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State v. Feldt

Court of Appeals of Missouri, Eastern District, Fourth Division

March 7, 2017

STATE OF MISSOURI, Respondent,
v.
TREVOR C. FELDT, Appellant.

         Appeal from the Circuit Court of the City of St. Louis 1422-CRO1694-01 Honorable Robin R. Vannoy

          OPINION

          James M. Dowd, Presiding Judge.

         Trevor C. Feldt was found guilty after a bench trial in the Circuit Court of the City of St. Louis of two counts of the class B felony of possession of child pornography and was sentenced to two concurrent terms of five years in prison. Feldt appeals asserting five points of error: (1) that the trial court plainly erred by conducting a bench trial without first obtaining a constitutionally adequate waiver of his right to a jury trial; (2) that the court abused its discretion by allowing the State to file an amended information that Feldt claims charged in Count II a different offense than any charged in the earlier substitute information; (3) that the three-year statute of limitations for the class B felony of possession of child pornography had run and thus the amended information charged a time-barred offense in Count II; (4) that the court abused its discretion by denying his motion to suppress the evidence regarding his possession of a video of child pornography on a computer seized pursuant to a warrantless search of the basement of a friend's house in which Feldt had been residing for twelve days; and (5) that there was insufficient evidence to support his conviction on Count I of the class B felony of possession of child pornography. We reverse the judgment of the trial court and remand for a new trial consistent with this opinion.

         Factual and Procedural Background

         The Investigation

         In December 2010, a detective with the St. Louis Metropolitan Police Department's Cyber Crimes Unit, while conducting an undercover investigation, discovered an Internet Protocol (IP) address that had downloaded child pornography. The detective served on AT&T, the IP address's internet service provider, a subpoena for information about the IP address, and AT&T disclosed that defendant Feldt was the owner of the IP address.

         On May 5, 2011, another detective in the Cyber Crimes Unit contacted AT&T and discovered that the IP address remained active and was assigned to a residence on Tamm Avenue in the City of St. Louis. The detective determined that in the Missouri Department of Revenue's public records, the Tamm Avenue residence was listed as Feldt's address. So, on May 9, 2011, based on this information, the detective obtained a search warrant for the Tamm Avenue residence.

         On May 10, 2011, police officers executed the search warrant. They learned from the homeowner of the Tamm Avenue residence that Feldt had been living there but the homeowner required Feldt to move out about two weeks prior due to non-payment of rent and other issues. The homeowner allowed the officers into the residence and showed them electronics belonging to Feldt, including a computer (the "Tamm Avenue computer") that he had left behind at the residence, and also mentioned that Feldt had taken clothes and another computer with him when he left. The police seized the Tamm Avenue computer and other electronics.

         The officers then contacted Feldt, who agreed to accompany them to the Tamm Avenue residence. There Feldt was read his Miranda rights and agreed to speak with the investigating officers. Feldt told them that after he moved out of the Tamm Avenue residence, a friend, Todd Schaller, allowed Feldt to move into his home on Lami Street in the City of St. Louis. Feldt told the officers that his personal belongings at the Lami Street residence included the computer (the "Lami Street computer") he had taken with him when he left the Tamm Avenue residence.

         The officers told Feldt that detectives were on their way to Schaller's Lami Street residence and asked him whether they would find child pornography on the Lami Street computer. Feldt admitted that they would find child pornography on that computer. When the detectives arrived at Schaller's house, Schaller gave them consent to search the house including the basement where Feldt had been staying. There they seized the Lami Street computer and other electronics.

         Feldt was arrested and taken to the police station where he was again read his Miranda rights. During questioning regarding the seized computers, Feldt again waived his Miranda rights and made incriminating statements. Feldt told the detective that he owned the computers seized from the Tamm Avenue and Lami Street properties and that he had placed child pornography on both computers. Nearly three years later, in April 2014, a forensic examination of the computers conducted pursuant to a search warrant obtained on May 19, 2011, and bearing Feldt's signed consent as to the Lami Street computer, confirmed the presence of child pornography on both computers.

         Feldt's Prosecution

         On May 6, 2014, the State charged Feldt with two counts of the class C felony of possession of child pornography. The charging document alleged that on May 10, 2011, Feldt knowingly possessed a video of child pornography on the Tamm Avenue computer (Count I), and that he knowingly possessed child pornography in an unspecified format on the Lami Street computer (Count II).[1] On June 5, 2014, Feldt was indicted for the same criminal conduct by a grand jury.

         On May 18, 2015, the State filed a substitute information again charging Feldt with two counts of the class C felony of possession of child pornography, but this time in Count II, the State clarified that the child pornography on the Lami Street computer was a "video."

         On May 21, 2015, Feldt filed a motion to suppress his statements to the police and the evidence of child pornography obtained from his seized computers and electronics, including the evidence found on the Lami Street computer, which was seized pursuant to a warrantless search.

         On June 2, 2015, a bench trial was held. Before trial began, Feldt entered into a stipulation with the State "that the videos found on the HP Pavillion [sic] computer from [the Tamm Avenue residence] and on the Compaq Presario from [the Lami Street residence], were in fact child pornography of people less than eighteen years of age."

         Then the court addressed a lingering pretrial concern. The court noted that it had misgivings about the substitute information because it cited the wrong statute, § 573.035[2], which pertains to the crime of promoting child pornography, when Feldt was being charged with possession of child pornography. The court also stated that since the State was charging Feldt in both counts with possession of child pornography in video format in violation of § 573.037, the charges were class B felonies, not class C felonies as the substitute information provided. To resolve these issues, the court over Feldt's objection granted the State leave to amend the information, and the State orally amended the information to charge Feldt with two class B felony counts of possession of child pornography.

         At the close of the State's evidence, Feldt filed a motion for judgment of acquittal on Count I, asserting that the State failed to prove beyond a reasonable doubt that he had constructively possessed on May 10, 2011, the child pornography on the Tamm Avenue computer. The court denied this motion and took under submission Feldt's motion to suppress. Following the trial, the court overruled the motion on its merits, entered findings of fact and conclusions of law, and found Feldt guilty of both of the class B felony offenses charged in the amended information. The court sentenced Feldt to two concurrent terms of five years in prison. This appeal follows.

         Point I: The Denial of Feldt's Right to a Jury Trial

         In his first point on appeal, Feldt asserts that the trial court plainly erred by conducting a bench trial without first obtaining a constitutionally adequate waiver of his right to a jury trial. We agree.

         Standard of Review and Controlling Law

         We exercise our discretion to review for plain error only where the appellant asserting error establishes facially substantial grounds for believing that the trial court's error was evident, obvious, and clear, and that manifest injustice or a miscarriage of justice has resulted. Rule 30.20[3]; State v. Jones, 427 S.W.3d 191, 195 (Mo.banc 2014), A criminal defendant has the constitutional right to a trial by jury under the Sixth Amendment (enforceable against the States by virtue of the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145 (1968)), and under §§ 18(a) and 22(a) of Article I of the Missouri Constitution. Violation of the defendant's constitutional right to a jury trial constitutes manifest injustice under plain error review. State v. Williams, 417 S.W.3d 360, 364 (Mo.App.E.D. 2013); State v. Freeman, 189 S.W.3d 605, 613 (Mo.App.W.D. 2006) (citing State v. Cooper, 108 S.W.3d 101, 106 (Mo.App.E.D. 2003)).

         The right to a jury trial may be waived by the defendant with the consent of the trial court, provided that the waiver is knowing, voluntary, and intelligent. Williams, 417 S.W.3d at 362-63 (citing Mo. CONST, art. I, § 22(a)). "In felony cases such waiver by the defendant shall be made in open court and entered of record, " Rule 27.01(b), with "unmistakable clarity." Williams, 417 S.W.3d at 363 (citing State v. Baxter, 204 S.W.3d 650, 653 (Mo.banc 2006)). In the absence of an unmistakably clear waiver in a felony case, remand for a new trial is justified under plain error review. See State v. Beam, 334 S.W.3d 699, 704 (Mo.App.E.D. 2011) (citing Freeman, 189 S.W.3dat609).

         The State's Waiver Argument

         Here, the State points to four facts to support its argument that the record shows with unmistakable clarity that Feldt knowingly, voluntarily, and intelligently waived his right to a jury trial: (1) counsel wrote in a motion filed with the trial court that on May 13, 2015, the State and defense agreed to advance the case for a bench trial the week of June 1, 2015; (2) the case's docket sheet reflected that the case was accelerated to the June 1 docket for a bench trial; (3) after being found guilty and sentenced, Feldt testified that before trial he had discussed with counsel whether to have a jury trial; and (4) Feldt did not until he appealed object to having a bench trial.

         While these references support the conclusion that Feldt may have been aware that a bench trial was planned in his case, the issue before us is whether the record evinces with unmistakable clarity that Feldt was aware of and waived his constitutional right to a jury trial. We find no such awareness or waiver in the record.

         Applicable Case Authorities: Williams, Freeman, and Beam

         Three recent Missouri cases, Williams, Freeman, and Beam, support the conclusion that the record here fails to establish that Feldt waived his right to a jury trial.

         In Williams, All 417 S.W.3d at 363, this Court concluded that the record must show "something more" than a "bare assertion by counsel" that the defendant was waiving his right to a jury trial, because otherwise it is not unmistakably clear that the defendant waived the right. Here, the first fact cited by the State-that counsel wrote in a motion that Feldt had agreed to advance the case for a bench trial-is at most a "bare assertion by counsel" that Feldt would waive his right to a jury trial, since Feldt did not sign the motion or otherwise indicate his personal intention to waive the right.

         In Freeman, 189 S.W.3d at 610, defendant's counsel wrote in a motion that a bench trial had been scheduled. The court held, however, that the fact that counsel may have waived a jury trial did not demonstrate with unmistakable clarity that the defendant knowingly, voluntarily, and intelligently waived his right. Id. The court also held that it was insignificant that docket sheets showed that a bench trial was scheduled because the sheet did not evidence that the defendant had personally waived his right to a jury trial. Id. And the court determined that it was of no moment that the defendant failed until his appeal to object to having a bench trial, since neither the trial court nor anyone else addressed in open court, on the record, and in the presence of the defendant whether he was waiving his right to a jury trial. Id. at 610-11. We find that the Freeman court's conclusions apply with equal force to the similar facts cited here by the State.

         Finally, in Beam, 334 S.W.3d at 705, this Court held that the fact that counsel may have requested a bench trial in the defendant's presence, without more, did not demonstrate with unmistakable clarity that the defendant knowingly, voluntarily, and intelligently waived her right to a jury. This Court based its holding on findings that the defendant was never questioned about her understanding of her right to a jury trial or her waiver of such right, by either her counsel or the trial court; that the term "waiver" was never used in the defendant's presence on the record; and that the record contained no evidence that any attempt was made to determine whether the defendant understood the implications of a "bench" trial with respect to her right to a trial by jury. Id.

         The ...


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