State v. Milcendeau

• Decision Date: 31 January 2019
• Docket Number: No. SD 35151,SD 35151
• Citation: 571 S.W.3d 178
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David James MILCENDEAU, Defendant-Appellant.
• Court: Missouri Court of Appeals

571 S.W.3d 178

STATE of Missouri, Plaintiff-Respondent,

v.David James MILCENDEAU, Defendant-Appellant.

No. SD 35151

Missouri Court of Appeals, Southern District, Division Two.

Filed: January 31, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied February 26, 2019

Application for Transfer Denied April 30, 2019

Attorney for Appellant: Elizabeth Unger Carlyle of Kansas City, MO.

Attorney for Respondent: Joshua D. Hawley, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

After a jury trial, David Milcendeau (Defendant) was found guilty of the class B felony of child molestation in the first degree and the unclassified felony of statutory sodomy in the first degree. See § 566.067; § 566.062.¹

Factual and Procedural Background

Defendant’s appeal presents two plain error points relating to a venue issue. See Rule 30.20. Therefore, our summary of the events in this case will be limited to the facts relevant to those two points.

The two charges against Defendant were specified in a May 2016 grand jury indictment filed in the Circuit Court of Pulaski County, Missouri. The indictment alleged that the two offenses were committed against H.B. (Victim), a child less than 14 years of age, in Pulaski County. In June 2016, Defendant filed an application for change of venue pursuant to Rule 32.03. The case was transferred to Phelps County.

A pretrial conference was held on May 25, 2017. The issue of venue was not brought up by defense counsel. Trial commenced on May 30, 2017. At the close of the State’s case, defense counsel first raised the venue issue in Defendant’s motion for judgment of acquittal. Counsel requested dismissal of the sodomy charge because the State had failed to prove the crime took place in Pulaski County. The trial court denied the motion. Defense counsel renewed that request in Defendant’s motion for judgment of acquittal at the close of all of the evidence, which the trial court also denied. Instruction No. 10, which was the verdict-directing instruction for the sodomy charge, hypothesized in relevant part that the conduct constituting the offense occurred "in the County of Pulaski, State of Missouri[.]"² During the initial portion of the State’s closing argument, the prosecutor stated:

I have to show you that it happened in Pulaski County. We know it happened at a river. We know it happened close to where [Defendant] lived, which was in Pulaski County. And it’s safe to assume that right there, there’s no county line that it happened in Pulaski County.

There was no objection to this comment, and defense counsel did not address this issue during Defendant’s closing argument. The jury found Defendant guilty of both charged offenses.

In Defendant’s motion for new trial, he argued that the trial court erred by denying Defendant’s motions for judgment of acquittal. Defendant argued that the court lacked jurisdiction over the sodomy charge because the State failed to prove the crime occurred in Pulaski County. At the hearing on the new trial motion, defense counsel argued that the State’s alleged failure to prove the location of the sodomy offense was a jurisdictional issue. In response, the prosecutor argued that this aspect of Defendant’s new trial motion presented a venue issue, which was waived when Defendant received a change of venue. The trial court denied the motion for new trial.

Discussion and Decision

Defendant’s points request plain error review of the State’s alleged failure to prove venue and of an improper comment about the venue issue during the State’s closing argument. Rule 30.20 states, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Id . Plain error review is discretionary. State v. Clay , 533 S.W.3d 710, 714 (Mo. banc 2017). An appellate court will not engage in plain error review unless the claimed error facially establishes substantial grounds for believing that a manifest injustice or a miscarriage of justice has resulted. Id .

"A claim of plain error places a much greater burden on a defendant than an assertion of prejudicial error." State v. Wright , 216 S.W.3d 196, 199 (Mo. App. 2007). Plain error and prejudicial error are not synonymous terms, and mere allegations of error and prejudice will not suffice. Id ."Plain error must be evident, obvious, and clear." State v. Walter , 479 S.W.3d 118, 131 (Mo. banc 2016). "Plain error can serve as the basis for granting relief on direct appeal only if the error was outcome determinative." State v. Placke , 290 S.W.3d 145, 153 (Mo. App. 2009).

Point 1

In Defendant’s first point, he contends the trial court plainly erred by failing to require evidence sufficient to establish venue in Pulaski County for the sodomy charge prior to trial, in that no witness testified the offense occurred in that county. Defendant concedes he made no pretrial objection to venue. Nevertheless, he argues that the absence of proof of venue at trial constituted plain error, based on art. I, § 18(a) of the Missouri Constitution ; §§ 476.410 and 56.060.1.³ He requests a remand for a determination of venue. We conclude that Point 1 lacks merit for two reasons: (1) Defendant invited the error by failing to assert his venue challenge before the trial commenced; and (2) Defendant waived the error both by proceeding to trial without objection and by requesting a change of venue to Phelps County.

First, Defendant invited any error. In State v. Taylor , 238 S.W.3d 145 (Mo. banc 2007), the defendant did not object to venue until after the trial started. Defense counsel raised the issue in a motion to dismiss for improper venue, filed on the first day of trial, and in a motion for judgment of acquittal filed at the close of the State’s evidence. Id . at 147. Our Supreme Court explained that it was error to submit the issue of venue in a jury instruction because it was not an element of the offense. Id . at 148. "If a criminal defendant believes venue is incorrect, the defendant must object. If the defendant does not object, the case can be tried even though venue would otherwise be incorrect. Incorrect venue does not affect a trial court’s power to render judgment." Id . at 149.⁴ The Court then described how to correctly challenge venue in a criminal case:

A defendant’s objection to venue must be made before trial. If the defendant challenges the correctness of venue, the trial court must determine the issue. The prosecution ... must then prove by a preponderance of the evidence that the crime occurred in the county where the case is filed. Since the objection to venue is a pretrial matter, and venue is not an element of the offense, the judge will determine the facts as to venue. If, after the defendant objects to venue, the state fails to prove that venue is correct, the trial court should transfer the case to a county where venue is proper, as required by section 476.410. ... Under this analysis, there was error because the issue of proper venue was not ruled upon until trial. This error, however, was invited because Taylor did not object to venue before trial.

Taylor , 238 S.W.3d at 150-51 (emphasis added; footnote omitted). In the case at bar, Defendant did not raise the venue issue until after the trial had started. Therefore, Defendant invited any venue error. We decline to exercise our discretionary authority to review for plain error. "While plain error review is discretionary, an appellate court should not use it to impose a sua sponte duty upon a trial court to correct mistakes of a defendant’s own making." State v. Shockley , 410 S.W.3d 179, 201 (Mo. banc 2013).

Second, Defendant waived the venue issue. There is a long line of Missouri authority holding that a defendant who proceeds to trial without challenging venue waives that alleged error. See, e.g. , State v. Gaines , 316 S.W.3d 440, 454 (Mo. App. 2010) (defendant waived objection by failing to challenge venue before trial); State v. Cable , 207 S.W.3d 653, 658 (Mo. App. 2006) (defendant waived complaint that venue was improper by proceeding to trial); State v. Morrison , 869 S.W.2d 813, 814-15 (Mo. App. 1994) (the defendant’s venue objection in his motions for judgment of acquittal at the close of the State’s case and at the close of all of the evidence were insufficient and came too late); State v. Vincent , 582 S.W.2d 723, 725 (Mo. App. 1979) (having gone to trial with no challenge to venue, defendant waived his right to object).

Defendant also waived the venue issue by requesting a change of venue to Phelps County. Defendant’s reliance on MO. CONST. art. I, § 18(a) and § 476.410 is misplaced.⁵ The venue provision in this subsection of the Missouri Constitution confers a personal privilege that can be waived. See, e.g. , State v. Wood , 596 S.W.2d 394, 401 (Mo. banc 1980) ; State v. Leigh , 423 S.W.2d 690, 692 (Mo. 1968) ; Skaggs v. State , 754 S.W.2d 10, 11 (Mo. App. 1988). A waiver occurs when a defendant proceeds to trial without raising this venue objection. See Wood , 596 S.W.2d at 401. This waived venue objection is not reviewable as plain error. Leigh , 423 S.W.2d at 692. A waiver also occurs when a defendant moves for a change of venue pursuant to Rules 32.03 and 32.04, as Defendant did here. See Taylor , 238 S.W.3d at 149 ; State v. Williams , 455 S.W.3d 1, 6 (Mo. App. 2013) ; State v. Rowe , 363 S.W.3d 114, 117-18 (Mo. App. 2012). Likewise, a right to request a transfer pursuant to § 476.410 can be waived by failing to challenge venue before the trial commences. See Taylor , 238 S.W.3d at 150 ; Hall v. Podleski , 355 S.W.3d 570, 577 n.10 (Mo. App. 2011).

Defendant’s last argument is based upon § 56.060. In pertinent part, this statute states:

Each prosecuting attorney shall commence and prosecute all civil and criminal actions in the prosecuting attorney’s county in which the county or state is

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