State v. Clark

• Decision Date: 19 April 2016
• Docket Number: No. ED 102104,ED 102104
• Citation: 494 S.W.3d 8
• Parties: State of Missouri, Respondent, v. Antonieo D. Clark, Appellant.
• Court: Missouri Court of Appeals

494 S.W.3d 8

State of Missouri, Respondent,

v.Antonieo D. Clark, Appellant.

No. ED 102104

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: April 19, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2016

S. Kathleen Webber, 920 Main Street, Suite 500, Kansas City, Missouri 64106, for Appellant.

Chris Koster, Christine K. Lesicko, P.O. Box 899, Jefferson City, Missouri 65102, for Respondent.

OPINION

James M. Dowd

, Judge

Antonieo D. Clark was convicted after a bench trial in the Circuit Court of the City of St. Louis of two counts of forcible rape, two counts of forcible sodomy, two counts of first-degree robbery, and six counts of armed criminal action arising out of the April 16, 2012, abduction of a woman (“Victim”) outside of a bar on Delor Street in the City of St. Louis. Clark asserts two allegations of plain error: (1) that the trial court violated his right to be free from double jeopardy by convicting him of two counts of first-degree robbery and two related counts of armed criminal action, and (2) that the trial court erred because the sentence of “life (999) years” set forth in its written judgment for each of Clark's two counts of forcible rape and two counts of forcible sodomy materially differed from the sentence the court orally pronounced on the record of life imprisonment for each count.

Finding no plain error, we affirm as to Clark's first point on appeal. As to his second point, we remand to the trial court to correct Clark's sentences to conform to the trial court's oral pronouncement of life imprisonment for each count of forcible rape and forcible sodomy.

Factual and Procedural Background

On April 16, 2012, Clark and two other men¹ abducted Victim at gunpoint as she exited a bar. The three men emerged from behind a dumpster, pointed a gun at Victim's head, and forced her into her automobile. One of the men entered the back seat with Victim, while Clark sat in the driver's seat and the third man in the front passenger's seat.

After driving onto the highway, Clark pulled over and threw out the window the infant car seats found in the back seat. He then forcibly removed Victim's pants and underwear, and threw them out as well. Clark then forced Victim to perform fellatio on him and forced his penis into her vagina while one of the other men held a gun to her head. Afterward, Clark pulled over again and told one of the other men that it was his turn to sexually assault Victim. This man also forced Victim to perform fellatio on him and forced his penis into her vagina while the third man held a gun to her head.

Then the men began demanding money from Victim. They repeatedly clicked a gun aimed at her head telling her they would kill her if she did not obtain money for them. Since Victim did not have any money, she devised a plan. She called her friend, the owner of the bar she had exited earlier that night, and told him she needed bond money because her brother was in jail. When the bar owner agreed to give Victim money, Clark and his co-assailants drove back to the bar.

Victim was put in the front passenger seat and was given a vest to put in her lap so the bar owner would not notice that she did not have on pants or underwear. The bar owner handed the money to the Victim through the open car window, and Victim handed it right to Clark, who was driving the car. One of the other men pointed a gun at Victim's head throughout this transaction.

But the men were not finished with Victim. After getting the money from the bar owner, the men drove around with Victim to Illinois and to Jennings, Missouri, making five to eight stops over the course of five hours. At some point during the night, Clark took from Victim her engagement ring, cross necklace, and her father's wedding band. The men stopped at a gas station and forced Victim to smoke marijuana with them. They also found Victim's daughter's car keys in Victim's car, located the daughter's car, and one of the men drove it several miles away. At one point, the men stopped to try to convince yet another man to rape Victim, but he refused. The men pointed a gun toward Victim's head “almost the entire time” she was in the car.

Eventually, Clark stopped the car and—with one of the other men—entered a gas station. Victim was left in the car with only one of the men, who held the gun on his lap but was using both of his hands to roll marijuana. Victim noticed that the car doors were unlocked and exited the car and ran into the gas station. She asked an attendant to call 911, telling the attendant that she had been raped and believed the men were going to kill her. The attendant helped Victim call 911, and the police came. Clark and the two other men were arrested the next day after police followed to their location a vehicle reported as stolen.

After a bench trial, the court convicted Clark of two counts of forcible rape, two counts of forcible sodomy, two counts of first-degree robbery, and six counts of armed criminal action. The court orally sentenced Clark to life imprisonment for each of the two counts of forcible rape and the two counts of forcible sodomy, to run concurrently. However, the court's written judgment pronounced a sentence of “life (999) years” for each of those crimes.

Standard of Review

Clark seeks plain error review on both of his claims of trial court error under Missouri Supreme Court Rule 30.20

. Plain error lies where we find that manifest injustice or a miscarriage of justice has resulted from trial court error. State v. Baumruk, 280 S.W.3d 600, 607 (Mo.banc 2009). A double jeopardy violation “determinable from the face of the record” is entitled to plain error review. State v. Liberty, 370 S.W.3d 537, 546 (Mo.banc 2012) (citing State v. Neher, 213 S.W.3d 44, 48 (Mo.banc 2007) ). Generally, however, we have discretion to review for plain error only where the appellant asserting error establishes facially substantial grounds for believing that the trial court's error was evident, obvious, and clear, and that manifest injustice or a miscarriage of justice has resulted. State v. Jones, 427 S.W.3d 191, 195 (Mo.banc 2014). Plain error can serve as the basis for granting a new trial on direct appeal only if the error was outcome-determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo.banc 2006).

Point I: Double Jeopardy

In Point I, Clark claims that the trial court violated his right to be free from double jeopardy by convicting him of two counts of first-degree robbery and two related counts of armed criminal action. Clark argues that he should have been convicted of only one count of each of those offenses because he stole the money and the jewelry in this case under a single, continuous threat of force. In his view, the two thefts thus constituted one crime. However, under the applicable statutes the continuity of the underlying threat of force in the thefts does not give any indication how many robberies were committed. Thus, because Clark does not point to any evidence in the record tending to show that the theft of the jewelry occurred during the same instance of forcible stealing as did the theft of the money—or even that they occurred within minutes instead of hours of one another—Clark fails to make a facial showing justifying plain error review of the alleged double-jeopardy violation.

The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution protects the accused 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. Liberty, 370 S.W.3d at 546

(quoting State v. McTush, 827 S.W.2d 184, 186 (Mo.banc 1992) ). Double jeopardy analysis regarding multiple punishments is limited to determining whether cumulative punishments were intended by the legislature. McTush, 827 S.W.2d at 186 (citing Missouri v. Hunter, 459 U.S. 359, 366–69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) ); State v. Hardin, 429 S.W.3d 417, 421 (Mo.banc 2014). In determining legislative intent, we look to the “unit of prosecution” allowed by the statutes under which the defendant was convicted. Liberty, 370 S.W.3d at 547 (citing State v. Sanchez, 186 S.W.3d 260, 267 (Mo. banc 2006) ). The scope of conduct comprising one violation of a criminal statute defines the unit of prosecution. We ascertain the allowable unit of prosecution first by looking to the statute under which the defendant was convicted, and if that statute is silent, then by looking to the general cumulative punishment statute, section 556.041.

State v. Barber, 37 S.W.3d 400, 403 (Mo.App.E.D.2001)

.

Here, Clark was convicted under section 569.020² of two counts of first-degree robbery. Section 569.020.1(3) provides that “[a] person commits the crime ... when he forcibly steals property and in the course thereof he, or another participant in the crime, ... [u]ses or threatens the immediate use of a dangerous instrument against any person.” Because the legislature did not specify in section 569.020 the allowable unit of prosecution for first-degree robbery, we look to the general cumulative punishment statute, section 556.041.

While section 556.041 provides that a defendant may not be convicted of more than one offense if “[t]he offense is defined as a continuing course of conduct and the [defendant's] course of conduct was uninterrupted,” first-degree robbery is not defined in section 569.020 as a continuing course of conduct. First-degree robbery is defined as “forcible stealing” during which the defendant places a person under threat of harm. See Section 569.020.1(3). Thus, when the forcible stealing ends, the crime ends, regardless of whether the underlying threat of harm continues. In defining “forcible stealing,” section 569.010(1) states that “a person ‘forcibly steals,’ and therefore commits robbery, when, [specifically] in the course of stealing, he uses or threatens the immediate use of physical force upon another person for the purpose of” taking...