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State v. Simms

Court of Appeals of Missouri, Western District, First Division

October 11, 2016

STATE OF MISSOURI, Respondent,
v.
LARRY DONNELL SIMMS, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Robert Michael Schieber, Judge

          Before Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          ANTHONY REX GABBERT, JUDGE.

         Larry Donnell Simms appeals the circuit court's judgment finding him guilty of one count of domestic assault in the first degree, armed criminal action, unlawful use of a weapon, domestic assault in the second degree and assault in the third degree. Simms raises two points on appeal. In his first point on appeal, Simms argues that the circuit court failed to ascertain his waiver of jury trial on the record in open court as required by both the Missouri and the United States Constitutions. First, Simms argues that because his blindness and advanced glaucoma rendered him unable to read the waiver of the right to a jury trial form which was signed and presented to the trial court, he did not knowingly, voluntarily, and intelligently waive his right to a jury trial. Next, Simms argues that the trial court exceeded its jurisdiction and violated his due process right to be notified of his charges by finding him guilty of the class A felonies of domestic assault in the first degree and armed criminal action. We affirm.

         Statement of Facts

         Because Simms does not allege that there was insufficient evidence to support his convictions, it is not necessary to recite the facts of the offenses here, other than noting that Simms contended at trial that he acted in self-defense.

         On May 12, 2014, Simms was charged, as a prior and persistent offender, with the following: one felony count of domestic assault in the first degree, one felony count of armed criminal action, one felony count of domestic assault in the second degree, one felony count of unlawful use of a weapon and one misdemeanor charge of assault in the third degree. On August 21, 2014, Simm's attorney filed a waiver of right to jury trial with the court. It read: "[d]efendant has discussed his Constitutional rights to a jury trial with counsel and has determined it to be in his best interests to waive said rights and try to the matter to the Court." The waiver was signed by both Simms and his attorney.

         The case was called for bench trial on September 9, 2014. When the court asked for appearances, defense counsel noted on the record that Simms was present, appearing in person. The court then proceeded with the following exchange:

THE COURT: "We are here for a bench trial correct?"
DEFENSE COUNSEL: "Correct, Your Honor."
THE COURT: "Are we ready to proceed?"
DEFENSE COUNSEL: "Yes, Your Honor."

         At the conclusion of the bench trial, Simms was found guilty of all five counts and subsequently sentenced to eighteen years imprisonment. Simms appeals.

         Standard ...


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