Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable John D.
Beger, Circuit Judge
JEFFREY W. BATES, JUDGE
Tharp (Defendant) appeals from his conviction for violating
§ 566.150. 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
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
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.
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).
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.
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.
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.
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.
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
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.
some additional discussions about the rule on witnesses,
exhibits and jury instructions, ...