STATE v. KAP (2026)

Kam Kap (Kap) appeals the judgment of the Circuit Court of Cass County (trial court) convicting him, after a jury trial, of the unclassified felonies of statutory rape in the first degree and statutory sodomy in the first degree. Kap raises one point on appeal challenging the trial court's refusal to allow his defense counsel to inform the jury during his penalty phase closing argument that, under Missouri law, Kap's sentences were required to run consecutively. We affirm.

Factual Background 1

A grand jury indicted Kap with one count of first-degree statutory rape and one count of first-degree statutory sodomy for events occurring on February 3, 2023, and one count of first-degree statutory rape and one count of first-degree statutory sodomy for events occurring on February 21, 2023. Both counts involved Victim, a child less than fourteen years old.

The case proceeded to a jury trial. Viewing the evidence in the light most favorable to the verdicts,² the evidence adduced at trial showed the following:

In February 2023, Victim was twelve years old and in seventh grade. Victim met Kap, who was twenty-two years old, online through the Wizz application and she also communicated with him on Snapchat. Victim initially told Kap that she was seventeen years old, but within one to two weeks (and before they met in person), she told him that she was actually twelve years old. Victim knew Kap was twenty-two years old. Kap told Victim to lie and tell others that he was fifteen or sixteen years old.

Victim first met Kap in person at a hotel near her home in Raymore, Missouri, where they “hung out [and] had sex.” Victim testified that they had sexual intercourse and that he put his fingers in her vagina. They returned to the same hotel three different times, and the same sexual acts occurred each time. At some point, Victim told her sister that her “boyfriend” was twenty-two years old, and her sister then called the police.

Victim participated in a forensic interview and the recording of that interview was played for the jury. During the interview, Victim described how she met Kap online, that he knew how old she was, and that they met more than once at a hotel where they had vaginal intercourse and Kap put his fingers in her vagina.

Police interviewed Kap at his residence in Canehill, Arkansas, around three to three-and-a-half hours away from Raymore, Missouri. Kap said that he met Victim online and that he learned “early on” that she was twelve years old. Kap admitted that he was concerned about getting in trouble because of their age difference. Kap admitted that they met in person three to five times and that they had sex at least twice. Kap said they had vaginal intercourse, oral sex, and that he put his fingers in Victim's vagina.

Police located two hotel room reservations under Kap's name with an associated scan of an Indiana driver's license with his picture, for February 3 and February 21, 2023, with check outs the next day. Police obtained a video from Kap's Facebook account showing Victim and Kap together on a bed in a room resembling a hotel. Snapchat data from Kap's account was also obtained which included a video of Kap and Victim together with a file name date of February 3, 2023, in a hotel setting.

The jury found Kap guilty on the first-degree statutory rape and first-degree statutory sodomy counts for the February 21, 2023, events, but not guilty on the first-degree statutory rape and first-degree statutory sodomy counts for the February 3, 2023, events.

Before the penalty phase began, the State asked the trial court to prohibit Kap's defense counsel from informing the jury that the trial court was required to run Kap's sentences consecutively to each other under section 558.026.1.³ Defense counsel argued that because the trial court was required to impose consecutive sentences the jury should be aware of this to properly evaluate the case and make its sentencing recommendation. The trial court disagreed, and it prohibited defense counsel from informing the jury about the mandatory consecutive sentencing requirement for Kap's convictions. The jury was properly informed by Instruction No. 18 that the range of punishment for each offense was life imprisonment or a term of years not less than five years.

The jury recommended twenty years on the statutory rape count and five years on the statutory sodomy count. The trial court imposed the sentences recommended by the jury, and, pursuant to section 558.026.1, it ordered the sentences to run consecutively to each other.

Kap appeals.

Standard of Review

Preserved claims of alleged errors in closing argument are reviewed for an abuse of discretion. State v. Holmsley, 554 S.W.3d 406, 410 (Mo. banc 2018); State v. O'Keefe, 681 S.W.3d 615, 629 (Mo. App. E.D. 2023). “An abuse of discretion occurs when a defendant is prejudiced such that there is a reasonable probability that the outcome at trial would have been different if the error had not been committed.” Holmsley, 554 S.W.3d at 410 (internal quotation marks and citation omitted).

Analysis

In his sole point on appeal, Kap argues that the trial court abused its discretion when it prohibited his defense counsel from informing the jury during his penalty phase closing argument that Kap's sentences for statutory rape in the first degree and statutory sodomy in the first degree were required to run consecutively pursuant to section 558.026.1. Kap argues that this prohibition violated due process and his right to a fair trial because it affirmatively misled the jury about Kap's actual punishment exposure and that the prohibition skewed the jury's “weighing” process.

“Though a trial court's imposed sentence on a particular count cannot exceed the term of sentence for that count declared by the jury, ‘[a] trial court has discretion to determine if sentences should run concurrently or consecutively.’ ” State v. Winters, 623 S.W.3d 746, 755 (Mo. App. W.D. 2021) (quoting State v. Williamson, 836 S.W.2d 490, 500 (Mo. App. E.D. 1992)). Under section 558.026.1, however, trial courts are required to run multiple sentences for certain sex offenses, including, as in this case, first-degree statutory rape and first-degree statutory sodomy, consecutively. § 558.026.1(1); see also State v. Cruz-Basurto, 581 S.W.3d 51, 59 (Mo. App. W.D. 2019).

Missouri law does not allow for the injection of the issue of consecutive or concurrent considerations into jury deliberations. In State v. Atkeson, 255 S.W.3d 8, 11-12 (Mo. App. S.D. 2008), the Court rejected a defendant's claim that the trial court plainly erred by not directly answering a jury question of whether a defendant's sentences would run “together or seperate [sic].” The Court acknowledged that the Missouri Approved Instructions-Criminal (MAI-CR) that apply to bifurcated trials does not contain a jury instruction on consecutive or concurrent sentencing, and, the trial court would have committed error if it had directly answered the jury's question. Id. at 11. Section 557.036 only requires that the jury be instructed as to the range of punishment for each offense.⁴ Id. Section 557.036 also lists the evidence that can be presented during the penalty phase supporting or mitigating the punishment to be assessed. Collateral matters, such as parole or probation eligibility, suspended sentences and other forms of judicial clemency, are outside the jury's proper realm of consideration. Id. Whether a trial court “chooses to impose consecutive or concurrent sentences is similar in nature to these types of collateral matters” and the trial court “does not plainly err by refusing to allow the jury to become involved in a matter that is reserved for the trial judge's determination.” Id. at 11-12. The fact that section 558.026 requires the trial court to impose consecutive sentences for certain sex offenses does not change this.

In State v. Garbe, a defendant argued that the trial court abused its discretion in sentencing him to consecutive sentences because the jury was not informed of the trial court's right to order consecutive rather than concurrent sentences, and, the defendant maintained that the “obvious intent of the jury was to be lenient” with defendant. 740 S.W.2d 266, 268 (Mo. App. W.D. 1987). The defendant conceded that a trial court has discretion to determine if sentences should run concurrently or consecutively. Id. This Court denied the defendant's claim, stating that he “provide[d] no authority for his argument that it was error for the trial court to not inform the jury of the court's right to order consecutive sentences.” Id. at 269.

Under Missouri's penalty-phase framework, the trial court must inform the jury of the statutory sentencing range and the jury's role is to recommend a punishment within the authorized statutory range for each count. See § 557.036.3. Here, the trial court properly instructed the jury as to the range of punishment for the offenses, as required by section 557.036, and the jury recommended sentences for the offenses within the statutory ranges. In fact, the jury recommended the minimum sentence that could be imposed on the first-degree statutory sodomy count.

Kap cites United States Supreme Court cases including Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), to support his position that a sentencing decision must rest on materially accurate information about the punishment being imposed, and he argues that exclusion of information about mandatory consecutive sentencing affirmatively misled the jury about his actual punishment exposure. The concern of the Supreme Court in these cases cited by Kap focused on the issue of whether the jury was misled by arguments of future dangerousness of the defendant in death penalty cases. In Simmons and Kelly, the United States Supreme Court addressed due process in the context of capital sentencing, holding that when a defendant's future dangerousness is argued and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of parole, due process requires the sentencing jury be informed of the defendant's parole ineligibility, in other words, the fact that he or she will never be released. 512 U.S. at 161-63, 114 S.Ct. 2187; 534 U.S. at 251-58, 122 S.Ct. 726. This constitutional concern—preventing jury confusion about future dangerousness when the alternative to death is life without parole—is not present in non-capital mandatory consecutive sentencing situations such as Kap's. These cases are simply not analogous to the situation here and we are unpersuaded by Kap's attempt to label mandatory consecutive sentencing as the “functional equivalent” of “no release for decades.”

The mandatory nature of the consecutive sentence makes no difference to the result reached here. When not mandatory, the judge still has the discretion and authority to run a sentence consecutively, and caselaw is clear that it is not a subject for the jury.

The trial court did not abuse its discretion in prohibiting defense counsel from informing the jury during his penalty phase closing argument that Kap's sentences were required by statute to run consecutively.

Kap's sole point on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

2.   State v. Wallace, 725 S.W.3d 112, 115 (Mo. App. W.D. 2025).

3.   Statutory references are the RSMo (2016), as amended.

4.   Section 557.036.3 provides, in part:If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the offense upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant.

Janet Sutton, Presiding Judge

Lisa White Hardwick and W. Douglas Thomson, JJ. concur.