Court of Appeals of Missouri, Southern District, First Division
APPEAL fro THE CIRCUIT COURT OF DUNKLIN COUNTY. Honorable Benjamin F. Lewis, Judge.
For Appellant: Jeannette L. Igbenebor.
For Respondent: Chris Koster & Gabriel E. Harris.
DANIEL E. SCOTT, J. - OPINION AUTHOR. JEFFREY W. BATES, J. - CONCURS. WILLIAM W. FRANCIS, C.J./P.J. - CONCURS.
DANIEL E. SCOTT, J.
Chris Renn was convicted of statutory sodomy in a court-tried case. He claims error in holding a bench trial, alleging that he never validly waived his right to jury trial in open court or on the record. We affirm the conviction.
Renn's case was set for a jury trial on November 29, 2010, with a motion hearing on October 18. On the motion date, Renn, his attorney, and the state signed a two-page agreement wherein Renn waived jury trial, would take a polygraph exam, and would plead to ten years if he failed the exam, but if he passed it, the case could be dismissed. Also that day, to quote Renn's brief, " defense counsel and the state appeared before the trial court, and the case was set for a bench trial on November 29, 2010," the date previously set for jury trial.
Renn failed the polygraph, but instead of pleading guilty, he moved for a jury trial. The state opposed this and filed the October 18 agreement. The court denied Renn's motion and set a new bench trial date.
Over the next eleven months, Renn filed three more motions to withdraw, quash, or otherwise negate his jury trial waiver. None succeeded. Ultimately, Renn was bench tried and convicted.
Claim and Analysis
Renn's sole point on appeal is quite narrow. It does not challenge the sufficiency of the evidence or any ruling or action during the trial itself. It does not allege that Renn's jury trial waiver was not " knowing, voluntary, and intelligent" or not sufficiently clear. See State v. Baxter, 204 S.W.3d 650, 653 (Mo. banc 2006). It does not claim the trial court abused its discretion in denying Renn's request to withdraw his waiver. See State v. Richardson, 313 S.W.3d 696, 700 (Mo.App. 2010).
Rather, Renn's sole point alludes to Rule 27.01(b)'s requirement that a felony defendant's jury trial waiver " be made in open court and entered of record" and charges that neither of these occurred. The state correctly observes that this particular claim, never raised in the trial court, is not preserved for appellate review. State v. Higginbotham, 765 S.W.2d 352, 356 (Mo.App. 1989). At ...