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State v. Simon

Court of Appeals of Missouri, Western District, First Division

June 27, 2017

STATE OF MISSOURI, Respondent,
v.
JUSTIN R. SIMON, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE JOEL P. FAHNESTOCK, JUDGE

          Before Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE.

         Justin R. Simon was charged as a prior and persistent offender in the Circuit Court of Jackson County with two counts of forcible rape, three counts of forcible sodomy, and one count of second-degree robbery. He was found guilty of all six counts and sentenced to a total of twenty-five years' imprisonment. Simon alleges two points on appeal. In his first point, Simon argues that the trial court violated his constitutional right against double jeopardy by allowing his retrial after his first trial ended in a mistrial. Simon's second point alleges that the trial court committed plain error by permitting the submission of two counts to the jury that he asserts had been dismissed by the State. Finding no error, we affirm the judgment of the trial court.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Simon's first trial began on November 2, 2015. During this trial, the State played for the jury a DVD recording of his interview with police that was to have been edited to remove reference to certain information encompassed within a pretrial ruling on a motion in limine. Because references to prior bad acts committed by Simon that were to be excluded pursuant to the motion in limine remained in the version played for the jury, Simon objected and moved for a mistrial. A mistrial was declared.

         Simon subsequently filed a motion to dismiss with prejudice, arguing that the mistrial was the result of prosecutorial conduct intended to provoke or goad Simon into requesting a mistrial and that his retrial was therefore barred by the Double Jeopardy Clause of the United States Constitution. The motion was denied.

         The case again went to trial before a jury beginning on December 15, 2015. The evidence established that Simon and another individual raped and robbed the female victim after meeting her on the street and offering to help her return to St. Joseph. After walking to an apartment building, Simon and the other individual convinced the victim to wait inside the doorway of the complex while they retrieved their car keys. Once inside, both men forced the victim into an upstairs apartment, locked the door, and ripped off her clothes. They played a pornographic video and told her to perform the acts depicted in the video, hitting her and threatening to kill her if she did not comply. Each man penetrated the victim's vagina, mouth, and anus with their penis, and Simon also put his mouth on the victim's vagina.[1]

         After completing these acts, the men forced the victim to bathe. During this time, Simon went to the living room where the victim's purse was located. The victim was later allowed to dress and was given her purse. She was missing her cash, credit card, iPad, and phone, all items that had been in her purse when she entered the apartment. She requested her phone so that she could get to her car, and the other man returned it to her. The victim and the two men left the apartment and walked for two or three blocks before they left the victim, threatening to kill her if she told anyone.

         The victim walked another block or two and then called 911. She told the responding officer that she had been raped by two unknown men in a nearby apartment. She was taken to the hospital, where a sexual assault exam was completed by a forensic nurse. A detective determined that the apartment belonged to Simon. The victim identified Simon as one of the rapists both in a photo array and in court. Additionally, a vaginal swab from the victim was positive for semen and matched Simon's DNA.

         During the instructions conference, the judge announced his view that the MAI forms required the name of the other perpetrator to be included in the verdict directors for the two counts against Simon alleging accomplice liability. Because the prosecutor was concerned that the State had not met its burden if the name of the other individual was required to be included, he considered dismissing the two accomplice-based charges. After a discussion about how dismissing those charges would affect the numbering and referencing of the remaining charges in the verdict directors, the State concluded it would not dismiss the two counts and all six counts were submitted to the jury without objection. Simon was convicted of all counts and sentenced to a total of twenty-five years' imprisonment.

         Additional facts are set forth throughout this opinion as necessary.

          II. DISCUSSION

         A. Mistrial

         Simon's first point on appeal alleges that the trial court erred in overruling his motion to dismiss and allowing the case to be retried after a mistrial ended the first trial. The mistrial was declared because the State failed to properly edit Simon's recorded statement consistent with a pretrial motion in limine ruling. Simon argues that his retrial was barred by the Double Jeopardy Clause of the United States Constitution because the State's failure to accurately edit the recording was for the purpose of provoking Simon into moving for a mistrial either after seeing the defense's strategy or out of fear that the jury was likely to acquit.

         Factual Background

         Prior to the first trial, Simon filed a motion in limine to exclude any evidence of: (1) Simon's prior warrants, arrests, or convictions; (2) any collateral crimes, wrongs, or misconduct by Simon, including those mentioned in a recorded statement to a detective referencing whether he was in a gang, that he was not supposed to be on Capital Inn property, that there were warrants against him, that he had been in prison, and his prior drug problems and offenses; and (3) his current or past custody status. The State ...


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