. See id. As to the second element of the statutory definition of "consent," we reject Waller's argument that the State failed to prove Waller knew Victim was manifestly unable to consent to his advances. We note the State's instruction deviated from the statutory definition of "consent." The instruction unnecessarily increased the State's burden by requiring the jury to find both that Victim "was manifestly unable and known by defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the deviate sexual intercourse ...." (Emphasis added.) By contrast, the statutory definition of "consent" requires a jury find either Victim was "manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged ...." See 556.061(14)(b) RSMo. Cum. Supp. (2020) (emphasis added). "The question of sufficiency arises before the case is put to the jury and is really an issue of whether the case should have been submitted to the jury." State v. Beggs, 186 S.W.3d 306, 312 (Mo.App. 2005). "The Court's review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt." Id. (internal quotation marks omitted). At the time the case was submitted to the jury, the State was required to provide sufficient evidence to prove Victim, by reason of her youth, either was manifestly unable to make a

8 reasonable judgment, or that Waller knew Victim was unable to make a reasonable judgment as to the nature or harmfulness of the deviate sexual intercourse. As discussed, there was sufficient evidence for the jury to believe Victim was manifestly unable to make a reasonable judgment as to Waller's sexual advances. Nevertheless, the jury found Waller guilty under the increased burden the State placed on itself, meaning the jury also found Waller knew Victim was incapable of making a reasonable judgment. The above testimony regarding Waller's conduct with Victim, his attempts to preserve secrecy, and his knowledge of their age disparity, is sufficient for a reasonable juror to find Waller knew Victim was unable to consent by reason of her age. Armstrong, 560 S.W.3d at 574. Therefore, considering the evidence and all reasonable inferences drawn therefrom in light most favorable to the jury's verdict, we find there was sufficient evidence from which a reasonable juror might have found Victim, by reason of her age, was manifestly unable to consent to Waller's sexual advances, and that Waller knew she was unable to consent. Point 1 is denied. Waller's second point argues the State failed to meet its evidentiary burden at trial because the State made no in-court identification of Waller. He argues because there was no in-court identification, the State did not prove Waller was the man who committed the crime. We find this argument devoid of substance. At trial, Victim, Mother, and Sister all testified that a man named "Jeffrey Waller" did yard work for the family, and he lived within walking distance of their home. Investigator Jesse Drum ("Investigator") testified he interviewed Waller and took his

9 "name, date of birth, social security number, [and] address." Investigator also testified Waller admitted to writing the "love note" to Victim. He further explained that during the interview, Waller admitted to hugging and kissing Victim. Chief Deputy John England ("Chief Deputy") testified he investigated the identity of the "Yard Man" and learned the man's name was "Jeffrey Waller." He then identified Waller in the courtroom as the man "right next to [Defense Counsel]." 3 Victim identified the "love note" before the jury, testified it was from "Jeff," it was in "Jeff's writing," and that it was "the kind of love note [she] received from Mr. Waller." She finally testified that she had sexual contact with "Mr. Waller." Even if the preceding facts were not enough to identify Waller as the man who sodomized Victim, Waller testified and identified himself as "Jeffrey Lee Waller" to the jury. He admitted Victim's parents hired him to do the yard work and other jobs at Victim's home, and that he lived next door to their home. He also admitted he had written the "love note" on a napkin to Victim. In any criminal case, "the State has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime." Erickson, 404 S.W.3d at 399 (internal quotation marks omitted). "[A]n in-court identification is not always required. The procedure used at trial to identify the defendant lies within the prudent discretion of the trial court. Each case is to be examined on its own facts looking at the totality of the

3 Waller placed undue emphasis on the Chief Deputy's initial reference to him as "James Waller," the prosecutor's correction to "Jeffrey Waller," and the State's failure to clarify the record. The jury likely drew the reasonable inference that Chief Deputy misspoke. Armstrong, 560 S.W.3d at 574.

10 circumstances." State v. Baker, 23 S.W.3d 702, 708 (Mo.App. 2000) (emphasis added) (internal quotation marks omitted). All of the evidence at trial, including Waller's own testimony, supported the reasonable inference he was the same man who did yard work for Victim's parents, lived within walking distance, wrote notes to Victim, and had sexual contact with her. There was no other person living near Victim's home, working on the yard, and writing notes to Victim. Moreover, Chief Deputy did make an in-court identification of "Jeffrey Waller," the man sitting next to Defense Counsel. The State provided sufficient evidence for which a reasonable juror might identify Waller as the man who perpetrated the crime. Point 2 is denied. Point 3 – Instructional Error Preservation and Standard of Review Waller did not specifically object to Instruction Number 6 on the grounds that it lacked the mandatory definition of "consent" at trial, nor did he specifically object on these grounds in his motion for new trial. Rule 28.03 4 provides the following: Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds for the objection.

Rule 28.03. The rule also provides, "objections must also be raised in the motion for new trial in accordance with Rule 29.11." Waller has done neither. Thus, point 3 is not

4 All rule references are to Missouri Supreme Court Rules (2024).

11 preserved. Generally, this Court does not review unpreserved claims of error. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate courts discretion to review "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error 'facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.'" State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017). "The plain language of Rule 30.20 demonstrates that not every allegation of plain error is entitled to review." State v. Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013). "The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014). Unless manifest injustice or a miscarriage of justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." Id. at 196. Finally, "the defendant bears the burden of demonstrating manifest injustice entitling him to" plain error review. State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018).

State v. Brandolese, 601 S.W.3d 519, 525-26 (Mo. banc 2020) (internal parenthetical citations omitted); see also Rule 30.20. Allegations of instructional error may be reviewed for plain error. See Brandolese, 601 S.W.3d at 531. When reviewing for instructional plain error, we apply the following standard: Even when clear and obvious, instructional error seldom constitutes plain error. We will only find plain error when the claimed error actually resulted in manifest injustice or a miscarriage of justice. Regarding alleged instructional error, manifest injustice or miscarriage of justice occurs when the trial court has so misdirected or failed to instruct the jury that it is apparent the error affected (or, as some cases describe it, 'tainted') the verdict. In determining whether the misdirection likely affected the jury's verdict, an appellate court will be more inclined to reverse in cases where the erroneous instruction excused the State from its burden of proof on a contested element of the crime.

12 State v. McKeown, 699 S.W.3d 533, 535–36 (Mo.App. 2024).

Discussion Waller's third point contends, "[t]he trial court erred or plainly erred in instructing the jury" because "Instruction Number 6, the verdict director for Count II, omitted a mandatory definition of consent." He argues a manifest injustice occurred because "[t]he omission relieved the State of its burden of proving that Victim was unable to consent by reason of her age." We disagree. The State concedes it was error for the court to submit Instruction Number 6 to the jury without the mandatory definition of "consent." However, "not all prejudicial error – that is, reversible error – can be deemed plain error. Rather, a defendant's Rule 30.20 burden is much greater – not merely to show prejudice, but manifest injustice or a miscarriage of justice – which in this context means outcome-determinative error." State v. Pike, 614 S.W.3d 651, 656 (Mo.App. 2021). Instruction Number 6, in part, instructed the jury to find Waller guilty if they believed, Second, that [Waller] [committed deviate sexual intercourse with Victim] and [Waller] did so knowing that [Victim] was incapable of consent because of youth, and was manifestly unable and known by defendant to be unable to make a reasonable judgment as to the nature or the harmfulness of the deviate sexual intercourse[.]

(Emphasis added.) The mandatory definition of "consent," the absence of which Waller asserts resulted in a manifest injustice, would have read, As used in this instruction, 'consent' or lack of consent may be expressed or implied. Assent does not constitute consent if it is given by a person who ... by reason of youth ...

13 is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense ....

See MAI-CR 4th 420.12 (emphasis added). "Where a verdict director effectively omits an essential element of the offense, such an instruction rises to the level of plain error if the evidence in the case fails to establish the existence of the omitted element 'beyond serious dispute.'" State v. Farris, 125 S.W.3d 382, 394 (Mo.App. 2004). Here, the elements were clearly present, but a definition was missing. Further, the dispute in this case was over Victim's ability to consent, not her refusal to consent at all. Instruction Number 6 defined the relevant aspect of consent in this matter and the absence of the remainder of the definition did not excuse the State of its burden of proof, nor did it likely affect the verdict. This is also demonstrated by Waller's own point relied on, arguing the State was relieved of its burden of "proving that Victim was unable to consent by reason of her age." (Emphasis added.) At trial, there was ample evidence to show Victim agreed, either expressly, impliedly, or both, to sexual acts with Waller. What the missing definition would have added to the instruction, that "consent or lack of consent may be express or implied," was "beyond serious dispute" in this case. Id. Waller has failed to facially establish a manifest injustice or miscarriage of justice has occurred from the trial court's failure to include the mandatory definition of "consent" in Instruction Number 6. Accordingly, we decline to exercise plain error review.

14 Conclusion The judgment of the trial court is affirmed. BECKY J. WEST, J. – OPINION AUTHOR MATTHEW P. HAMNER, J. – Concurs BRYAN E. NICKELL, J. – Concurs