author: ALOK AHUJA, Judge.

text:
    STATE of Missouri, Appellant, v. Dallas W. COX, Respondent.
    No. WD 71631.
    Missouri Court of Appeals, Western Distinct.
    Nov. 2, 2010.
    Motion for Reheaiing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Terrence M. Messonnier, Esq., Jefferson City, MO, for appellant.
    Eric E. Vernon, Esq., and Gharles K. Balwin, Esq., Liberty, MO, for respondent.
    Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

The State of Missouri appeals the circuit court’s dismissal of an information charging Respondent Dallas Cox with murder in the second degree, based on the State’s pre-trial destruction of evidence which may have had exculpatory value. We reverse the circuit court’s dismissal of the information and remand for further proceedings.

Factual Background

On October 6, 2008, Stephen Akin, a resident of St. Joseph, was assaulted. The next day Akin informed the St. Joseph Police Department that the perpetrators were his uncle, Kenneth Akin, and Dallas Cox, a friend of his uncle. Akin stated that Cox had kicked him in the head. On October 8, Stephen Akin was hospitalized for injuries related to the assault.

On October 9, law enforcement officers interviewed and took a statement from Cox. At that time, the officers took possession of the pair of shoes Cox claimed to have been wearing at the time of the assault; the shoes were booked into evidence on October 10.

Akin died on October 13. Following an autopsy the medical examiner concluded that he had died as a result of blunt force trauma to his head. Nail scrapings, head and pubic hair samples, and a DNA sample were collected during Akin’s autopsy.

Cox was initially charged with assault in the second degree on October 10, 2008. On November 24, Kenneth Akin pleaded guilty to voluntary manslaughter in connection with Akin’s death. Kenneth Akin stated during the plea proceedings, and apparently in other statements, that he had assaulted Akin alone. Nevertheless, on December 19 the State filed a First Amended Felony Complaint charging Cox with felony murder in the second degree, alleging that Cox, “with the purpose of causing serious physical injury to Steven Akin caused the death of Steven Akin by striking him and kicking him in the head.” The complaint was superseded by an information making the same allegations on December 29. Cox pleaded not guilty, and the case was set for a jury trial to commence on September 29, 2009.

On August 19, 2009, Cox requested an opportunity to view the physical evidence and to review any reports on trace evidence. In response to Cox’s request, law enforcement officers discovered that Cox’s shoes, the evidence collected during Akin’s autopsy, the medical report, and a compact disk containing photographs of Cox’s hands and of Akin in the hospital had all been destroyed on March 25, 2009. Based on the evidence log sheets, it appears that the evidence was destroyed by Detective Lynn Garland, who was working in the Police Department’s evidence room at the time, but was not involved in the investigation of Akin’s murder. The log sheets indicate that the evidence was destroyed as the result of a guilty plea (presumably, Kenneth Akin’s guilty plea).

On September 22, 2009, Cox filed a motion to dismiss the charges against him or in the alternative for sanctions.

After receiving a response to the motion to dismiss from the State and conducting an evidentiary hearing, the trial court entered its Judgment Sustaining Motion to Dismiss on October 16, 2009. The court’s Judgment states:

The case before the court herein presents the unique situation in which the officer who destroyed the evidence had no direct knowledge of the relative value of the evidence. The officers who were aware of the “potential” value, those who collected and booked the evidence, were not a party to the destruction. As stated emphatically by Detective Byron Weed[, one of the detectives who investigated Akin’s murder], when questioned as to whether he would have directed or authorized the destruction of the evidence, “No; this is a homicide case!”

Although the court found that Detective Garland, the officer who actually destroyed the evidence, had no knowledge of its potentially exculpatory value, the court concluded that “[t]he knowledge of the entire department should be imputed to all officers,” because “[t]o hold otherwise would be to lead to the assignment of officers to destroy evidence in cases in which they had no other investigatory responsibility.”

The Judgment also concludes that the investigating officers knew that the destroyed evidence had exculpatory value, and that this knowledge must be attributed to Detective Garland:

[T]he only logical inference is that the police were aware of the exculpatory value of the evidence. While they had seized the Defendant’s shoes at the time of his arrest, and had collected nail scrapings, head and pubic hair samples and a DNA sample card of the victim at the autopsy, none of these items had been sent off to be tested. Why else were they collected and initially retained? ... Given the investigating officers’ interest in collecting the Defendant’s shoes, and the [other destroyed evidence], this Court is constrained to find that then-Detective Lynn Garland had knowledge of the exculpatory value of the evidence at the time it was destroyed.
The State appeals.

Analysis

The State argues that the circuit court erred in dismissing the information against Cox, because the police lacked knowledge of the exculpatory value of the evidence and did not act in bad faith in destroying it. We agree.

We review a circuit court’s ruling on a motion to dismiss a charging instrument for an abuse of discretion. State v. Benuald, 186 S.W.3d 349, 366 (Mo.App. W.D.2005) (citing State v. Burns, 112 S.W.3d 451, 454 (Mo.App. W.D.2003)).

The Judgment dismissed the charges against Cox based solely on a purported violation of the Due Process Clause contained in the Fourteenth Amendment to the United States Constitution. Cox’s due process claim implicates “ ‘what might loosely be called the area of constitutionally guaranteed access to evidence.” Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (citation omitted). The standards governing such claims depends on the nature of the evidence the State has destroyed.

[W]hen the State suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld. In Youngblood, by contrast, we recognized that the Due Process Clause “requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” 488 U.S. at 57, 109 S.Ct. 333. We concluded that the failure to preserve this “potentially useful evidence” does not violate due process “unless a criminal defendant can show bad faith on the part of the police.” Id., at 58, 109 S.Ct. 333 (emphasis added).

Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (other citations omitted).

For evidence to qualify as “materially exculpatory,” “the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). If the evidence fails to meet this two-pronged test, then the evidence is, at most, only “potentially useful,” and a showing of bad faith is necessary to substantiate a due process claim based on the State’s destruction of the evidence. Fisher, 540 U.S. at 548, 124 S.Ct. 1200.

In light of the United States Supreme Court’s decision in Youngblood, the evidence at issue in this case cannot be considered “materially exculpatory.” Youngblood was a prosecution for child molestation, sexual assault, and kidnapping. 488 U.S. at 53, 109 S.Ct. 333. After the assault, the authorities collected biological samples from the ten-year-old victim’s mouth and rectum, and also collected the victim’s underwear and T-shirt, which were later found to contain semen stains. Id. By the time of the defendant’s trial, the biological samples had degraded due to lack of refrigeration, and could not be tested using then-available technology. Id. at 54, 109 S.Ct. 333.

Although the evidence at issue in Youngblood would presumably have identified the actual perpetrator of the sexual assault, the Supreme Court held that the exculpatory value of the biological material was not “apparent” at the time it was destroyed within the meaning of Trombetta, because it was unknown what testing of the evidence would reveal.

In this case, the Arizona Court of Appeals [held] ... that “ ‘when identity is an issue at trial and the police permit destruction of evidence that could, eliminate a defendant as the perpetrator, such loss is material to the defense and is a denial of due process.’ ” Th[is] reasoning ... mark[s] a sharp departure from Trombetta in two respects. First, Trombetta speaks of evidence whose exculpatory value is “apparent.” 467 U.S. at 489, 104 S.Ct. 2528. The possibility that the semen samples could have exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombet-ta. Second, we made clear in Trombetta that the exculpatory value of the evidence must be apparent “before the evidence was destroyed.” Ibid, (emphasis added). Here, respondent has not shown that the police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the boy’s clothing; this evidence was simply an avenue of investigation that might have led in any number of directions.

488 U.S. at 56 n. *, 109 S.Ct. 333. Young-blood recognized that “the good or bad faith of the State [is] irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” Id. at 57, 109 S.Ct. 333. The Court nevertheless held that a showing of bad faith was required in the case before it, because it was dealing “with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id.

Missouri courts following Youngblood have recognized that a showing of bad faith by the State is necessary where it can only be said that destroyed evidence might have exculpated a defendant. See also, e.g., State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000) (destruction of surveillance videotape made on night of victim’s abduction); State v. McElvain, 228 S.W.3d 592, 598 (Mo.App. W.D.2007) (officers failed to preserve material believed to be anhydrous ammonia, which defendant was accused of stealing); State v. Berwald, 186 S.W.3d 349, 366-67 (Mo.App. W.D.2005) (failure to preserve audiotape of child victim’s initial recounting of sexual abuse allegations to victim’s mother); State v. Smith, 157 S.W.3d 687, 691 (Mo.App. W.D.2004) (police failed to preserve chemicals found in alleged methamphetamine laboratory); State v. Burns, 112 S.W.3d 451, 454-55 (Mo.App. W.D.2003) (failure to preserve physical evidence from victim and from crime scene, and clothing defendant wore on night of sexual assault).

Under Youngblood, the evidence destroyed in this case cannot be deemed “materially exculpatory.” As in Young-blood, “no more can be said” of the shoes “than that [they] could have been subjected to tests, the results of which might have exonerated the defendant.” 488 U.S. at 57, 109 S.Ct. 333. Given the shoes’ destruction, it cannot be known whether they contained trace evidence which would have inculpated Cox, or whether testing of the shoes would have revealed no such evidence and assisted in his defense of the second-degree murder charge. Significantly, the evidence destroyed in this case has less potential probative value than in Youngblood. In Youngblood it appears that the identity of the perpetrator of the sexual assault could be conclusively determined by testing the biological materials which police had allowed to become degraded and untestable. Here, by contrast, even if the shoes had been tested and revealed no trace evidence connecting them to the assault on Akin, this would not necessarily have eliminated Cox as a perpetrator of the assault: Cox may have been wearing different shoes at the time of the assault; Cox may have kicked Akin in the head without any detectable trace evidence having been deposited on the shoes; Cox may have cleaned the shoes between the time of the assault and when they were collected by police; or Cox may have been involved in the assault along with Kenneth Akin, without actually being the one who kicked Akin.

We recognize that the shoes that were destroyed here would have been of central significance in Cox’s trial if they had been preserved, whether they tended to implicate or absolve him of the crime. However, Fisher holds that the potential importance of the evidence to the prosecution’s case, or to the presentation of a vigorous defense, is not a relevant consideration:

We ... disagree that Youngblood does not apply whenever the contested evidence provides a defendant’s “only hope for exoneration” and is “ ‘essential to and determinative of the outcome of the case.’ ” In Youngblood, the Arizona Court of Appeals said that the destroyed evidence “could [have] eliminate[d] the defendant as the perpetrator.” 488 U.S. at 54, 109 S.Ct. 338 (quotation marks and citations omitted)-[T]he applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution’s case or the defendant’s defense, but on the distinction between “material exculpatory” evidence and “potentially useful” evidence. 488 U.S. at 57-58, 109 S.Ct. 333. As we have held, the substance destroyed here was, at best, “potentially useful” evidence, and therefore Youngblood’s bad-faith requirement applies.

540 U.S. at 548-49, 124 S.Ct. 1200 (other citations omitted).

Because the evidence at issue here is only potentially exculpatory, Cox was required to show that the evidence was destroyed by the police in bad faith. “In this context, bad faith is the destruction of evidence by a state actor ‘for the purpose of depriving the defendant of exculpatory evidence.’ ” Berwald, 186 S.W.3d at 366-67 (quoting State v. Armentrout, 8 S.W.3d 99, 110 (Mo. banc 1999)); McElvain, 228 S.W.3d at 598; see also Trombetta, 467 U.S. at 488, 104 S.Ct. 2528 (in finding an absence of bad faith, noting that “[t]he record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence”).

We believe the Judgment forecloses any finding of bad faith under the standards we must apply. In its Judgment, the circuit court found that the officers who were actually aware of the potential significance of the destroyed evidence “were not a party to the destruction,” and would not have authorized its destruction. Conversely, the court found that the officer who destroyed the evidence “had no direct knowledge of the relative value of the evidence.” Given these findings, no conclusion that the police acted in bad faith is possible: in order to act with “the purpose of depriving the defendant of exculpatoiy evidence,” the individuals destroying that evidence must, at a minimum, have some knowledge that evidence is important to a pending criminal prosecution.

We recognize that the trial court imputed the investigating officers’ knowledge of the significance of the destroyed evidence to Detective Garland, the officer who destroyed it. But such imputation cannot establish bad faith in this case. The act of destruction by an officer with no purpose to deprive Cox of potentially exculpatory evidence, and the knowledge of the evidence’s significance held by other officers who possessed no intent or desire to have the evidence destroyed, cannot be combined to supply the missing ingredient: official animus towards Cox or a purpose to deprive him of the evidence.

Cox argues that there are numerous circumstances in this case that could support a finding of bad faith. Detective Garland’s destruction of the evidence was apparently contrary to the unwritten policy of the St. Joseph Police Department, which was to destroy evidence only in response to a court order, and not to destroy evidence in homicide cases. Detective Garland may also have acted contrary to the instructions he had received from the officer in charge of the evidence room, to focus only on cases older than Akin’s 2008 homicide. Further, unresolved questions exist as to why Detective Garland chose to destroy the evidence, apparently based on Kenneth Akin’s guilty plea, when the evidence log sheets did not name Kenneth Akin, but identified only Cox as being associated with the evidence.

While these circumstances arguably could have supported a finding of bad faith, the trial court failed to cite to these circumstances in its decision, and as we have explained above, any conclusion that Detective Garland acted in bad faith is foreclosed by the trial court’s explicit finding that he acted without knowledge of the evidence’s significance, and its finding that the officers with relevant knowledge were uninvolved in the destruction of the evidence, and would not have authorized it.

Conclusion

We reverse the trial court’s dismissal of the charges against Cox and remand for further proceedings consistent with this opinion.

All concur.

      . Our recitation of facts concerning the underlying charges against Cox is solely for purposes of providing necessary background to frame the legal issues presented in this appeal. The description of underlying facts in this opinion should have no effect on any future trial.

      . Detective Garland did not testify at the evi-dentiary hearing.

      . Cox asks us to follow the decisions of courts in other States which have adopted the approach advocated by Justice Stevens in a concurring opinion in Youngblood, which argued that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” 488 U.S. at 61, 109 S.Ct. 333. Whatever its merits, however, we are precluded from adopting this approach by the Missouri Supreme Court’s opinion in Ferguson, which states unambiguously that, "[a]bsent a showing of bad faith on the part of die police or prosecutor, die failure to preserve even potentially useful evidence does not constitute a denial of due process." 20 S.W.3d at 504. We also note that the approach Justice Stevens proposed in Young-blood may also have been rejected, at least as a matter of federal law, by the passage in Fisher which we quote below.

      . Although die evidence which was destroyed in this case includes other items in addition to Cox’s shoes, Cox’s arguments focus on the potential exculpatory value of the shoes, and we do likewise.

      . Notably, Youngblood was exonerated twelve years later, based on more sophisticated DNA testing of the evidence at issue in the Supreme Court’s decision. Barbara Whitaker, DNA Frees Inmate Years after Justices Rejected Plea, N.Y. Times (Aug. 11, 2000).

      . The trial court’s Judgment concludes that the investigating officers were aware of the exculpatory value of the destroyed evidence because that evidence was collected, but then not tested. We do not believe these circumstances can support an inference that the destroyed evidence was “materially exculpatory,” however. While the police’s collection of certain evidence may indicate an awareness that the evidence is potentially exculpatory, law enforcement's decision to collect particular evidence is equally consistent with a belief that the evidence will prove to be incul-patory. Similarly, the failure to test the evidence supports, at best, an inference that the police were aware of the evidence’s potentially exculpatory value.

      . The circuit court expressed concern that the police could insulate the destruction of evidence from due process review by intentionally having evidence destroyed by officers ignorant of the evidence's significance. But we believe such a situation can be addressed under existing law. Law enforcement officers involved in a criminal investigation who ask an unknowing colleague to destroy potentially useful evidence, in order to deprive the defendant of access to that evidence, have acted in bad faith, whether they destroy the evidence directly or through an agent. That is not the situation here.

      . In this connection, see § 542.301, RSMo Cum.Supp.2009 (statute governing disposition of unclaimed seized property); State ex rel. Nixon v. Russell, 45 S.W.3d 487, 500-01 (Mo.App. W.D.2001) (affirming trial court's conclusion that sheriff's disposition of unclaimed seized property in violation of § 542.301 “constitutes a willful neglect of his duty as sheriff,” supporting sheriff’s ouster from office, although sheriff testified that he was unaware of the statute's requirements).

      . We emphasize that we have addressed in this appeal only the trial court’s decision to dismiss the charges based on due process access-to-evidence principles. The trial court on remand is free to consider other legal arguments concerning the State's destruction of the evidence at issue, and the appropriate remedy under any other legal theory.


source: Caselaw Access Project

author: KAREN KING MITCHELL, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jarvis T. WILLIAMS, Appellant.
    No. WD 71136.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Rosemary E. Percival, Assistant Public Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

Jarvis T. Williams appeals the judgment of the Circuit Court of Jackson County, Missouri (“trial court”), convicting him, after a jury trial, of one count of second-degree murder, section 565.021, three counts of first-degree assault, section 565.050, and four counts of armed criminal action, section 571.015. On appeal, Williams claims that the trial court plainly erred by effectively closing the courtroom during jury selection. We affirm the judgment of the trial court.

Factual and Procedural Background

The events surrounding the offense are not particularly relevant to this appeal and are summarized briefly for background only. On October 23, 2005, at sometime around 3:00 a.m., several people began shooting at a particular automobile in a crowded gas station parking lot in Kansas City. One of the occupants of the target automobile was killed, and two of the other three occupants were also shot, causing injury. It is believed that at least five different guns fired shots during the incident, and several of those guns have been determined to have been semi-automatic rifles. One of the occupants of the target automobile who had been shot later testified that Williams was one of the shooters.

Shortly after the shooting, a Kansas City police officer saw a car speeding down the street away from the gas station. The officer followed in the direction he saw the speeding car go and caught up with the car several blocks later. The car had hit a light pole. The airbags had deployed, but there were no passengers in the car. The officer did find one semi-automatic rifle in the car. The rifle was hot to the touch, indicating that it had been recently fired. Although there were no fingerprints found on the gun itself, Williams’s fingerprints were found on the inner side of one of two magazines which had been taped together and inserted into the gun.

Hearing on his radio that a suspect’s car had been found wrecked and abandoned nearby, another Kansas City police officer began patrolling nearby streets, looking for fleeing suspects. That officer found Williams and arrested him.

At Williams’s trial, which began on Monday, March 23, 2009, a jury panel was brought into the courtroom for jury selection. The court instructed the panel to break for lunch and return to the courtroom afterwards. As Williams and his counsel left the courtroom, the victim’s mother and two other women shouted at him, yelled that he had killed the victim and that he would pay for the rest of his life. The women had to be held back by a guard. At least two members of the jury panel witnessed the outburst. As a result, the trial court judge, stating that her primary responsibility was “to make sure that Mr. Williams has a fair trial,” was forced to discharge the entire jury panel (fifty-nine people) and another fifty-seven-member panel, which had been “mixed in” with the first panel in the courthouse and thereby perhaps contaminated. The court warned all of the spectators in the courtroom that any other similar incidents would not be tolerated, and any people who could not control themselves would be barred from the trial and maybe barred from the courthouse.

The next morning, Tuesday, March 24, 2009, a new panel of fifty-seven or fifty-eight potential jurors was being escorted to the courtroom. The trial court again instructed the spectators that “there [was] to be no communication with the [panel members] who [were] in the room.” However, either the victim’s mother or one of Williams’s family members made some comments to one of the panel members in the hallway outside the courtroom. Again, the tainted panel and a reserve panel were quashed, a mistrial was declared, and the process was scheduled to start over again the following week. The trial judge, evidencing her frustration, stated:

[W]e have now had two panels two days in a row who we have been unable to even get to the first step with. Yesterday there was a communication not directed at the panel but directed at Mr. Williams, which panel members — some panel members overheard. This morning, the information to the Court is that as the panel was waiting to come into the courtroom, there was communication from the defendant’s family to at least one of the venirepersons. And we have no idea what that communication was or to whom whatever was said that person may have — may have repeated what was said.
I said yesterday and I will say again, this trial is going to be conducted in a manner that is in compliance with the law. I don’t care who the wrongdoer is. I don’t care if it’s from the victim’s family or the defendant’s family. If someone has to be excluded, they will be excluded from this courtroom.

The court went on to ask the attorneys for both sides whether they had any suggestions as to how to proceed. The court suggested allowing one family member from each side to be present for voir dire. Then Williams’s counsel stated that he had discussed the matter with the prosecution, and he did not feel that anyone other than the parties and counsel needed to be present for voir dire. Williams’s counsel suggested, “Judge, my proposal for the future to deal with this issue would be that the Court not allow any spectators in the courtroom during the voir dire process ... other than court personnel and attorneys and the panel members. I think that’s all we really need in the courtroom.” The prosecution agreed.

The trial judge then stated in open court:

I’m certainly willing to do this. We can’t do this a third time and have it— I’ve never had this happen. And it is not going to happen again, So what I will do is issue an order that all members of the public, family members, relatives, will be excluded from the courtroom during the jury selection process.

There was no objection from any party or member of the public at the time the trial court made this pronouncement. The following Monday, March 30, 2009, having had no objection from the oral pronouncement the previous week, the court issued a more narrowly tailored written order barring nine named individuals as well as “any member of the public associated with either the Defendant or the alleged victim” in the case from the fifth floor of the courthouse during jury selection. No objection was raised with the trial court. A jury was successfully selected, and there were no other disruptions during the trial. Nothing prohibited any member of the public from being present during the remainder of the trial. Williams was found guilty of every count with which he was charged. He now appeals, his sole point on appeal being that the trial court plainly erred by effectively closing the courtroom during jury selection.

Standard of Review

Properly preserved, whether a defendant’s right to a public trial has been violated is a question of law subject to de novo review. State v. Brightman, 155 Wash.2d 506, 122 P.3d 150, 154 (2005). However, because Williams did not object to the trial court’s alleged closure of the courtroom during jury selection, nor did he raise the issue in his motion for a new trial, the alleged error is not properly preserved for appeal. Nevertheless, Williams urges this court to analyze the matter under the plain error standard set forth in Missouri Supreme Court Rule 30.20.

Legal Analysis

I. A criminal defendant’s Sixth Amendment right to a public trial

A. A criminal defendant may waive his personal right to a public trial

Plain error review is available, at this court’s discretion, even if an error has not been properly preserved for appeal, if the court finds that manifest injustice or a miscarriage of justice has resulted therefrom. Rule 30.20. However, the failure to preserve the issue must result from inadvertence or negligence. See State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009) (requiring finding of inadvertence or negligence for plain error review). When “ ‘counsel has affirmatively acted in a manner precluding a finding that failure to object was a product of inadvertence or negligence,’” or it is clear that counsel acted “for a trial strategy reason,” plain error review is waived. Id. (quoting State v. Mead, 105 S.W.3d 552, 556 (Mo.App. W.D.2003)) (emphasis added).

In this case, not only did Williams’s counsel not object to the exclusion from the courtroom of certain individuals, family members, and associates of either the defendant or the victim during jury selection, he requested that all members of the public be excluded. Defense counsel asked that the courtroom be closed to everyone but the defendant, counsel, and court personnel after the judge suggested allowing one representative of each family to be present during voir dire. Counsel’s clear objective was to preserve Williams’s right to a fair trial by ensuring that a fair and impartial jury was chosen, without interference from the members of either the victim’s family or Williams’s own. Counsel’s request to close the courtroom to spectators effectively waives Williams’s right to plain error review of this issue.

B. Structural trial rights may be limited

Williams also seems to argue that, because the denial of a defendant’s right to a public trial is a “structural defect,” see United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), this court must reverse the trial court’s judgment because of the allegedly erroneous closure of the courtroom during jury selection, regardless of Williams’s own role in the trial court’s course of action. We do not find that the law requires such a conclusion. Gonzalez-Lopez does state that structural defects, such as the denial of a defendant’s right to a public trial, do not require a showing of prejudice and are not subject to harmless-error analysis. It does not, however, hold that the underlying rights are without limitation or that a court’s action interfering with those rights may not be waived. See id. at MS-49, 126 S.Ct. 2557.

Gonzalez-Lopez goes on to state that the light of the defendant involved in that case, the right to counsel of the defendant’s choice, is limited in several respects: a defendant requiring appointed counsel does not have the same right to a particular* lawyer as does a defendant hiring his own; a defendant may not insist upon representation by a non-lawyer; a court may deny a defendant’s waiver of conflict-free representation; and so forth. Id. at 151-52,126 S.Ct. 2557. The Court in Gonzalez-Lopez simply found that none of the limitations applied to the defendant in that case, because the government had conceded that the trial court’s refusal to allow the defendant’s choice of counsel was erroneous. Id. at 152, 126 S.Ct. 2557.

Just as a defendant’s right to the counsel of his choosing is not without limitation, neither is a defendant’s right to a public trial. In Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Court stated that “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” See also Presley v. Georgia, - U.S. -, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010) (quoting Waller, 467 U.S. at 45, 104 S.Ct. 2210). The presumption favoring openness may be overcome by an “overriding interest,” such as preserving a fair and unbiased jury, and thus the defendant’s right to a fair trial, but only when the court’s action is based on findings that any limitations placed on the right to public trial were essential to avoid prejudice to the overriding interest at issue. See Waller, 467 U.S. at 45, 104 S.Ct. 2210. In cases, such as this one, where the courtroom spectators’ actions could potentially contaminate the jury panel, the defendant’s right to a fair and impartial jury inherently conflicts with his right to a public trial, at least during the jury-selection phase. Accordingly, it may be, as the State argues, that the trial court’s closure of the courtroom during jury selection was entirely appropriate, especially considering that four jury venire panels had already been quashed due to improper contact with spectators. Presley states, “There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire.” Presley, 130 S.Ct. at 725.

C. Conclusion

We need not, and do not, decide whether the trial court’s exclusion of some members of the public from the courtroom during jury selection erroneously interfered with Williams’s right to a public trial, however, because we have found that he affirmatively waived that right by requesting that the court close jury selection. See Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (holding that the right to a public trial may be waived). Importantly, the defendant in Presley objected to the trial court’s closure of voir dire. Williams did not. And Waller, on which Presley relies, holds only “that under the Sixth Amendment any closure of [a part of a trial] over the objections of the accused” must be narrowly tailored and supported by particularized findings. 467 U.S. at 47, 104 S.Ct. 2210 (emphasis added). We find that these cases support a conclusion that a criminal defendant’s right to a public trial may be waived by his affirmative actions at trial and that Williams so waived his rights in this case. See also Levine, 362 U.S. at 619, 80 S.Ct. 1038.

II. Standing to raise the public’s First Amendment right to a public trial

Williams also argues that the trial court plainly erred in closing the courtroom during jury selection in that the closure violated the rights of the press and the public under the First Amendment. The right to a public trial belongs not only to the accused, under the Sixth Amendment, but to the press and the public as well, under the First Amendment. Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 509 n. 8, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); see also Waller, 467 U.S. at 44-45, 104 S.Ct. 2210. The State maintains that Williams has no standing to challenge the trial court’s closure of voir dire on First Amendment grounds. We agree, at least under the circumstances of this case.

The United States Supreme Court’s public-trial cases have not yet reached the issue of whether a criminal defendant may raise the public’s First Amendment right to a public trial, or whether the defendant is limited to the Sixth Amendment to claim a violation of the right to a public trial. There is, likewise, little if any case law from other jurisdictions. Indeed, Williams cites only one case in support of his argument, State v. Erickson, 146 Wash.App. 200, 189 P.3d 245 (2008). In Erickson, the Washington Court of Appeals based its reversal of a criminal conviction on the trial court’s questioning of several potential jurors outside of the open courtroom. Id. at 246. Erickson is factually distinguishable from the instant case in that the defendant in Erickson did not take affirmative steps to close the courtroom; rather, he merely acquiesced in the trial court’s decision to question some potential jurors in the presence of only the court and counsel. Id. at 248 n. 2.

Moreover, we do not read Erickson as holding that a criminal defendant can assert the public’s First Amendment right to a public trial. Erickson does not involve the First Amendment at all; instead, it involves state constitutional provisions guaranteeing the public’s right to open court proceedings and separately guaranteeing a defendant a right to a public trial. Id. The court’s decision suggests that it did not actually reach the issue of a defendant’s ability to assert the public’s rights. Id. (“The dissent suggests that Erickson lacks standing to invoke the public’s right to a public trial.... Regardless whether Erickson has standing under [the provision of the Washington Constitution giving the public access to court proceedings], he did not ask the trial court to close the courtroom. He merely acquiesced to the trial court’s proposal, and Erickson’s failure to object does not waive his right to public trial under [the provision of the Washington Constitution giving criminal defendants the right to a public trial].”). Even if Erickson could be read as holding that a criminal defendant can assert the public’s right to open court proceedings, that holding is obiter dictum. Erickson was found not to have waived his personal right to a public trial under the Sixth Amendment. Accordingly, there was no need to reach the issue of Erickson’s standing to assert the public’s First Amendment right, and that determination was not dispositive of the appeal. More importantly, however, on February 4, 2009, the Washington Supreme Court issued an order at 2009 Wash. Lexis 140 staying Erickson, pending the Washington Supreme Court’s final decisions in State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), and State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009).

As of July 9, 2010, the Washington Supreme Court has again stayed Erickson pending resolution of yet another case. In light of the continued pendency of the transfer petition in Erickson, it can hardly be said that Erickson is currently good law, and even if it were, it would not be controlling here.

More importantly, however, even were we to hold that a criminal defendant may, in proper circumstances, assert the First Amendment rights of the public to attend court proceedings, here Williams affirmatively requested exclusion of the public at least as broad, if not broader, than the court ordered. While Williams’s agreement to the partial closure may not have foreclosed others from challenging the order ultimately entered on First Amendment grounds, see Presley, 130 S.Ct. at 724-25 (noting that in Press-Enterprise both the prosecution and defense “argued in favor of keeping the transcript of the proceedings confidential”), Williams’s explicit advocacy for courtroom closure forecloses him from now raising such a First Amendment claim, for the reasons discussed in section I, supra.

Conclusion

For the above stated reasons, we find that Williams waived any claim of error he might have raised concerning the trial court’s partial closure of the courtroom during jury selection, and that he lacks standing for those same reasons to assert that the closure was improper under the public’s First Amendment right to public trials. Accordingly we affirm the judgment of the trial court.

JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA, Judge, concur.

      . All statutory references are to RSMo 2000, unless otherwise noted.

      . At this point, the court interrupted Williams's counsel and asked him to speak up, stating, "We’re not doing anything in secret up here."

      . Williams argues that plain error review is applicable here, even though he advocated for closure of the courtroom during voir dire, just as it is applicable when a defendant challenges on appeal an erroneous jury instruction submitted by the defense at trial. While it may be that a defendant can obtain plain-error review of erroneous jury instructions even where the defendant himself submitted the challenged instructions, the situation here is different: as explained infra, a defendant can properly conclude that the exclusion of the public from the courtroom furthers his larger strategic interests in an unbiased jury and a fair trial. Williams apparently drew that conclusion here. There is no need in this context to relieve a defendant of the consequences of his own explicit strategic trial decisions.

      . Mere speculation regarding possible con-lamination of the jury pool is not enough.
        See Presley, 130 S.Ct. 721 (exclusion of defendant's uncle, the sole spectator, violated the Sixth Amendment where there had been no problems involving the uncle but the court feared that, because he would be seated near tbe potential jurors, he might intermingle with them); State v. Cuccio, 350 N.J.Super. 248, 794 A.2d 880 (2002) (chance that prospective jurors might be contaminated by die seating of those prospective jurors in die area of the courtroom where spectators were seated was not a sufficient basis to close the courtroom). Here the record reflects more than mere speculation that the presence of associates of the defendant and victim might have led to juiy contamination and thus interfere with defendant’s right to a fair trial. In light of prior communications between spectators associated with either die defendant or die victim and members of previous jury panels, the record reflects that the court was justified in its concern that juiy selection was likely to be prejudiced by the presence in the courtroom of excluded members of the public.

      . We note here that Williams's counsel's actions were sufficient to waive his public-trial right to this limited extent. Some rights of a criminal defendant, such as the right to a jury trial, and the right to testify on his own behalf, must be personally waived by the defendant — no action of his counsel can be seen to effect a waiver on his behalf. The right to a public trial, however, is one of the rights that counsel has the ultimate authority to either waive or advance. 3 Wayne R. LaFave, et al„ Criminal Procedure, § 11.6(a) (3d ed.2007); United States ex rel. Bruno v. Herold, 408 F.2d 125, 128-29 (2d Cir.1969).

      . The trial judge’s order, however, did not exclude the press from the courtroom.

      . "Obiter dicta, by definition, is a 'gratuitous opinion.' Muench v. South Side Nat'l Bank, 251 S.W.2d 1, 6 (Mo.1952). '[Statements ... are obiter dicta [if] they [are] not essential to the court's decision of the issue before it.’ Campbell v. Labor & Indus. Relations Comm'n, 907 S.W.2d 246, 251 (Mo.App. W.D.1995)." Richardson v. QuikTrip Corp., 81 S.W.3d 54, 59 (Mo.App. W.D.2002).

      . Momah and Strode were both handed down on October 8, 2009. In Momah, the Court held that the trial court’s closure of the courtroom to conduct individual voir dire of potential jurors without first weighing or making findings on the record regarding factors required by the Washington Supreme Court was not structural error because the trial court weighed the rights to a public trial and an impartial jury and chose closure to protect the defendant’s right to an impartial jury. 217 P.3d at 323-24. In Strode, the Court held that: (1) the defendant’s state constitutional right to a public trial was violated when the trial court conducted a portion of voir dire in chambers without first weighing the factors required by the Washington Supreme Court; and (2) the error was structural and prejudicial, thus requiring reversal and remand for a new trial. Strode, 217 P.3d at 312.

        Momah and Strode strongly suggest that Washington law on the issue of closure of voir dire is in a state of flux and is very fact-specific. They were both decided by a very divided Court. In Momah, six justices joined in the majority opinion (with one concurring separately), and three were in dissent. In Strode, six justices were in the majority (the three Momah dissenters and three others from the Momah majority, two of whom concurred separately), and three justices (all of whom were in the Momah majority) wrote in dissent.

      . See Appellate Court Case Summary, Case No. 820503, WASHINGTON COURTS, http:// dw. courts, wa.gov/index. cfm? fa=home, case summary & crt_itl_nu=A08 & casenum-ber=820503 & searchtyp e=aName & token=3E59DCB9BC0DFBED7AD599BF03 F959D9 & dt=0F01C799A256CC 6E8C4DDC74E 378CBC0 & courtClas-sCode=A & casekey=37073176 & court name= Supreme Court (last visited October 14, 2010).

      . We do not reach this issue here.

      . Finally, even assuming arguendo that Williams had standing to assert the public’s First Amendment right to a public trial and that the trial court was found to have violated the public’s rights, it is not clear that the remedy for the First Amendment violation would be a reversal of Williams’s conviction. See Press-Enter., 464 U.S. at 512-13, 104 S.Ct. 819 (not reversing the defendant’s conviction, but suggesting that the trial court, on remand, release any portions of the voir dire transcript that would not violate jurors' privacy); cf. Waller, 467 U.S. at 49-50, 104 S.Ct. 2210 (although decided on Sixth Amendment grounds and not a First Amendment case, the matter was remanded for a new suppression hearing only; if the second public suppression hearing did not result in suppression of additional evidence, the verdict from the first trial would stand).


author: GARY D. WITT, Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence E. NEAL, Appellant.
    No. WD 70607.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Ruth B. Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Lawrence Neal (“Neal”) was convicted after a jury trial of one count of forcible rape and one count of robbery in the first degree. Neal appeals the trial court’s overruling of his motions for judgment of acquittal as to both charges. Further, Neal argues the trial court plainly erred in submitting a deficient jury instruction for robbery in the first degree. We affirm in part and reverse in part.

I. Factual Background

Neal was convicted after a jury trial in the Jackson County Circuit Court of one count of forcible rape, Section 566.080, and one count of robbery in the first degree, Section 569.020. Neal was acquitted, by the jury, of one count of forcible sodomy, Section 566.060.

On January 14, 2008, K.L. drove her vehicle to pick up her boyfriend Benjamin Robbins (“Robbins”) from work when her car stalled at 82nd and Troost. Neal, a stranger, got into KL.’s vehicle uninvited. K.L. did not ask Neal to get out of the car because she was shocked and scared. K.L. agreed to give Neal a ride home. After arriving in Neal’s parking lot, he proceeded to take KL.’s keys out of the ignition, preventing her from leaving. Neal told K.L. he needed money, and he then proceeded to dump the contents of her purse onto the front seat of the vehicle. K.L. did not have any money and she could not recall the exact words said by Neal, but he told her she had to go up to the apartment. Neal grabbed KL.’s arm after she exited the car and led her up to the apartment. Neal told K.L., as they walked up to the apartment, “[i]f anyone asks, you’re my girlfriend and you smoke dope.” Neal led her past a “short white woman,” who looked to be angry with Neal, and into a bedroom.

Neal told K.L. to get undressed. She initially refused. Neal then told her she could leave if she did what he wanted. There was a knife on the night stand, and then Neal put something that appeared to be a gun on the dresser. Neal threatened to kill her. Neal then had sexual intercourse with K.L. K.L. testified she felt she had no choice in the matter. KL. did not fight off Neal because she did not want him to hurt her. She did not feel anyone would have helped her if she had screamed or asked for help.

After the sexual intercourse, Neal told K.L. he needed money and asked her for her ATM card. K.L. told him she did not have one but did have checks. He told her to go to Price Chopper to cash a check. Neal told K.L. “to act right” and “[d]on’t do anything stupid” as they walked toward the store. K.L. purchased some soda and wrote a check at Price Chopper for fifty dollars over the purchase price. K.L. gave the money to Neal when they arrived back in the vehicle. Neal told K.L. to go back to his apartment so that she could douche to get his DNA off of her.

K.L. drove back to the apartment, and once inside, Neal forced her to smoke crack. Neal attempted to have sexual intercourse with K.L. again but he could not maintain an erection. Neal then told her to perform oral sex on him, which she did. K.L. told Neal that she could get more money from her boyfriend when she picked him up from work. Neal told her that he would ride with K.L. Neal and K.L. agreed to tell KL.’s boyfriend, Robbins, that the vehicle had broken down and Neal was riding with K.L. to make sure it did not break down again.

When K.L. picked up Robbins two hours late from work, Neal was in the car. Robbins was upset, as he had been calling and texting K.L. After picking Robbins up, K.L. dropped Neal off at his apartment complex. K.L. discreetly gave Neal back his crack pipe, which was in her purse, because she knew Robbins would be angry if he saw the pipe. After Neal departed, Robbins inquired as to what was going on, and K.L. started to cry and told Robbins that she had been raped. They went home and Robbins called 911.

K.L. was examined at a hospital and Neal’s DNA was discovered from K.L.’s rape kit. Neal was tried before a jury and eventually sentenced to consecutive terms of thirty years incarceration for forcible rape and twenty-five years incarceration for first degree robbery. Neal now appeals.

II. Analysis

A. Forcible Rape

In Point One, Neal argues the trial court erred in overruling his motion for judgment of acquittal as to Count I for forcible rape, because the State’s evidence was insufficient for a reasonable juror to find guilt beyond a reasonable doubt as to each element of the crime because the State presented no evidence that Neal used forcible compulsion in connection with the sexual intercourse.

Standard of Review

When reviewing the sufficiency of evidence supporting a criminal conviction, the Court gives great deference to the trier of fact. Appellate 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. In applying this standard, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.

State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009) (internal quotation marks and citations omitted).

Analysis

Due process requires the State to prove each element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Bowman, 311 S.W.3d 341, 343 (Mo.App. W.D.2010). Neal was charged under Section 566.030 with forcible rape. Section 566.030 provides “[a] person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion.” “Forcible compulsion” means either “(a) Physical force that overcomes reasonable resistance; or (b) A threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person.” Section 556.061(12).

K.L.’s testimony does not directly establish that the sexual intercourse she had with Neal was the result of physical force. The State argues that the evidence supports the second factor of either an express or implied threat which caused K.L. to have a reasonable fear of death, serious physical injury, or kidnapping. Evidence of an explicit threat by Neal in connection with the rape was presented to the jury. There was evidence that Neal threatened to kill K.L. There was evidence that there was a knife on the nightstand and that Neal put something that looked like a gun on the dresser. K.L. testified that Neal took her into the apartment against her will and told her that she could not leave unless she did what he wanted. Therefore, a reasonable juror could have found beyond a reasonable doubt that Neal explicitly threatened K.L. and placed her in a reasonable fear of death, serious physical injury, or kidnapping.

A reasonable juror could also have found beyond a reasonable doubt an implied threat to K.L. that placed K.L. in reasonable fear of death, serious physical injury, or kidnapping. In State v. Thiele, the Eastern District of this court upheld a conviction of forcible rape when the victim submitted to the defendant’s sexual requests out of “fear of personal violence” in conjunction with minimal physical force that consisted of only grabbing the victim’s arm. State v. Thiele, 935 S.W.2d 726, 728 (Mo.App. E.D.1996). Although the court in Thiele found that the force used was sufficient for a jury to find physical force that overcame reasonable resistance, the court found further that the circumstances indicated that the victim was not a voluntary participant in the defendant’s fantasy. The defendant’s actions made the victim believe he had a gun, even though there was no express threat, and the victim’s actual belief that the defendant was armed was sufficient to find an implied threat to satisfy the element of “forcible compulsion.” Id. A reasonable belief of impending harm combined with some physical force is sufficient to sustain a conviction for forcible rape. Id.

Viewing the evidence in a light most favorable to the verdict, a reasonable juror could have found beyond a reasonable doubt that Neal’s actions constituted an implied threat that placed K.L. in a reasonable fear of death, serious physical injury, or kidnapping. Here, K.L. testified to the following: Neal was an uninvited stranger that forced his presence upon her by entering her vehicle without her permission; he took her keys from the ignition so she could not leave; he made it clear he was looking for money and dumped out her purse; he grabbed her arm and led her into the apartment; weapons were located in the bedroom; he threatened to kill her; and after resisting getting undressed, Neal told K.L. she could leave “if [she] just did what he wanted.” Considering the context and totality of events, a reasonable juror could have found both an express threat and that Neal’s actions constituted an implied threat that placed K.L. in a reasonable fear of death, serious physical injury, or kidnapping. This is sufficient to satisfy the statutory definition of “forcible compulsion.”

Point One is denied.

B. Robbery in the First Degree

1. Sufficiency of the Evidence

In Point Two, Neal argues the trial court erred in overruling Neal’s motion for judgment of acquittal for robbery in the first degree in that the State did not submit sufficient evidence to prove beyond a reasonable doubt all the elements of the offense.

Neal argues that there was not sufficient evidence to establish that he “forcibly [stole]” from K.L. “Forcibly steals” is defined as when, “in the course of stealing, [... ] he uses or threatens the immediate use of physical force upon another person for the purpose of [... ](b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.” Section 569.010(1). Second, Neal argues that the evidence adduced at trial was insufficient for a juror to find beyond a reasonable doubt that Neal “threatened] the immediate use of a dangerous instrument” in the course of the robbery.

Missouri courts consider not only the circumstances immediately surrounding the alleged robbery but events prior to the robbery to determine whether the elements of the offense are satisfied. The language “in the course of’ and “in the course thereof’ modify both the statutory definition of “forcibly steals,” the first element of first degree robbery, and the second element, “[u]ses or threatens the immediate use of a dangerous instrument against any person.” See Section 569.010(1); Section 569.020. Both phrases have been interpreted to mean that the entire course of the robbery must be considered to determine whether the elements have been satisfied.

Robbery in the first degree is committed when “in the course” of forcible stealing, a person is armed with a deadly weapon or uses or threatens the use thereof. “In the course” of forcible stealing is a broad term. It covers the whole transaction or occurrence. The statute does not state that during the actual taking of the property appellant must simultaneously display or threaten the use of a deadly weapon, but only that “in the course thereof’ defendant uses or threatens to use a weapon. As long as a weapon is used “in the course” of forcible stealing, the offense is robbery in the first degree.

State v. Yancy, 779 S.W.2d 712, 714-15 (Mo.App. E.D.1989) (citing State v. Burston, 684 S.W.2d 568, 569 (Mo.App.1985)); see also State v. Weems, 840 S.W.2d 222, 228 (Mo. banc 1992) (citing Yancy, 779 S.W.2d at 715 (“As used in the context of forcible stealing, ‘in the course of is a broad term, covering the whole transaction. So long as the fear or violence precedes or is contemporaneous with the taking, the offense of robbery is complete.”)) Thus, events prior to and contemporaneous with the robbery must be considered to determine whether the elements of the offense have been satisfied.

K.L. never saw Neal with a weapon in his hand at any point during the robbery. However, the entire course of events that night leading up to the robbery must be considered to understand KL.’s state of mind and to determine whether Neal made a threat to immediately use a dangerous instrument in the course of the robbery. See State v. Belton, 949 S.W.2d 189, 192-93 (Mo.App.W.D.1997) (quoting State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978) (“Robbery in the first degree may be found where the victim is in fear even though there was no real possibility of injury.”)); Lewis v. State, 24 S.W.3d 140, 144 (Mo.App. W.D.2000) (citing a series of cases which held “the State does not have to show that the defendant actually possessed a dangerous instrument, only that there was evidence from which the fact finder could reasonably conclude that the victim believed that the defendant was threatening its use.”) Therefore, the victim’s experience of the events as a whole must be considered in determining whether a threat to use a dangerous weapon was made in the course of the robbery.

The facts adduced at trial, viewed in a light most favorable to the verdict, support a finding beyond a reasonable doubt that Neal both “forcibly [stole]” and “threatened the immediate use of a deadly weapon or dangerous instrument” in the course of the robbery. The entire episode including Neal getting into KL.’s car uninvited, raping her and then taking her to the store to cash a check occurred in a matter of hours. Neal, before he got out of the car the first time, told K.L. he needed money and dumped out the contents of her purse. In the bedroom where the rape occurred, K.L. saw both a knife and what appeared to be a gun. Neal threatened to kill her. Neal told K.L. when going into the store to cash a check to “act right” and “[d]on’t do anything stupid” and that “he didn’t have anything else to live for.” K.L. handed the money over to Neal when they returned to the car. A reasonable juror could infer from these facts that forcing a female stranger up to one’s room where there are weapons in plain view, after telling her that he needed money, telling her he did not have anything to live for and raping her, is sufficient to constitute a threat against K.L. of physical force in order to coerce her into complying with his demand for money. Further, the presence of deadly weapons in the bedroom where he raped her is sufficient for a jury to infer that the presence of those weapons constituted a threat to use a dangerous instrument in the course of the robbery. The evidence was sufficient to find Neal guilty beyond a reasonable doubt of robbery in the first degree.

Point Two is denied.

2. Improper Jury Instruction

In Point Three, Neal argues that the trial court plainly erred in submitting Instruction # 9 for Count III, robbery in the first degree, in that the verdict director submitted to the jury failed to include a necessary element.

Standard of Review

Neal did not object to the use of the improper verdict director at trial and, therefore, requests that this court review the issue under plain error. “Instructional error is rarely plain error.... ” State v. Shockley, 98 S.W.3d 885, 891 (Mo.App. S.D.2003). To show plain error, Neal has the burden of proof to “ ‘establish that the trial judge so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice.’ ” State v. Vaughn, 11 S.W.3d 98, 105 (Mo.App. W.D.2000) (quoting State v. Hill, 970 S.W.2d 868, 872 (Mo.App. W.D.1998)). “A manifest injustice occurs as a result of instructional error where ‘it is apparent that the instructional error affected the jury’s verdict.’ ” Id. (quoting State v. McCoy, 971 S.W.2d 861, 864 (Mo.App. W.D.1998)).

Analysis

The trial court submitted the robbery in the first degree charge in Instruction # 9, MAI-CR 323.04, as it was submitted by the State and without objection by Neal. However, MAI-CR 323.04 is the verdict director for robbery in the second degree. The verdict director for robbery in the first degree is MAI-CR 323.02.

Both robbery in the first degree and robbery in the second degree share the common element of forcibly stealing property. See Sections 569.020; 569.030. What distinguishes robbery in the first degree and robbery in the second degree, is that robbery in the first degree also includes an additional element: that the Defendant “(1) Causes serious physical injury to any person; or (2) Is armed with a deadly weapon; or (3) Uses or threatens the immediate use of a dangerous instrument against any person; or (4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.” Section 569.020. The State alleges that the evidence established that in the course of the robbery Neal “threatened the immediate use of a deadly weapon or dangerous instrument.” The verdict director submitted to the jury did not contain this necessary additional element for robbery in the first degree as prescribed by Section 569.020.

A verdict director must contain each element of the crime charged and failure to comply with approved instructions constitutes error. See State v. Bradshaw, 26 S.W.3d 461, 472 (Mo.App. W.D.2000) (citing Rule 28.02(f)). “ ‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged.’ ” State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995) (quoting State v. Ward, 745 S.W.2d 666, 670 (Mo. banc 1988)).

The State argues that failure to include an element of an offense will not cause manifest injustice when either of two situations exist: 1) the other instructions make it clear that the jury found the missing element beyond a reasonable doubt or 2) where the element was not contested at trial.

The State’s argument — that because Neal’s primary defense was to attack KL.’s credibility and suggest that she was lying about what happened that evening, therefore, he was not contesting the allegation that he threatened to use a deadly weapon in connection with the robbery — strains the bounds of credibility. In short, Neal’s defense at trial was that K.L. was lying, consented to sexual intercourse that night, and there was no robbery. That defense necessarily implies he was contesting the allegation that he used a deadly or dangerous weapon against K.L. in connection with the robbery. We cannot find, as the State suggests, that when a defendant argues that the sex was consensual and no robbery occurred (i.e. that there was no crime), that, therefore, the defendant is not challenging that a deadly or dangerous weapon was used in connection with the crime. “[I]t would be ludicrous to require a defendant to dispute every element of the crime of which he is charged, when he claims that he did not commit the crime.” State v. Roe, 6 S.W.3d 411, 416 (Mo.App. E.D.1999).

The State’s next argument is that the instructions submitted must be considered as a whole, and, if the omitted language is either included in another instruction or where the facts to be found by another instruction demonstrate the jury necessarily found the facts supporting the conviction under the defective instruction, then manifest injustice has not been caused by the omission of the necessary element.

The State cites three cases in support of this proposition where Missouri courts have found omitted instructional errors inconsequential. In State v. Dismang, the statutory definition of “serious physical injury” was contained in a separate jury instruction at the end of the instruction pack rather than in the instructions themselves, and the court rejected the contention that the jury could have failed to understand the concept because there was little potential for confusing or misleading the jury. 151 S.W.3d 155, 164-65 (Mo.App. S.D.2004). In State v. Holt, a general instruction regarding the State’s burden of proof specifically stated it applied to all elements of the offenses charged, and therefore, failure to repeat that instruction with respect to a verdict director regarding a specific offense was not error. 592 S.W.2d 759, 776 (Mo. banc 1980). Finally, in State v. Livingston, the jury instructions contained superfluous words regarding the possible involvement of other persons in the offense, but because of the evidence presented at trial, the superfluous words would not have confused a reasonable juror, and therefore, the Supreme Court found no error. 801 S.W.2d 344, 349-50 (Mo. banc 1990). These cases cited by the State, however, do not support the State’s argument in the case at bar. None of those cases are apposite here where the court failed to instruct the jury as to a necessary element of the crime charged.

The State also relies on State v. Cooper in which the defendant was charged with escaping from confinement with an additional aggravator that he used a deadly or dangerous weapon to effect his escape. 712 S.W.2d 27, 29 (Mo.App. E.D.1986). The court failed to submit to the jury the element of whether the escape was effected by means of a deadly weapon or dangerous instrument. Id. at 30. The court in Cooper upheld his conviction because “[t]he jury also found defendant guilty of armed criminal action in effecting his escape, and, under the armed criminal action instruction, the jury necessarily found the escape was committed by using a dangerous instrument.” Id,, (emphasis added). Therefore, when the instructions were read together, any error that may have occurred was not prejudicial. Id.

Unlike the case at bar, the instructions when read as a whole in Cooper necessarily meant that the jury had found the omitted element. The State’s argument in the present case is that because the jury found forcible compulsion in the charge of rape, therefore they must have found the element of the use or threatened immediate use of a dangerous weapon in the robbery count. The State’s argument is flawed. A finding that forcible compulsion was used in the rape of K.L. does not, standing alone, require a finding that in the course of a subsequent robbery that he “use[d] or threaten[ed] the immediate use of a dangerous weapon against any person.” Section 569.020. There was evidence from which a reasonable juror could have found that a weapon was used in the rape but not used in the robbery, which occurred at a point in time after the rape was concluded.

“‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of offense charged.’ ” Doolittle, 896 S.W.2d at 30 (quoting Ward, 745 S.W.2d at 670). Here, the State’s use of an incorrect jury instruction “totally excused the State from its burden of proof as to a contested element of a crime” which is a “significant error.” Id. Although the Supreme Court of Missouri has not yet “determine[d] whether the failure to include a contested element of a crime in an instruction will always result in plain error,” the cases suggest that where an essential element is missing from the instruction, thereby lowering the State’s burden of proof, plain error is established. See e.g., Id. (holding that because the jury was not instructed to find that the defendant had used or threatened to use a dangerous instrument, and the instruction did not include a definition of a “dangerous instrument,” this constituted plain error because the jury could have found the defendant guilty without finding that he used a dangerous instrument); State v. Jones, 865 S.W.2d 658, 662 (Mo. banc 1993) (holding that that the failure to define possession in a verdict director, where “possession” is an essential element of the offense charged, is prejudicial error); State v. Farris, 125 S.W.3d 382, 392 (Mo.App. W.D.2004) (holding the failure to define “possession” in the verdict director for attempt to manufacture methamphetamine, where possession was an essential element of the crime, was plain error).

Even if every instance in which an element of an offense is omitted from a jury instruction is not plain error, “ ‘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.’ ” Farris, 125 S.W.3d at 394 (quoting State v. Harney, 51 S.W.3d 519, 533-34 (Mo.App. W.D.2001)). Here, there was evidence to place in serious dispute KL.’s claim that Neal threatened to use a dangerous instrument to forcibly rob her. There was a video from Price Chopper, which showed Neal and K.L. entering and exiting the store holding hands, no physical force was shown, and no weapons were visible. Neal’s defense was that K.L. consented to the entirety of events of that night. This court cannot say that a reasonable jury could have unanimously determined this contested issue when it was not submitted in the instruction. See id. Accordingly, although the evidence was sufficient to convict Neal of robbery in the first degree, the omission from the verdict-director of the additional element of “threatenfed] the immediate use of a dangerous instrument against any person” to convict Neal of first degree robbery resulted in manifest injustice and a miscarriage of justice.

Point Three is granted in part.

III. Remedy

We next turn to the appropriate remedy for the instructional error in Point III.

The general rule is that the remedy for instructional error is to remand the case for a new trial. State v. Whardo, 859 S.W.2d 138, 140 (Mo. banc 1993).

In a case of first impression addressing facts similar to those of the case at bar, the Eastern District of this Court found that the appropriate remedy was to remand the case back to the trial court allowing the State the option of retrying the defendant on all charges or accepting convictions for the lesser charges that were properly submitted to the jury and having the defendant resentenced by the trial court on those lesser charges. State v. Roe, 6 S.W.3d at 418. The Court in Roe based its holding on case law from other jurisdictions and policy considerations. The Court relied upon the principle that “[i]t is fundamental that the appellate remedy should extend no further than the scope of the wrong.” Id. at 417. The Court went on to note that the wrong in that case was that the trial court misdirected the jury as to the proper elements of the crime and, in spite of a vigorous defense, the jury convicted the defendant of the lesser included offenses. Because the defendant was given a full and fair opportunity to defend against the lesser included offenses but was still convicted, combined with the defendant’s failure to timely object to the improper instruction, the Court found that the remedy of a new trial exceeded the scope of the wrong and provided a windfall to the defendant. Id. at 417-418.

The procedural posture of Roe is somewhat unique, in that the case had been affirmed on direct appeal and it was not until several years later in a federal habe-as corpus action that the defendant first raised his claims of instructional error. After an order of the Eighth Circuit Court of Appeals, the Eastern District of Missouri recalled their original mandate and allowed the defendant to proceed on this appeal.

The Court in Roe does not indicate if the improper instruction was submitted by the State or by the trial court, but focuses on the Defendant’s failure to raise an objection to the improper instruction. The Court in Roe ignores the actions by the State in failing to ensure the trial court properly instructed the jury as to the crimes charged.

In the case at bar, there is no doubt from the record that it was the State that submitted the improper instruction, setting forth the elements of robbery in the second degree. This put Neal’s counsel in the awkward position of deciding whether or not to object to the State’s submission of a lesser offense than the crime charged.

The charge of robbery in the second degree, under Section 569.030, is a lesser included offense to the charge of robbery in the first degree under Section 569.020. State v. Hendricks, 675 S.W.2d 142,146 (Mo.App. E.D.1984). Neal did not object to the submission of instruction # 9 as MAI-CR 323.04, which set forth the elements of robbery in the second degree. An instruction for a lesser included offense must be given if there is any evidence from which a reasonable juror could find Neal did not commit the greater offense but could find him guilty of the lesser. State v. Smith, 229 S.W.3d 85, 92 (Mo.App. W.D.2007). Any doubt should be decided in favor of submitting the lesser included offense. Id.

While it was plain error to convict Neal of robbery in the first degree under instruction # 9, it was not error to convict him of the lesser included offense of robbery in the second degree. By not objecting to the instruction of the lesser included offense, Neal consented to the submission of this lesser charge under instruction # 9. As discussed in Neal’s Point Two on Appeal, the evidence was sufficient to support the jury’s finding beyond a reasonable doubt that Neal committed the offense of first degree robbery, which necessarily means that it was also sufficient to convict him of the lesser included offense of second degree robbery.

In borrowing the Eastern District’s analysis that the appellate remedy should not exceed the scope of the wrong, we cannot find that in this case the State should be granted a windfall for its error, in providing the improper instruction to the trial court, thereby allowing the State to retry the case hoping to convict Neal of the higher charge of robbery in the first degree. Likewise, Neal should not receive the windfall of a new trial based on his failure to object to the improper instruction. As in Roe, Neal did not receive a fair trial on the charge of robbery in the first degree based upon the improper instruction, but he did receive a perfectly fair trial on the charge of robbery in the second degree. Because Neal has been adjudicated a prior offender, the sentencing in this matter is for the judge and not the jury so, therefore, there is no issue as to Neal’s expectation of a jury assessing his punishment. Id. at 417.

This Court is mindful of the traumatic experience a trial is for a victim of rape and is reluctant to a grant a new trial if it can be justly avoided. The parties, the victims, the jurors and the citizens of the State have an interest in having cases fully and finally decided. Neither judicial economy nor the rights of the parties would be served by granting either party a new trial in this matter. Both parties consented to the submission of the lesser included offense of robbery in the second degree. Therefore, Neal should be properly sentenced for the crime for which he was properly convicted. See State v. Boyd, 91 S.W.3d 727 (Mo.App. S.D.2002) and Woolford v. State, 58 S.W.3d 87 (Mo.App. W.D.2001).

IV. Conclusion

Neal’s conviction of first degree robbery is reversed and remanded for the trial court to enter a judgment of conviction on robbery in the second degree and to resen-tence Neal on that charge, within the range of punishment for robbery in the second degree, based on his adjudication as a prior offender. Neal’s conviction of forcible rape is affirmed.

All concur.

      . The facts are recited in a light most favorable to the verdict. State v. Rutter, 93 S.W.3d 714, 720 (Mo. banc 2002).

      . All statutory citations are to RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . The victim K.L. is referred to by her initials in compliance with Section 566.226.

      . Neal argues this was a violation of his rights to due process of law and a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution.

      . In Thiele the conviction was for attempted forcible sodomy. However, the element of "forcible compulsion” is identical for both forcible sodomy and forcible rape. See Section 556.061.

      . State v. Roe, 845 S.W.2d 601 (Mo.App. E.D. 1992).