Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Jackson County, Missouri The
Honorable Charles H. McKenzie, Judge
Before: Cynthia L. Martin, Presiding Judge, and James Edward
Welsh and Karen King Mitchell, Judges.
King Mitchell, Judge.
Anderson appeals, following a jury trial, his convictions of
first-degree assault, § 565.050,  first-degree
burglary, § 569.160, and two counts of armed criminal
action, § 571.015, for which he was sentenced as a
persistent offender to a total term of eighteen years'
imprisonment. Anderson raises four points on appeal: (1) a
double jeopardy violation based upon his convictions for two
counts of armed criminal action arising out of the same
transaction; (2) error in the exclusion of impeachment
evidence; (3) error in failing to secure an on-the-record
waiver of Anderson's right to testify; and (4)
instructional error in the verdict director for first-degree
burglary. Finding no error, we affirm.
April 21, 2015, around 2:30 a.m., Donald Walker awoke to a
knock on the front door of his home in Jackson County,
Missouri. Walker got out of bed, turned on some lights, and
headed toward the front door, asking, "Who is it?"
He opened the blinds on the window of his front door and saw
his friend Elzadie (Zada) Dyer. Dyer asked Walker if his
brother was there, and Walker told her that he was not. At
that point, Anderson (whom Walker knew to be Dyer's
boyfriend but whom Walker had not initially seen upon looking
out the window) stepped around from behind Dyer and told
Walker, "I got something for you, man." Anderson
then kicked in the door, as Walker fled to his bedroom to
retrieve a handgun. Walker also immediately called 911 to
report the home invasion. While Walker was trying to get his
handgun, he heard Anderson enter the home and saw Anderson
begin shooting down the hallway toward Walker. Walker
returned fire, but his gun jammed, so he then retrieved a
shotgun he also kept in his bedroom, and he fired it twice in
Anderson's direction. Walker was unsure whether anyone
was still in the home, so he picked up his handgun and began
to walk out into the living room. By that time, police had
arrived and instructed Walker to put down his weapon, which
advised the police that Dyer and Anderson, and possibly a
third person, had broken into his home and shot at him.
Walker later identified both Dyer and Anderson in
photographic lineups. Anderson was subsequently arrested and
charged, as a persistent offender, with first-degree assault,
first-degree burglary, and two counts of armed criminal
action, all under the theory that he was either acting alone
or with another. At trial, a jury found Anderson guilty as
charged, and the trial court sentenced him, as a persistent
offender, to concurrent terms of eighteen years for assault,
ten years for burglary, and three years on each count of
armed criminal action, for a total sentence of eighteen
years' imprisonment. Anderson appeals.
raises four claims of error on appeal, but none of them are
preserved for review. Anderson acknowledges that Points I,
III, and IV are not preserved due to his failure to object,
but he fails to acknowledge that Point II is likewise not
preserved due to his failure to raise the issue in a timely
filed motion for new trial.
to various exceptions inapplicable here, "[i]n
jury-tried cases, allegations of error to be preserved for
appellate review must be included in a motion for new
trial." Rule 29.11(d).Here, the basis for Anderson's
claim in Point II was raised in a motion for new trial, but
that motion was not timely filed.
motion for a new trial . . . shall be filed within fifteen
days after the return of the verdict." Rule 29.11(b).
"On application of the defendant made within fifteen
days after the return of the verdict and for good cause shown
the court may extend the time for filing of such motions for
one additional period not to exceed ten days."
verdicts were entered on April 21, 2016. Following the
announcement of the verdicts, Anderson's counsel
requested "the additional time . . . for motion for new
trial, " which would have made the motion due on May 16,
2016. Anderson failed to file his motion for new trial on
that date; instead, the following day, May 17, 2016,
Anderson's counsel filed a request to file Anderson's
motion for new trial out of time, claiming that she had
misread the applicable rules and erroneously believed she had
thirty days, rather than twenty-five, to file the motion for
new trial. The trial court granted Anderson's motion for
leave to file the motion for new trial out of time, and
Anderson's motion was then filed on May 17, 2016, one day
out of time.
trial court is not empowered to waive or extend the
requirements of the rules as to the filing of a new trial
motion and a motion filed beyond the time which the rules
allow preserves nothing for appellate review." State
v. Bailey, 645 S.W.2d 211, 212 (Mo. App. W.D. 1983).
Though the claim underlying Anderson's Point II was set
out in his motion for new trial, because that motion was not
filed within the time limits of Rule 29.11(b), it is not
preserved and may be reviewed-if at all-for only plain error
resulting in a manifest injustice or miscarriage of justice.
See id.; see also State v. Carter, 523
S.W.3d 590, 599 (Mo. App. W.D. 2017) (holding that claim,
included in an untimely motion for new trial, was not
preserved for review). And, as mentioned above, Anderson
acknowledges that none of his remaining three points were
properly preserved either. Thus, they are also reviewable for
only plain error resulting in manifest injustice or
miscarriage of justice.
claims may be reviewed in the [c]ourt's discretion for
plain error." State v. Smith, 522 S.W.3d 221,
231-32 (Mo. banc 2017). But "[s]uch errors must be
evident, obvious, and clear." Id. at 232
(quoting State v. Taylor, 466 S.W.3d 521, 533 (Mo.
banc 2015)). "Plain error occurs when an alleged error
provides 'substantial grounds for believing a manifest
injustice or miscarriage of justice occurred.'"
Id. (quoting Taylor, 466 S.W.3d at 533).
raises four points on appeal. In his first point, he argues
that the trial court plainly erred, in violation of his right
to be free from double jeopardy, in entering convictions and
sentences for two counts of armed criminal action because
they arose from the same transaction. In his second point, he
argues that the trial court erred in sustaining the
State's objection to Anderson's question of one of
the detectives regarding an alleged prior inconsistent
statement made by Walker. In his third point, he claims that
the trial court plainly erred, in violation of his right to
testify, by failing to secure an on-the-record waiver from
Anderson of that right. And, in his final point, Anderson
argues that the trial court plainly erred in providing the
jury with the verdict director for first-degree burglary
because, he claims, it misstated the law.
Conviction for multiple counts of armed criminal action,
predicated upon separate felonies, does not violate double
first point, Anderson argues that his convictions for armed
criminal action, though predicated upon separate felonies,
violate the prohibition against double jeopardy because, he
claims, § 571.015, the statute defining armed criminal
action, is vague regarding the permissible unit of
prosecution. We disagree.
United States Supreme Court has determined that the federal
double jeopardy clause protects defendants not only from
successive prosecutions for the same offense after either an
acquittal or a conviction, but also from multiple punishments
for the same offense." State v. Liberty, 370
S.W.3d 537, 546 (Mo. banc 2012) (quoting State v.
McTush, 827 S.W.2d 184, 186 (Mo. banc 1992)).
"Typically, to determine whether multiple charges
constitute the same offense, courts consider 'whether
each offense necessitates proof of a fact which the other
does not.'" Id. (quoting State v.
Charles, 612 S.W.2d 778, 781 (Mo. banc 1981)). "But
when a defendant's conduct is continuous, involves more
than one item or involves more than one victim, the test more
appropriately is focused on the conduct the legislature
intended to proscribe under the statute." Id.
"Double jeopardy analysis regarding multiple punishments
is, therefore, limited to determining whether cumulative
punishments were intended by the legislature."
Id. at 546-47 (quoting McTush, 827 S.W.2d
determine whether the legislature intended multiple
punishments, a court looks first to the 'unit of
prosecution' allowed by the statutes under which the
defendant was charged." Id. at 547 (quoting
State v. Sanchez, 186 S.W.3d 260, 267 (Mo. banc
2006)). "If a charging statute does not express
unambiguously the permissible 'unit of prosecution, '
the rule of lenity resolves doubts about the intended unit in
favor of the defendant and dictates that a single criminal
transaction should not result in charges for multiple
offenses." Id. "But '[t]he rule of
lenity applies to interpretation of statutes only if, after
seizing everything from which aid can be derived, [the court]
can make no more than a guess as to what the legislature
intended.'" Id. (quoting Fainter v.
State, 174 S.W.3d 718, 721 (Mo. App. W.D. 2005)).
571.015 provides that "any person who commits any felony
under the laws of this state by, with, or through the use,
assistance, or aid of a dangerous instrument or deadly weapon
is also guilty of the crime of armed criminal action . . .
." § 571.015.1. "The punishment imposed
pursuant to this subsection shall be in addition to any
punishment provided by law for the crime committed by, with,
or through the use, assistance, or aid of a dangerous
instrument or deadly weapon." Id.
argues that the statute's reference to "any
felony" in the first sentence renders it vague as to the
permissible unit of prosecution and that, therefore, the rule
of lenity dictates that we interpret it to mean that only one
count of armed criminal action may be brought per
transaction, regardless of the number of distinct felonies
committed "by, with, or through the use, assistance, or
aid of a dangerous instrument or deadly weapon" during
that single transaction.
determining double jeopardy, Missouri follows the separate or
several offense rule rather than the same transaction
rule." State v. Jackson, 410 S.W.3d 204, 215
(Mo. App. W.D. 2013) (quoting State v. Childs, 684
S.W.2d 508, 510-11 (Mo. App. E.D. 1984)). "[A] defendant
can be convicted of several offenses arising from the same
set of facts without violation of double jeopardy."
Id. (quoting Childs, 684 S.W.2d at 511).
"In other words, one cannot be punished for the same
offense twice, though there can be several offenses within
the same conduct." Id.
suggests that his proposed interpretation of § 571.015
is a matter of first impression. But this suggestion
overlooks the holdings in Trotter v. State, 443
S.W.3d 621 (Mo. App. W.D. 2014); Gaines v. State,
920 S.W.2d 563 (Mo. App. E.D. 1996); State v.
Carter, 889 S.W.2d 106 (Mo. App. E.D. 1994); Forshee
v. State, 763 S.W.2d 352 (Mo. App. S.D. 1988); and
State v. Cooper, 712 S.W.2d 27 (Mo. App. E.D. 1986).
In all of these cases, the courts rejected challenges to
multiple convictions of armed criminal action as constituting
double jeopardy. See Trotter, 443 S.W.3d at 625
(holding that, "[b]ecause the legislature specifically
intended cumulative punishments for ACA and the underlying
offenses of felony murder and unlawful use of a weapon,
Trotter's conviction on the two ACA counts did not offend
double jeopardy"); Gaines, 920 S.W.2d at 564
(holding that "[t]he use of the same weapon while
committing a murder and a robbery is punishable separately so
long as the underlying felonies are separate crimes");
Carter, 889 S.W.2d at 109 (rejecting the
defendant's argument that, because he was convicted of
felony murder predicated on first-degree robbery, it would
violate double jeopardy to convict him of two counts of armed
criminal action-one based on murder and one based on
robbery); Forshee, 763 S.W.2d at 357 (holding that,
where "both charges of armed criminal action [we]re
supported by a separate and distinct felony, . . .
movant's double jeopardy rights were not violated");
Cooper, 712 S.W.2d at 31-32 (holding that
"[e]ach time a dangerous instrument is employed to
effectuate certain felonies, the crime of armed criminal
action is committed[, and] . . . subjecting defendant to
cumulative penalties for multiple felonies committed through
the use of a dangerous instrument or deadly weapon simply
carries out and is consistent with th[e statutory] intent and
the statutory scheme, " which is "to deter the use
of dangerous instruments or deadly weapons in the
perpetration of crimes").
light of these multiple holdings contrary to Anderson's
argument, we see no evident, obvious, or clear error and need