New Trial for Convicted Child Molester in Mo.

JEFFERSON CITY, Mo. (CN) - A man convicted of molesting his stepsons will get a new trial, the Missouri Supreme Court ruled.

Thomas Ess' two stepsons testified at his original trial, detailing various acts of sodomy between 1995 and 2003. Ess was convicted by a Monroe County jury of two counts of first-degree sodomy, two counts of second-degree sodomy and one count of first-degree child molestation.

Ess appealed claiming juror misconduct, instructional error and insufficient evidence to support two of his convictions.

The Missouri Supreme Court found that one juror in Ess' trial committed misconduct and the trial court abused its discretion in failing to order a new trial.

"Upon complete consideration of the entire voir dire examination, the record clearly demonstrates Juror No. 3 intentionally failed to disclose material information," Judge George W. Draper III wrote in the majority opinion. "Specifically, Juror No. 3 formed an opinion concerning the outcome of the trial that would have disqualified him from serving on the jury before hearing any evidence."

Chief Justice Mary R. Russell along with Judges Patricia Breckenridge, Laura Denvir Stith and Richard B. Teitelman concurred.

Judges Paul C. Wilson and Zel M. Fischer dissented.

"Any argument that this Court should presume Juror No. 3 was biased against Ess is circular," Wilson wrote. "To be clear, bias will be presumed when a venireperson intentionally fails to disclose certain facts. But such a presumption does not arise unless and until the claimant proves an intentional nondisclosure of those facts in the first instance. Accordingly, Ess cannot rely on a presumption that Juror No. 3 was biased in order to prove that Juror No. 3 failed to disclose he was biased."

All seven judges agreed that the state did not present enough evidence to support Ess' conviction of child molestation.

"This Court holds the state failed to present sufficient evidence that Ess attempted to commit first-degree child molestation against B.L. as alleged in count V," Draper wrote. "The evidence adduced at trial demonstrated that, when B.L. was five years old, Ess came into B.L's bedroom, laid down behind him, and Ess placed B.L.'s hand on top of Ess's penis over his clothing. Ess instructed B.L. to 'hold it between his legs while I slept.' B.L. did as instructed, despite stating he was uncomfortable, and later fell asleep. When he awoke, Ess had left the room. This evidence was not strongly corroborative of Ess's purpose to complete the offense of first-degree child molestation, which at the time required skin-to-skin contact by touching underneath the clothing."

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