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State v. Anderson

Court of Appeals of Missouri, Western District, First Division

November 21, 2017

STATE OF MISSOURI, Respondent,
v.
DAVID R. ANDERSON, Appellant.

         Appeal 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.

          OPINION

          Karen King Mitchell, Judge.

         David Anderson appeals, following a jury trial, his convictions of first-degree assault, § 565.050, [1] 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.

         Background

         On 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 he did.

         Walker 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.

         Standard of Review

         Anderson 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.

         Subject 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).[2]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.

         "A 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." Id.

         The 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.

         "A 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.

         "Unpreserved 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).

         Analysis

         Anderson 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.

         A. Conviction for multiple counts of armed criminal action, predicated upon separate felonies, does not violate double jeopardy.

         In his 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.

         "The 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 at 186).

         "To 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)).

         Section 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.

         Anderson 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.

         "In 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.

         Anderson 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").[3]

         In light of these multiple holdings contrary to Anderson's argument, we see no evident, obvious, or clear error and need not ...


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