Court of Appeals of Missouri, Western District, First Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE JOEL P. FAHNESTOCK, JUDGE
Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and Edward
R. Ardini, Jr., Judge
R. ARDINI, JR., JUDGE.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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
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.
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.
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.
facts are set forth throughout this opinion as necessary.
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.
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 ...