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State v. Tharp

Court of Appeals of Missouri, Southern District, Second Division

January 31, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JERRY ALLEN THARP, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable John D. Beger, Circuit Judge

          JEFFREY W. BATES, JUDGE

         Jerry Tharp (Defendant) appeals from his conviction for violating § 566.150.[1] On appeal, Defendant contends the trial court committed plain error by proceeding to trial without first ruling, sua sponte, on Defendant's Rule 32.03 motion for change of venue. Because Defendant impliedly waived his right to a change of venue by his conduct, we affirm.

         Defendant was charged by amended information with committing a class D felony in June 2016 by violating § 566.150. The information alleged that Defendant, a prior sex offender, knowingly loitered within 500 feet of a public park with playground equipment.

         Formal arraignment occurred on July 19, 2016, and Defendant entered a plea of not guilty. The court scheduled another hearing in the case for August 12, 2016.

         On July 26, 2016, defense counsel Christopher Pratt (Pratt) filed an application for a change of venue as a matter of right pursuant to Rule 32.03. The application was not accompanied by the required notice of the time it would be presented to the court. See Rule 32.03(b).

         On August 12, 2016, the court held its scheduled hearing. The application for change of venue was not presented for a ruling. The court set the pretrial conference for December 20, 2016, and the trial for January 23-24, 2017.

         On August 25, 2016, attorney Brandon Swartz (Swartz) entered his appearance as substitute counsel for Defendant in place of Pratt. In November 2016, the trial court entered an order resetting the case to January 25-26, 2017.

         On December 16, 2016, Swartz filed a motion in limine, a motion regarding objections and a motion to invoke the rule on witnesses. The pretrial conference was held on December 20th as scheduled. The application for change of venue was not presented for a ruling.

         On January 5, 2017, Swartz filed a motion for continuance. On January 16th, Swartz filed a motion to allow Defendant to wear nonvisible restraints and civilian clothes. The court held a scheduled motion hearing on January 17th. The motion relating to restraints and clothing was granted by the court. The application for change of venue was not presented for a ruling.

         On January 25th, the court held a hearing on the record just prior to the commencement of trial. The State was represented by prosecutor Parke Stevens (Stevens). Defendant was present, along with defense attorney Swartz. Swartz announced that there were two motions in limine that he wanted to take up. The first was a motion in limine to exclude certain details about Defendant's prior conviction, which the court granted. The second was a motion in limine to exclude the testimony of witness Heather Walker, which the court denied. At that point, the application for change of venue still had not been presented to the court for a ruling. The following colloquy then occurred:

THE COURT: …. So the motion as to Heather Walker is denied.
MR. SWARTZ: Thank you, Judge. With that, I believe all of my pretrial issues are taken care of. I would ask that the Court again invoke the rule on witnesses.

         After some additional discussions about the rule on witnesses, exhibits and jury instructions, ...


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