STATE OF MISSOURI v. ALDO JAVIER MUNGUIA HERNANDEZ (2026)

Aldo Munguia-Hernandez (“Appellant”) appeals his convictions for the class A misdemeanors of domestic assault in the fourth degree and invasion of privacy. See RSMo 565.076; 565.252.¹ In one point, he asserts the trial court abused its discretion by denying his motion for a mistrial after the prosecutor commented in closing argument that “beyond a reasonable doubt wasn't 87 percent probability.” Finding no error, we affirm.

Factual and Procedural History

Appellant and his wife (“Wife”) were married for thirty years at the time of the events at issue in this case. According to Wife, she and Appellant had been separated for ten years at the time of the events.

Appellant stayed at Wife's home at times even though they were separated. One night Appellant recorded Wife on his phone while she was in the shower despite her protests. Appellant repeatedly threatened Wife he would publish the video of her in the shower if she tried to get a restraining order against him. In the following days, Wife told Appellant to leave the house and not come back. Appellant then grabbed Wife by the hand and attempted to force her to watch a video of himself having intercourse with another woman. Wife pulled herself away and retreated to their daughter's bedroom. Appellant kicked the door open, and Wife called the police. Police arrived, and after speaking to both parties, arrested Appellant. Thereafter, Appellant was charged with burglary in the first degree (Count 1), domestic assault in the fourth degree (Count 2), and invasion of privacy (Count 3).

At trial, Wife testified consistently with the above account. The State also offered the video recording and the testimony of the two officers on the scene. Appellant did not testify.

During closing arguments, the prosecutor stated:

To find [Appellant] guilty, you just have to believe beyond a reasonable doubt, which is defined to you as firmly convinced. What firmly convinced means is for you to decide.

We're humans. We don't have, like, 87 percent probability. Like, that's not how it works.

Appellant's counsel objected and moved for a mistrial, arguing the prosecutor improperly defined reasonable doubt. The trial court overruled the motion.

The jury found Appellant not guilty of burglary (Count 1), but found him guilty of domestic assault (Count 2) and invasion of privacy (Count 3). The trial court sentenced him to consecutive jail terms totaling ninety days.

Standard of Review

“This Court reviews alleged errors during closing argument for abuse of discretion.” State v. Holmsley, 554 S.W.3d 406, 410 (Mo. banc 2018). “The trial court has a duty to restrict arguments that misstate the law.” State v. Campbell, 600 S.W.3d 780, 795 (Mo.App. 2020). “[T]he decision to grant or deny a mistrial is a drastic remedy, and we afford the trial court great discretion in evaluating the circumstances to determine whether another remedy will sufficiently cure the alleged error.” State v. Bailey, 597 S.W.3d 436, 444 (Mo.App. 2020). “Improper closing argument will not support reversal ․ unless the error is prejudicial. To be ‘prejudicial,’ the improper argument must have had ‘a decisive effect on the jury's determination.’ ” State v. Muhammad, 478 S.W.3d 468, 472 (Mo.App. 2015) (internal citations omitted).

Discussion

Appellant argues that the prosecutor's statements during closing argument implied to the jury “a high level of scrutiny was not required or reasonable for the ‘human’ jurors,” and diminished the State's burden of proof. This argument is not supported by the record.

It is true “[a]rguments by prosecutors attempting to define reasonable doubt represent reversible error.” State v. Thurmond, 616 S.W.3d 316, 322 (Mo.App. 2020). “An attorney is free to discuss reasonable doubt during closing arguments, but he cannot attempt to define reasonable doubt.” Campbell, 600 S.W.3d at 795 (internal quotation marks omitted). However, “brief remarks purporting to define ‘reasonable doubt,’ although improper, do not result in reversible error so long as counsel does not unduly dwell upon the definition.” State v. Williams, 659 S.W.2d 778, 782 (Mo. banc 1983). “[W]hen the jury is provided with the correct trial court instructions giving the definition of reasonable doubt it cures any harm from an erroneous statement of reasonable doubt by the prosecutor.” State v. Green, 307 S.W.3d 197, 202 (Mo.App. 2010).

The prosecutor's statement, while inartful, did not rise to the level of reversible error. The State referenced the proper standard, informing the jury that proof beyond a reasonable doubt required them to be firmly convinced of Appellant's guilt. The additional remark regarding “87 percent probability” was brief and not emphasized.

Moreover, we assume the jury obeyed the trial court's directions and followed its instructions. Muhammad, 478 S.W.3d at 479. Pursuant to MAI-CR 4th 404.02, the trial court properly instructed the jury on reasonable doubt with Instruction Number 4. Instruction Number 4 defined reasonable doubt as follows:

This presumption of innocence places upon the State the burden of proving beyond a reasonable doubt that [Appellant] is guilty.

A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of [Appellant]’s guilt. The law does not require proof that overcomes every possible doubt.

If after your consideration of all the evidence you are firmly convinced that [Appellant] is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.

See MAI-CR 4th 404.02.

Because the court provided the proper instruction to the jury, the prosecutor's brief remark during closing arguments did not prejudice Appellant.² Green, 307 S.W.3d at 202. Thus, the trial court did not abuse its discretion in denying Appellant's motion for mistrial. Muhammad, 478 S.W.3d at 472. Appellant's sole point is denied.

Additionally, we note the written judgment of the trial court reflects Appellant was sentenced to thirty days as to “Count 1” and sixty days as to “Count 2.” However, when the court read the jury's verdict at trial, Appellant was acquitted on Count 1, burglary in the first degree, and found guilty on Count 2, domestic assault in the fourth degree, and Count 3, invasion of privacy.

“The written sentence and judgment of the trial court should reflect the oral pronouncement of sentence.” State v. Turner, 609 S.W.3d 92, 101 (Mo.App. 2020) (internal quotation marks omitted). “If the written judgment and oral pronouncement materially differ, the oral pronouncement controls.” State v. Bittick, 727 S.W.3d 166, 173 (Mo.App. 2025). “Errors of this nature are ‘clerical’ and may be corrected nunc pro tunc.” State v. Pierce, 678 S.W.3d 115, 125 (Mo.App. 2023).

Accordingly, we remand this case to the circuit court for entry of a written judgment which corrects the clerical error and conforms to the oral pronouncement of the sentences. In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to RSMo 2017, including, as applicable, statutory changes effective August 28, 2017.

2.   Appellant argues in his brief, “there was not overwhelming evidence of [Appellant's] guilt in his case,” but only disputes evidence related to the burglary charge. The jury's verdict, acquitting Appellant of the burglary charge while convicting him of the remaining offenses, undermines his claim of prejudice. This mixed verdict reflects that the jury carefully considered the State's burden and was not misled.

BECKY J. WEST, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS JACK A. L. GOODMAN, J. – CONCURS