State v. Flores-Martinez

• Court: Missouri Court of Appeals
• Writing for the Court: JENNIFER R. GROWCOCK, J.
• Citation: State v. Flores-Martinez, 654 S.W.3d 402 (Mo. App. 2022)
• Decision Date: 12 September 2022
• Docket Number: SD 36979
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Alejandro FLORES-MARTINEZ, Defendant-Appellant.

654 S.W.3d 402

STATE of Missouri, Plaintiff-Respondent,

v.Alejandro FLORES-MARTINEZ, Defendant-Appellant.

No. SD 36979

Missouri Court of Appeals, Southern District, In Division.

Filed: September 12, 2022

Rehearing and/or Transfer Denied September 27, 2022

Application for Transfer to Supreme Court Denied November 22, 2022

Attorney for Appellant – Richard H. Sindel of Clayton, MO.

Attorney for Respondent – Eric S. Schmitt, Nathan J. Aquino of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Following a bench trial, the trial court found Alejandro Flores-Martinez ("Defendant") guilty of sexual abuse in the first degree, and sentenced him to seven years in prison. Defendant appeals his conviction and, in two points, claims (1) the trial court erred in permitting the State to amend the then current charging document on the morning of trial before opening statements to the prejudice of Defendant's substantial rights; and (2) the evidence was insufficient to prove beyond a reasonable doubt that Defendant committed the charged offense by the use of forcible compulsion. We reject both of Defendant's claims, but reverse sua sponte and remand for a new trial because the trial court failed to obtain a valid waiver of Defendant's right to a trial by jury.

Facts and Procedural Background

In July 2019, Defendant was charged by information with "sexual abuse in the first degree" "in that on or about December 14, 2018, ... the defendant knowingly had sexual contact with ... Victim by use of forcible compulsion by grabbing her from behind and forcing his genitals to touch her anus through the clothes ...." Although the record does not show a waiver by Defendant of his right to a trial by jury, the trial court scheduled Defendant for a bench trial (first for April 23, 2020, then for June 25, 2020, and finally for August 6, 2020). On the morning of trial on August 6, 2020, and before opening statements or the presentation of any evidence, the State sought and obtained - over Defendant's objection - permission to amend the information to delete the word "anus" from the charging language. In the course of ruling on the State's request, the following colloquy occurred:

The COURT: ... Also there has been filed an Amended Information. Is there objection to that Amended Information, [defense counsel]?

[Defense Counsel]: Judge, I will object to the Amended Information as we have prepared for this case with the Information that we have been given all along, and changing it at the last minute, as well as endorsing someone at the last minute,^[1] I would just object for [Defendant] to receive a fair trial.

THE COURT: [Prosecutor].

[Prosecutor]: Your Honor, as the Court is well aware Supreme Court Rule 23.08 states: Any information may be amended or information may be substituted for an indictment at any time before verdict finding if: (a) No additional or different offense is charged -- which certainly is not the case here and (b) A defendant's substantial rights are not thereby prejudiced.

Judge, because the State isn't changing the substantive nature of this charge I don't believe that his rights are substantively prejudiced by the Amended Information, it was before the case started, and I would ask the Court to go ahead and allow the Amended Information.

THE COURT: Anything else on that, [defense counsel]?

[Defense Counsel]: Judge, the original Information says forcing his genitals to touch her anus, and the Amended says forcing his genitals to touch her through her clothes and, that's a pretty big substantial difference in what the Prosecutor is asking to prove.

THE COURT: Anything else, [prosecutor]?

[Prosecutor]: No, your Honor.

THE COURT: I am going to show the Amended Information – I'll show that it is allowed to be filed by the State over the objection of the Defendant, and I'll keep in mind the arguments of defense counsel.

[Defense Counsel]: Thank you, Judge.

Defendant then waived formal arraignment on the amended information, and entered a plea of not guilty. Defendant did not request a continuance of trial to prepare a defense to the amended information. The case proceeded to bench trial.

At trial, Victim testified as follows. Victim turned 17 years old on December 6, 2018. On December 14, 2018, Victim went to a JCPenney store with her grandmother to shop. At some point, Victim's grandmother went to the restroom and Victim went alone to Sephora, a makeup store inside JCPenney. Victim "noticed that [Defendant] was following [her] closely in the store and just making [her] feel uncomfortable." The "closeness" with which Defendant followed was what made Victim feel uncomfortable. Victim did not know Defendant. Defendant was a middle-aged man, and significantly bigger than Victim. Defendant followed Victim "[f]or about five minutes." As Victim went to look at some face masks, Defendant "came up behind [her] and put his hands over [her] eyes and pulled [her] into him, and his erect penis went into [her] behind. [She] felt it through his clothes." When Defendant placed his hands over Victim's eyes, Defendant's hands physically touched Victim's face and Victim was not able to see. Victim could not move forward because she was facing store shelving. Defendant's actions were "completely unexpected" and "unwanted," and Victim did not "allow" Defendant to touch her. Defendant's actions "[s]cared" Victim. Defendant did not give Victim a chance to resist the assault. After the assault, Victim immediately turned around to look and swatted at Defendant.

Video-only surveillance tape showing Defendant's actions was played for the trial court.

Defendant chose not to testify, and did not call any witnesses.²

Following closing arguments, the trial court took the case under advisement. On October 20, 2020, the trial court found Victim's testimony "to be credible" and found Defendant guilty of sexual abuse in the first degree. On December 15, 2020, the trial court sentenced Defendant to seven years in prison.

Analysis

Defendant's two points claim the trial court erred by permitting the State to amend the then current charging document on the morning of trial before opening statements to the prejudice of Defendant's substantial rights and challenges the sufficiency of the evidence to sustain his conviction, specifically that the evidence was insufficient to prove beyond a reasonable doubt that Defendant committed the charged offense by the use of forcible compulsion. While this Court determines neither of Defendant's points have merit and do not require reversal, this Court exercises its discretion and grants plain error review sua sponte.

The Trial Court Committed Plain Error in Failing to Obtain Defendant's Personal Waiver of his Right to a Trial by Jury, and that Error Merits Sua Sponte Reversal if and only if the Evidence at Trial Was Sufficient

Defendant did not raise the trial court's failure to obtain Defendant's personal waiver of his right to a trial by jury in his initial briefing before this Court. Our review of the record on appeal raised the question of whether Defendant waived his right to jury trial and we ordered Defendant to file a supplemental transcript containing the proceedings of a November 5, 2019 hearing, reflected in the docket in the underlying case as "Hearing Held ... Defendant in person and with Attorney Matt Edmundson, PA Kacey Proctor; case continued to 04/23/2020 for bench trial. MMP[.]"³ This Court received certification from the trial court's official court reporter stating:

This is to certify that a casenet entry dated November 5, 2019, referencing "Hearing held" is not accurate. No hearing on the record was held on that date. The attorneys for the parties and Defendant appeared and agreed to schedule the bench trial on April 23, 2020. There was no transcript prepared in connection with these proceedings."

This Court then issued our show cause order requesting written suggestions discussing the effect, if any, of the deficiency in the record.

Defendant, who was legally present in the United States on a work visa at the time the alleged offense occurred and at trial, filed his response requesting reversal based upon the trial court's plain error of failing to secure Defendant's free, voluntary, and intelligent waiver of his right to trial by jury, and on Defendant's asserted (1) unfamiliarity with a legal system that grants a defendant in a criminal case the right to a trial by jury, and (2) difficulty with the English language, which was his second language. We exercise our discretion to engage in plain error review sua sponte , and conclude that the trial court's failure to obtain Defendant's personal waiver of his right to a trial by jury violated Defendant's federal and state constitutional right to a trial by jury and merits reversal of the trial court's judgment if and only if the evidence presented at trial was sufficient to permit a reasonable fact-finder to find Defendant guilty of sexual abuse in the first degree.

Standard of Review

Plain error review is two-pronged: (1) consider the facts and circumstances to facially determine if there was plain error, i.e., evident, obvious, and clear error, and (2) determine whether a manifest injustice or miscarriage of justice occurred. State v. Presley , 585 S.W.3d 400, 402-03 (Mo. App. 2019).

State v. Pliemling , 645 S.W.3d 86, 91 (Mo. App. S.D. 2022). Further:

Plain error review is at the discretion of the appellate court. [ State v. Brandolese , 601 S.W.3d 519,] 526 [(Mo. banc 2020)]. Even in the absence of a request, we may exercise our discretion to engage in plain error review sua sponte. State v. Snyder , 592 S.W.3d 375, 379 n.4 (Mo. App. 2019) ; State v. Ingalsbe , 557 S.W.3d 515, 520 (Mo. App. 2018). Plain error review is the exception rather than the rule, and sua sponte plain error review is even rarer still.

Id. at 89.

Discussion

In every criminal case in Missouri, a defendant charged with a felony has guaranteed to him a federal and state constitutional right to have a trial by...