Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis
1422-CRO1694-01 Honorable Robin R. Vannoy
M. Dowd, Presiding Judge.
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.
and Procedural Background
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.
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.
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
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.
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
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.
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). On June 5, 2014, Feldt was indicted for
the same criminal conduct by a grand jury.
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."
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.
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."
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, 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.
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.
I: The Denial of Feldt's Right to a Jury Trial
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.
of Review and Controlling Law
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; 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)).
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).
State's Waiver Argument
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.
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.
Case Authorities: Williams, Freeman, and Beam
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
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.
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.
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.