In the Supreme Court of Missouri

In the Supreme Court of Missouri _________________________________ STATE OF MISSOURI, Respondent, v. KARTEZ HARD IN , Appellant. ________________________________ Appeal from the Circuit Court of the City of St. Louis Tw enty-second Judicial Circuit The Honorable Angela Turner Quigless, Judge _________________________________ RESPON D EN T’S AMEN D ED SUBSTITUTE BRIEF _________________________________ CHRIS KOSTER Attorney General TIMOTHY A. BLACKWELL Assistant Attorney General Missouri Bar N o. 35443 P.O. Box 899 Jefferson City, MO 65102 Phone: (573) 751-3321 Fax: (573) 751-5391 tim.blackw [email protected] ATTORN EYS FOR RESPON D EN T STATE OF MISSOURI

Electronically Filed - SUPREME COURT OF MISSOURI - October 14, 2013 - 03:36 PM GMT+00:00

N o. SC93555

TABLE OF AUTH ORITIES ............................................................................................. 3 STATEMEN T OF FACTS................................................................................................. 6 ARGUMEN T ................................................................................................................... 14 I. (sentence for forcible rap e) The trial cou rt d id not p lainly err in sentencing Ap p ellant as a p ersistent offend er to fifty years of im p risonm ent on Cou nt I for the offense of forcible rap e, as the crim e is p u nishable by life im p risonm ent or a term of years not less than five years. The sentence of fifty years is au thorized by the p lain langu age of section 566.030, RSMo Su p p . 2009 .................................................................... 14 II. (d ou ble jeop ard y) The State agrees that Ap p ellant’s convictions on Cou nts VIII throu gh XII (violation of a p rotective ord er) violated d ou ble jeop ard y, as the p roof of violation of a p rotective ord er w as also necessary to establish the offense of aggravated stalking (Cou nt VII). ........................................................................... 31 CON CLUSION ................................................................................................................ 33 CERTIFICATE OF COMPLIAN CE AN D SERVICE.................................................. 34

2


TABLE OF CON TEN TS

Cases Fainter v. State, 174 S.W.3d 718 (Mo. Ap p . W.D. 2005) .............................................. 24 Olds v. State, 891 S.W.2d 486 (Mo. Ap p . E.D. 1994) ................................................... 20 State v. Banks, 259 S.W.3d 49 (Mo. Ap p . W.D. 2008) .................................................. 19 State v. Boesing, 307 S.W.3d 218, 219 (Mo. Ap p . E.D. 2010) ...................................... 14 State v. Brushwood, 171 S.W.3d 143 (Mo. Ap p . W.D. 2005) ....................................... 23 State v. Carney, 195 S.W.3d 567 (Mo. Ap p . S.D. 2006) ................................................ 31 State v. Chapman, 167 S.W.3d 759 (Mo. Ap p . E.D. 2005) ............................................ 22 State v. Charron, 743 S.W.2d 436 (Mo. Ap p . E.D. 1987) .................................. 16, 20, 28 State v. Daniel, 103 S.W.3d 822 (Mo. Ap p . W.D. 2003) ............................................... 24 State v. Davis, 867 S.W.2d 539 (Mo. Ap p . W.D. 1993), ............................. 17, 18, 20, 21 State v. Harrell, 342 S.W.3d 908 (Mo. Ap p . S.D. 2011) ................................................ 26 State v. Harrison, 390 S.W.3d 927 (Mo. Ap p . S.D. 2013) ....................................... 23, 24 State v. Knapp, 843 S.W.2d 345 (Mo. banc 1992) .......................................................... 23 State v. LaRue, 811 S.W.2d 40 (Mo. Ap p . S.D. 1991) ................................................... 26 State v. Lewis, 188 S.W.3d 483 (Mo. Ap p . W.D. 2006) ................................................ 23 State v. Lloyd, 205 S.W.3d 893 (Mo. Ap p . S.D. 2006) .................................................. 30 State v. M aples, 306 S.W.3d 153 (Mo. Ap p . W.D. 2010) .............................................. 18 State v. M yers, 248 S.W.3d 19 (Mo. Ap p . E.D. 2008) ................................................... 24 State v. Olds, 831 S.W.2d 713 (Mo. Ap p . E.D. 1992) ................................................... 20 3


TABLE OF AUTHORITIES

State v. Pesce, 325 S.W.3d 565 (Mo. Ap p . W.D. 2010) ................................................. 24 State v. Slavens, 375 S.W.3d 915 (Mo. Ap p . S.D. 2012) ............................................... 24 State v. Smith, 370 S.W.3d 891 (Mo. Ap p . E.D. 2012) ................................................. 32 State v. Stoer, 862 S.W.2d 348 (Mo. Ap p . S.D. 1993) ............................................ 25, 26 State v. Taylor, 67 S.W.3d 713 (Mo. Ap p . S.D. 2002) ................................................... 14 State v. W illiams, 828 S.W.2d 894 (Mo. Ap p . E.D. 1992), ............. 15, 19, 20, 23, 25, 28 Thomas v. Dormire, 923 S.W.2d 533 (Mo. Ap p . W.D. 1996) ................................. 19, 20 Thurston v. State, 791 S.W.2d 893 (Mo. Ap p . E.D. 1990) ...................................... 26, 27 Toney v. State, 770 S.W.2d 411 (Mo. Ap p . E.D. 1989) ........................................... 16, 28 Turner v. State, 245 S.W.3d 826 (Mo. banc 2008) ................................................... 24, 25 V anzandt v. State, 212 S.W.3d 228 (Mo. Ap p . S.D. 2007) ..................................... 21, 22 W eeks v. State, 785 S.W.2d 331 (Mo. Ap p . W.D. 1990) ............................................... 21 W estcott v. State, 731 S.W.2d 326 (Mo. Ap p . W.D. 1987) ........................................... 21 Statu tes Section 1.160, RSMo Su p p . 1993 ............................................................................. 18, 19 Section 556.061, RSMo Su p p . 2009 ............................................................................... 28 Section 557.021, RSMo .................................................................................................... 21 Section 558.011, RSMo Su p p . 1984 ............................................................................... 19 Section 558.016, RSMo 2000 ..................................................................................... 18, 21 Section 558.019, RSMo Su p p . 2009 ................................................................... 15, 21, 28 4


State v. Ondo, 232 S.W.3d 622 (Mo. Ap p . S.D. 2007) .................................................. 24

Section 566.030, RSMo Su p p . 1980 ............................................................................... 16 Section 566.030, RSMo Su p p . 1984 ............................................................................... 19 Section 566.030, RSMo Su p p . 1993 ............................................................................... 17 Section 566.030, RSMo Su p p . 1994 ............................................................................... 18 Section 566.030, RSMo Su p p . 2009 ..................................... 14, 22, 23, 24, 25, 27, 28, 29 Section 566.032, RSMo Su p p . 2012 ............................................................................... 29 Section 566.060, RSMo .............................................................................................. 19, 29 Section 566.062, RSMo Su p p . 2012 ......................................................................... 21, 29 Section 571.015, RSMo 2000 ............................................................................... 25, 26, 27 Ru les Su p rem e Cou rt Ru le 24.035 ........................................................................................... 21 Su p rem e Cou rt Ru le 30.20 ............................................................................................. 31

5


Section 566.030, RSMo 1978 ........................................................................................... 17

Kartez H ard in ap p eals the ju d gm ent entered u p on a ju ry verd ict convicting him of forcible rap e, tw o cou nts of kid nap p ing, end angering the w elfare of a child , p rop erty d am age in the second d egree, aggravated stalking, six cou nts of violation of a p rotective ord er, d om estic assau lt in the second d egree, and victim tam p ering (L.F. 49-62, 65-74). The incidents. View ed in the light m ost favorable to the verd ict, the follow ing evid ence w as ad d u ced at trial. Victim began d ating Ap p ellant in Febru ary 2010 and they w ere m arried on May 19, 2010 (Tr. 197-98). On Ju ly 18, 2010, Victim saw the m other of her exboyfriend , Destin Joshu a, at a gas station (Tr. 200). Joshu a’s m other asked if Victim cou ld bring Joshu a’s birth certificate and GED certificate to her hou se, and Victim agreed (Tr. 201). The next d ay, Victim w ent to Joshu a’s m other’s hou se (Tr. 201-02). As Victim w as seated in her car talking to Joshu a, Ap p ellant d rove arou nd the corner in his vehicle (Tr. 205). As Victim w as leaving the area, Ap p ellant p u lled in front of her and m otioned for her to p u ll over (Tr. 205, 209-11). Ap p ellant op ened Victim ’s d river’s sid e car d oor, took her keys ou t of the ignition, rem oved her gu n from the m id d le console, and began hitting her (Tr. 213). Ap p ellant hit her ap p roxim ately tw enty tim es on the sid e of the head and rip p ed off her shirt and bra (Tr. 213-14). Ap p ellant gave her the car keys and told her to go hom e, stating that 6


STATEMEN T OF FACTS

of seeing a p olice officer, bu t Ap p ellant called her on the p hone, w aved her gu n at her, and stated that he w ou ld start shooting if she d id not go hom e (Tr. 216-17). Victim sp eed -d ialed her son’s father and p u t him on sp eaker p hone; she asked him to send the p olice to her hou se (Tr. 217-18). Victim and Ap p ellant w ent in the house and Ap p ellant p u lled her hair (Tr. 218). The p olice arrived bu t Victim w as afraid to say anything to them (Tr. 218-19). Ap p ellant started to take Victim to the hosp ital at her requ est, bu t he stated that he intend ed to d rop her off there, and she d id not w ant to go to the em ergency room alone, so he took her back hom e (Tr. 219-20). The next d ay, Victim cou ld not hear ou t of her left ear, and she convinced Ap p ellant to take her to the d octor, bu t Ap p ellant d id so only on the cond ition that she tell the d octor that h er ex-boyfriend had beaten her (Tr. 221). A CAT scan show ed six facial fractu res (Tr. 221-22). Victim eventu ally saw an EN T sp ecialist and learned that her eard ru m w as ru p tu red (Tr. 225). Victim m issed w ork for the entire w eek of the incid ent and w as fired w hen she retu rned (Tr. 225-26). Victim ’s relationship w ith Ap p ellant becam e “[v]ery volatile” (Tr. 228). Ap p roxim ately tw o w eeks before Thanksgiving, Victim told Ap p ellant that she d id not w ant to be w ith him anym ore and she w anted him ou t of her hou se (Tr. 235). Victim d rove Ap p ellant to his m other’s hou se (Tr. 235). When they got there, Ap p ellant grabbed the keys ou t of Victim ’s ignition, got in his car, and left (Tr. 2357


he w ou ld follow her (Tr. 216). Victim d rove a rou te aw ay from her hom e in hop es

236). Ap p ellant called and told her to m eet him in front of his au nt’s hou se and he w ou ld give the keys back (Tr. 236). When Victim arrived , Ap p ellant got in the backseat of her car and started hitting her (Tr. 236-37). Victim ’s son w as in the front p assenger seat (Tr. 236). Victim told her son to get ou t and call 911 (Tr. 237). Ap p ellant grabbed Victim ’s hair and tw isted her face in front of her son’s face, stating that if the boy got ou t of the car, his m om w as going to d ie that nig ht (Tr. 237). Victim ju m p ed ou t in front of an oncom ing car; Ap p ellant’s cou sin w as in the car (Tr. 237). The cou sin told them that the p olice w ere arou nd the corner and that they shou ld m ove (Tr. 237). Du ring Thanksgiving w eek, Victim w anted to see a friend w ho w as visiting from ou t of tow n (Tr. 228). Ap p ellant said that she cou ld go visit her friend , bu t on Mond ay, Tu esd ay, and Wed nesd ay night w hen Victim got hom e from w ork, Ap p ellant had things for her to d o becau se his car w as broken d ow n (Tr . 229). On Thanksgiving Day, Ap p ellant stated that she cou ld d rop him off at his cou sin’s hou se and she cou ld go see her friend after they w ent to his m other’s for Thanksgiving d inner (Tr. 229). They w ent insid e at Ap p ellant’s cousin’s house, and Ap p ellant then took Victim ’s car and left for fou r hou rs (Tr. 229). When Ap p ellant retu rned , he w as extrem ely intoxicated and he p assed ou t (Tr. 229). Victim stayed u ntil alm ost all of the fam ily w as gone, and they got Ap p ellant in the car and d rove hom e (Tr. 229). Victim w as u p set becau se she still had not visited w ith her friend 8


36). Victim had a sp are car key in her p u rse bu t d id not have a sp a re hou se key (Tr.

rep lied that it w as none of her bu siness (Tr. 230). Victim had an ap p ointm ent the next m orning , N ovem ber 26, 2010, to m eet w ith a lend er and a realtor to sign p ap ers on a hom e that she and Ap p ellant w ere p u rchasing together (Tr. 230-31). Ap p ellant w as not at the ap p ointm ent (Tr. 230). Victim broke d ow n and told the lend er and realtor that she d id not w a nt to bu y the hou se w ith Ap p ellant (Tr. 230). Victim w ent to the cou rthou se to get a restraining ord er bu t the cou rthou se w as closed d u e to the Thanksgiving holid ay (Tr. 231). Victim visited w ith her friend from ou t of tow n (Tr. 231-32). Ap p ellant kep t calling Victim d u ring the entire tim e that she w as gone (Tr. 232). Victim answ ered the calls at first, bu t then stop p ed (Tr. 232). When Victim arrived hom e late that evening, Ap p ellant’s girlfriend w as leaving (Tr. 232). Ap p ellant had lost his hou se k ey and w as sitting on the front p orch (Tr. 232). Ap p ellant asked Victim to let him in the hou se, and she d eclined (Tr. 233). Victim called the p olice and they escorted her into the hou se so that she cou ld get som e clothes for her son (Tr. 233-34). Ap p ellant called Victim later that night and told her that if she d id n’t com e hom e, he w ou ld kill her (Tr. 234). On N ovem ber 27, 2010, Victim obtained an ex p arte ord er of protection based on the incid ents in the tw o p reced ing w eeks (Tr. 230-31, 235, 358, 361). The p olice w ere p resent w hen the restraining ord er w as served on Ap p ellant, and Victim allow ed him to rem ove his belongings from her hou se (Tr. 245, 358, 361). As 9


(Tr. 229-30). Victim asked Ap p ellant w here he had been for fou r hou rs, and he

the w eek (Tr. 245-46). The cou rt later issu ed a fu ll ord er of p rotection, w hich w as served on Ap p ellant by certified m ail (Tr. 362-63). Appellant left voice messages for Victim bu t they d id not have any conversation betw een N ovem ber 26 and Decem ber 4, 2010 (Tr. 237-38). On Decem ber 4, 2010, Victim took her son to Ap p ellant’s Au nt Vickie’s house to get a stye ou t of his eye (Tr. 238-39). Ap p ellant arrived w ith a box of chocolates, three balloons, and a d ozen roses (Tr. 240). Victim shook her head (Tr. 240). Yelling and scream ing, Ap p ellant beat the roses against the cou ntertop and said , “See how she d oes m e? She w on’t even give m e a chance. She w on’t even let m e talk to her” (Tr. 240). Ap p ellant’s u ncle got a gu n and asked Ap p ellant to leave, so he w en t ou tsid e and sat on the p orch of an aband oned hou se next d oor (Tr. 240). Victim got her son in the vehicle and d rove aw ay, bu t Ap p ellant ran after the vehicle, grabbed the lu ggage rack, and hoisted him self on top of the car (Tr. 241-42). Ap p ellant w as kicking the w ind shield w ith his heels, and Victim w as sw erving back and forth to try to throw him off of the vehicle (Tr. 242). Ap p ellant started kicking the d river’s sid e d oor, and it p op p ed op en (Tr. 242-43). Ap p ellant reached insid e the vehicle and p u t his arm throu gh the steering w heel so that Victim w as not able to m ove it (Tr. 243). The vehicle w as head ed off the road onto a cu rb w here a brick bu ild ing w as, so Victim slam m ed on the brakes; otherw ise, she w as going to hit the brick bu ild ing (Tr. 244). Ap p ellant broke off the tu rn signal, w hich also controlled the 10


Ap p ellant w as w alking ou t, he told Victim that she w as going to d ie by the end of

get in the back seat, and m ad e Victim get in the front p assenger seat (Tr. 244-45). Ap p ellant reached into Victim ’s jacket pocket and took her phone from her (Tr. 245). Ap p ellant stated that he had told Victim that she w as going to d ie before the end of the w eek, and he p oked her in the sid e of the head so that her head hit u p against the w ind ow and the d oor (Tr. 245). Ap p ellant d rove to the hom e of Victim ’s son’s father and grand m other, bu t Victim convinced Ap p ellant not to leave the boy there becau se no one w as hom e (Tr. 246). Ap p ellant d rove d ow n the highw ay at a sp eed of 100 m iles per hour (Tr. 247). Victim reached back to hold her son’s hand , bu t Ap p ellant grabbed her hand and told her not to hold her son’s hand , and that she d id not d eserve to be a m other (Tr. 247). Ap p ellant d rove to his Au nt Rhond a’s ap artm ent and yelled at th e boy to get ou t of the tru ck, stating that if the boy told anybod y w hat w as going on, Ap p ellant w ou ld kill his m other (Tr. 248). Ap p ellant left the boy scream ing in the m id d le of the p arking lot (Tr. 248-49). When Victim tried to get ou t to stay w ith her son, Ap p ellant grabbed her and w ou ld n’t let her op en the d oor (Tr. 249). Whenever Victim ’s p hone rang, Ap p ellant told her to p u t it on sp eaker and tell the callers that everything w as OK (Tr. 249). Victim kep t asking to go get her son, bu t Ap p ellant told her not to w orry becau se she w ou ld never see her son again (Tr. 252). Ap p ellant d rove to the riverfront and p arked betw een tw o d iesel trailers (Tr. 251). Ap p ellant grabbed Victim ’s legs and genital area, and told her that if she d id 11


lights (Tr. 244). Ap p ellant fell off the vehicle (Tr. 328). Appellant mad e Victim’s son

ass” (Tr. 251-52). Ap p ellant had Victim lay her seat back, and he performed oral sex on her and then had intercou rse w ith her (Tr. 253). Victim allow ed it to hap p en becau se she d id not w ant to be beaten (Tr. 254). Ap p ellant started crying and ap ologizing, stating that he w anted them to go hom e and be a fam ily (Tr. 253). Victim d rop p ed off Ap p ellant at Vickie’s hom e, and then p icked u p her son at Rhond a’s hom e (Tr. 261, 284). Victim d rove to the p olice station (Tr. 262-63). Du ring the m orning of Decem ber 5, Ap p ellant called Victim at 12:59, 1:15, 1:16, 1:28, 2:10, again at 2:10, 2:11, 3:10, and 3:16 (Tr. 284, 291-94). Victim d id not talk to Ap p ellant, at least on the last six calls (Tr. 293-94). Ap p ellant left a voice m ail for Victim at 8:09 a.m . (Tr. 295). Ap p ellant also w rote fou r letters to Victim w hile he w as incarcerated (Tr. 298-99, 371). Ap p ellant includ ed a visitor form for her to come see him (Tr. 299). Ap p ellant stated that he loved her and that he w as sorry that he hu rt her, and he begged her to d rop the charges (Tr. 299). Ap p ellant m ad e a call to his sister, requ esting that the sister call Victim and ask Victim w hat tim e she w ou ld be hom e, if she w ou ld be w illing to talk to him , and if she w ou ld d rop the charges against him (Tr. 299-300). The verdict and sentences. Ap p ellant m oved for ju d gm ent of acqu ittal at the close of the State’s evid ence and at the close of all the evid ence (Tr. 440), and the trial cou rt d enie d the m otions (Tr. 448). 12


not give him w hat he w anted , he w as going to take it, and he w ou ld “w hoop [her]

end angering the w elfare of a child , p rop erty d am age in the second d egree, aggravated stalking, six cou nts of violation of a protective ord er, d omestic assault in the second d egree, and victim tam p ering (L.F. 49-62). The trial cou rt sentenced Ap p ellant as a p rior and p ersistent offend er to fifty years in the Missou ri Dep artm ent of Corrections on Cou nt I (forcible rap e) and tw enty-five years each on Cou nt II and Cou nt III (kid nap p ing), all to ru n consecu tively (L.F. 68-69). The trial cou rt sentenced Ap p ellant to fifteen years on Cou nt IV (end angering the w elfare of a child ), one year on Cou nt V (violation of p rotective ord er), six m onths in MSI on Cou nt VI (p rop erty d am age in the second d egree), seven years in the Dep artm ent of Corrections on Cou nt VII (aggravated stalking), one year each on Cou nts VIII throu gh XII (violation of p rotective ord er), fifteen years on Cou nt XIII (d om estic assau lt in the second d egree), and fifteen years on Cou nt XIV (victim tam p ering); each of these sentences w as consecu tive to the sentence on Cou nt I (L.F. 65-72). This ap p eal follow ed .

13


The ju ry fou nd Ap p ellant gu ilty of forcible rap e, tw o cou nts of kid nap p ing,

I. (sentence for forcible rape) The trial court did not plainly err in sentencing Appellant as a persistent offender to fifty years of imprisonment on Count I for the unclassified felony of forcible rape, as the crime is punishable by life imprisonment or a term of years not less than five years. The sentence of fifty years is authorized by the plain language of section 566.030, RSMo Supp. 2009. A. Preservation and the standard of review . Ap p ellant ad m its that he d id not challenge the sentence on Cou nt I before the trial cou rt. Missou ri ap p ellate cou rts have fou nd m anifest inju stice and granted p lain-error relief w hen a trial cou rt im p osed a sentence that exceed ed the maximu m p enalty p erm itted by law . State v. Boesing, 307 S.W.3d 218, 219 (Mo. Ap p. E.D. 2010); see also State v. Taylor, 67 S.W.3d 713, 715-16 (Mo. Ap p . S.D. 2002) (trial cou rt com m itted p lain error in im p osing consecu tive sentences w hen it cou ld have im p osed concu rrent sentences). B. Analysis. Ap p ellant argu es that his sentence of fifty years for forcible rap e is ou tsid e the range of p u nishm ent sp ecified in section 566.030.2, RSMo Su p p . 2009, w hich p rovid es that:

14


ARGUMEN T

w hich the au thorized term of im p risonm ent is life im p risonm ent or a term of years not less than five years, u nless: (1) in the cou rse thereof the actor inflicts seriou s p hysical inju ry or d isp lays a d ead ly w eap on or d angerou s instru m ent in a threatening m anner or d eviate sexu al intercou rse w ith m ore than one p erson , in w hich case the au thorized term of im p risonm ent is life im p risonm ent or a term of years not less than fifteen years[.] Ap p ellant argu es that the fifty-year sentence w as ou tsid e the m axim u m sentence au thorized by law , w hich w as life im p risonm ent, and a life sentence w ou ld be d eem ed to be a thirty-year sentence for p u rp oses of p arole eligibility. Ap p ellant’s Brief at 18; Section 558.019.4(1), RSMo Su p p . 2009. Ap p ellant asserts that this is a “sim p le issu e” of statu tory interp retation. Ap p ellant’s Brief at 14. Case law . Ap p ellant cites State v. W illiams, 828 S.W.2d 894, 902-03 (Mo. Ap p. E.D. 1992), w here the Eastern District held that the m axim u m sentence for forcible rap e u nd er § 566.030.2, RSMo 1986 (the sam e statu tory langu age), w as life im p risonm ent, and that a sentence of 100 years for attem p ted forcible rap e in that case w as in excess of the m axim u m . H ow ever, the W illiams Cou rt articu lated no reasoning to su p p ort that resu lt.

15


Forcible rap e or an attem p t to com m it forcible rap e is a felony for

S.W.2d 436, 438 (Mo. Ap p . E.D. 1987), and Toney v. State, 770 S.W.2d 411, 414 (Mo. Ap p . E.D. 1989), as au thority for its hold ing. In Charron, 743 S.W.2d at 438, the Cou rt stated that “[t]he m axim u m sentence au thorized for forcible rap e is life im p risonm ent.” H ow ever, in that case the d efend ant relied on a pred ecessor statute in argu ing that he w as w rongly convicted of a class A felony rather than a class B felony. Id. The Eastern District held that the d efend ant had relied on the w rong statu te and that the sentence of life im p risonm ent w as au thorized u nd er section 566.030.2. Id. Thu s, the Charron Cou rt’s statem ent that the “m axim u m sentence au thorized for forcible rap e” w as life im p risonm ent w as not central to the analysis. Id. In Toney, 770 S.W.2d at 413-14, the d efend ant claim ed that he w as charged and fou nd gu ilty of rap e and sod om y as class B felonies bu t sentenced to life im p risonm ent for class A felonies. The Cou rt held that the d efend ant w as p rop erly sentenced as a p ersistent offend er w ithin the statu tory range of p u nishm ent. Id. at 414. Fu rther, the Toney Cou rt inaccu rately d escribed section 566.030, RSMo Su p p . 1980, by stating that the statu te p rovid ed for a sentence “for a term of five years to life,” w hereas the statu te p rovid ed for a sentence of life im p risonm ent or a term of

16


Withou t exp lanation, the W illiams Cou rt m erely cited State v. Charron, 743

1

As W illiams d id not com p ort w ith the p lain langu age of the statu te, had no su p p orting analysis, and w as based on au thorities that w ere not p ertinent to the issu e p resented , this Cou rt shou ld d eclare that W illiams is not to be follow ed . Ap p ellant also qu otes State v. Davis, 867 S.W.2d 539, 542 (Mo. Ap p . W.D. 1993), for the p rop osition that “the u nclassified felony of forcible rap e is p unishable by life im p risonm ent or a term of years not less than five years and not gre ater than thirty years.” Ap p ellant’s Brief at 15, qu oting Davis, 867 S.W.2d at 542. H ow ever, the qu otation is taken ou t of context and is a reference to a p rior version of section 566.030. The Davis Cou rt w as su m m arizing the 1993 am end ment to section 566.030, changing the sentencing langu age, w hich had theretofore been in effect since 1980, to p rovid e that the u nclassified felony of forcible rap e w as p u nishable by life im p risonm ent or a term of years not less than five years and not greater than thirty years. Section 566.030, RSMo Su p p . 1993. H ow ever, section 566.030 w as am end ed

1

The crim e of “rap e” had been p reviou sly classified as a class B felony in the

absence of sp ecified aggravating circu m stances m aking it a class A felony, sect ion 566.030.2, RSMo 1978), bu t p u rsu ant to the 1980 am end m ents to section 566.030, the crim e of “forcible rap e” w as an u nclassified felony for w hich the authorized term of im p risonm ent w as “life im p risonm ent or a term of years not less than five years,” in the absence of sp ecified aggravating circu m stances m aking it a class A felony. 17


years not less than five years. 770 S.W.2d at 414.

im p risonm ent or a term of years not less than ten years;” thu s, the langu age p ertaining to a sen tence “not greater than thirty years” w as elim inated . Section 566.030.2, RSMo Su p p . 1994. Ap p ellant acknow led ges that other cases d o not give the statu te the rea d ing that Ap p ellant p rop oses. In State v. M aples, 306 S.W.3d 153, 157 n. 4 (Mo. Ap p. W.D. 2010), the Cou rt stated that the statu tory am end m ents to section 566.030, effective Janu ary 1, 1995, changed the m axim u m sentence am ou nts u nd er the op tion for a term of years, bu t the change w as not a red u ction to the m axim u m sentence—it w as an increase. The Cou rt stated that “Instead of a m axim u m sentence of thirty years, as w as the case for the old er versions of the statu tes for forcible rap e and forcible sod om y, the am end m ents to sections 566.030 and 566.060 d id not have a m axim u m sentence.” Id. Ap p ellant d ism isses the Cou rt’s statem ent in M aples as d icta. In M aples, the d efend ant relied on section 1.160, RSMo Su p p . 1993, w hich p rovid ed that “a d efend ant w ill be sentenced accord ing to the law in effect at the tim e the offense w as com m itted u nless a lesser p u nishm ent is requ ired by a change in the law creating the offense itself.” Id. The d efend ant acknow led ged that at the tim e the offenses of forcible rap e and forcible sod om y w ere com m itted (1994), the offenses w ere class A felonies and there w as no statu te of lim itations. Id. at 156. The M aples Cou rt held that the 1995 statu tory am end m ents w ere not a red uction in p unishment 18


again in 1994, effective Janu ary 1, 1995, to p rovid e that the sentence w as “life

to u nclassified felonies w hen a d angerou s instru m ent w as d isp layed in a threatening m anner; thu s, section 1.160 w as inap p lica ble. Id. at 157. The Cou rt fu rther stated that the 1995 am end m ents to sections 566.030 and 566.060 w ere “irrelevant” to the ap p eal, as they w ere not in effect at the tim e the offenses occu rred . Id. at 158. H ow ever, the Cou rt’s analysis that the amend ments to sections 566.030 and 566.060 d id not have a m axim u m sentence w as important in ad d ressing the d efend ant’s argu m ent in that case. M aples is entitled to consid eration as a Missou ri ap p ellate cou rt’s sou nd ly reasoned constru ction of section 566.030. In Thomas v. Dormire, 923 S.W.2d 533, 534 (Mo. Ap p . W.D. 1996), a p risoner filed a p etition for w rit of habeas corp u s, claim ing that the sentencing cou rt w as w ithou t ju risd iction to sentence him to 99 years, as a p rior and p ersistent offend er, for each of five cou nts of the u nclassified felony of forcible rap e. The Western District stated that a sentence of ninety-nine years w as a “term of years not less than five years” u nd er section 566.030.2, RSMo 1986. The Cou rt, citing W illiams, 828 S.W.2d at 902-03, and other cases,2 fu rther noted that w hile Thom as's sentences may not have been au thorized “u nd er cou rt interp retations” of section 566.030.2, the

2

Charron, 743 S.W.2d 436 (Mo. Ap p . E.D. 1987); State v. Olds, 831 S.W.2d 713, 721-22

(Mo. Ap p . E.D. 1992) (“Olds I”); Olds v. State, 891 S.W.2d 486 (Mo. Ap p . E.D. 1994) (“Olds II”). 19


in changing the offenses of forcible rap e and forcible sod om y from class A felonies

p atent as to p resent a ju risd ictional issu e, and the sentencing d id not p resent a ju risd ictional issu e.

Thomas, 923 S.W.2d at 534-35.

Thu s, W illiams w as not

d isp ositive in that case. Id. In Olds I, 831 S.W.2d at 722, also cited by the Cou rt in Thomas, the Eastern District held that the trial cou rt had not erred in sentencing the d efend ant to sentences of 75 years each on fou r cou nts of forcible rap e. In Olds II, 891 S.W.2d at 493, the Cou rt granted p ost-conviction relief and , relying on Davis, 867 S.W.2d at 542, held that the d efend ant’s sentence as a p rior and p ersistent offend er exceed ed the m axim u m allow able sentence of 50 years. The Thomas Cou rt, 923 S.W.2d at 534 n. 2, stated that the Olds cases d em onstrated “w hy the sentencing d efect requ ires analysis.” H ow ever, both Olds II and Davis w ere based on fau lty analysis. Olds II, 891 S.W.2d at 493, m istakenly cited W illiams, 828 S.W.2d at 902-03, for the p rop osition that the m axim u m term that a d efend ant cou ld receive for forcible rape w as life im p risonm ent, w hich, for p u rp oses of sentencing as a p rior and p ersistent offend er, equ aled 50 years. W illiams, 828 S.W.2d at 902-03, d id not ad d ress p rior and p ersistent offend er sentencing and d id not state that a life sentence w ou ld be consid ered to be 50 years. Section 566.030, RSMo Su p p . 1993, in effect at the tim e of Davis, 867 S.W.2d at 542, p rovid ed that the u nclassified felony of forcible rap e w as p u nishable by life im p risonm ent or a term of years not less than five years and not greater than thirty 20


Cou rt w as not able to reach su ch issu es w here the sentencing d efect w as not so

557.021.3(1)(a), RSMo, w hich sp ecifically ap p lies only to offenses d efined outsid e of the crim inal cod e, to consid er an u nclassified felony, su ch as forcible rap e, as a class A felony. Section 558.016.7, RSMo 2000, sets forth m axim u m term s for p ersistent offend ers for class A, class B, class C, and class D felonies, bu t d oes not set forth a m axim u m term for an u nclassified felony su ch as forcible rap e. The Davis Cou rt p erp etu ated the error of the Cou rt in W estcott v. State, 731 S.W.2d 326, 331 n. 6 (Mo. Ap p . W.D. 1987) (follow ed in W eeks v. State, 785 S.W.2d 331, 332 (Mo. Ap p . W.D. 1990)), conclu d ing that forcible rap e is a class A felony u nd er section 557.021.3(1)(a) w hen ap p lying the p ersistent offend er statu te. Section 558.016, RSMo 2000. Even the W estcott Cou rt, 731 S.W.2d at 331 n. 6, noted that section 557.021 governs the classification of offenses ou tsid e the Missou ri Penal Cod e. For cible rap e as d efined by section 566.030 is not an offense ou tsid e the Missou ri Penal Cod e. Becau se the Davis Cou rt consid ered forcible rap e to be a class A felony, it then m istakenly ap p lied section 558.011.1(1), stating that the au thorized term of im p risonm ent for a class A felony w as “a term of years not less than ten years and not to exceed thirty years, or life im p risonm ent.” Fu rther, the Davis Cou rt m istakenly relied on section 558.019.4(4), w hich set forth the m inim u m p rison term to be served , for the p rop osition that a sentence of life w as calcu lated to be fifty years. Davis, 867 S.W.2d at 543. Section 558.019.4 sets forth the m inim u m sentence to be served before eligibility for p arole, but shou ld not 21


years. Davis, 867 S.W.2d at 543, w as based on a fau lty analysis by ap p lying section

sentence. Ap p ellant also argu es that the State has “ap p arently” argu ed for a p osition consistent w ith Ap p ellant’s in the context of a case involving a Ru le 24.035 m otion. Ap p ellant’s Brief at 16, citing V anzandt v. State, 212 S.W.3d 228, 234-36 (Mo. Ap p . S.D. 2007). In V anzandt, the m ovant alleged that he had been involu ntarily ind u ced to p lead gu ilty to statu tory sod om y becau se the p lea cou rt and p lea cou nsel had m isinform ed him that the range of p u nishm ent w as “five to life” rather than an u nlim ited term of years. Id. at 234. Statu tory sod om y, like forcible rap e, carries a sentence of “life im p risonm ent or a term of years not less than five years[.]” Section 566.062, RSMo Su p p . 2012. The Sou thern District held that the m ovant’s argu m ent w as in error becau se the m axim u m p erm issible p unishment for statutory sod omy is life im p risonm ent. H ow ever, the au thority cited by the Cou rt, State v. Chapman, 167 S.W.3d 759, 761 (Mo. Ap p . E.D. 2005), stated in d icta that the m aximu m punishment for statu tory sod om y w as increased to life im p risonm ent in 1994. Fu rther, the V anzandt Cou rt held that assu m ing arguendo that section 566.062 “actu ally au thorizes an u nlim ited term of years as p u nishm ent, Vanzand t received su fficient inform ation to m ake an intelligent d ecision regard ing his p lea w hen he w as told by cou nsel and the cou rt that he cou ld be sentenced to life im p risonment.” V anzandt, 212 S.W.3d at 235. The Cou rt fou nd that the m ovant received a sentence of fifteen years, w h ich w as “w ell w ithin both the au thorized range of p u nishm ent 22


have been u sed to lim it the m axim u m term of years on a p ersistent offend er

the Cou rt fou nd that the m otion cou rt’s find ing that the m ovant w as not m isled abou t the range of p u nishm ent w as not clearly erroneou s. Id. V anzandt is lim ited to its facts: a d eterm ination w hether the m ovant’s gu ilty p lea w as volu ntary. Id. The broad er issu e as to w hat is an allow able sentence und er section 566.030 or like statu tes w as not p resented or ad d ressed in that case, nor shou ld it have been. V anzandt is not p ertinent au thority for the p rop osition that a trial cou rt cannot im p ose a fifty-year sentence for forcible rap e.3 Ap p lication of canons of constru ction. Ap p ellant argu es that the varying p reced ents ind icate that the term s of section 566.030 are am bigu ou s. H ow ever, section 566.030 is not ambigu ous. Section 566.030 su ffered a som ew hat tortu red history as a resu lt of a nu m ber of legislative revisions and the Eastern District’s incorrect 1992 interp retation in W illiams, 828 S.W.2d at 902-03. The objective of statu tory interp retation is to ascertain the intent of the legislatu re and to give effect to that intent as it is reflected in the p lain

3

Ap p ellant argu es that the p rosecu tor in the p resent case argu ed for a “m axim u m ”

sentence of life im p risonm ent. H ow ever, the p rosecu tor’s argu m ent is not bind ing as a constru ction of the statu te, and the fact remains that Appellant actually received a sentence of fifty years, w hich w as lighter than w hat he cou ld have received (L.F. 68-69). 23


and the range of p u nishm ent exp lained to him at the p lea hearing.” Id. Therefore,

“Where the legislative intent is m ad e evid ent by giving the langu age em p loyed in the statu te its p lain and ord inary m ean ing,” the review ing cou rt is “w ithou t au thority to read into the statu te an intent w hich is contrary thereto.” State v. Brushwood, 171 S.W.3d 143, 147 (Mo. Ap p . W.D. 2005). Where the statu tory langu age is am bigu ou s or w ill lead to an illogical resu lt, the Cou rt looks beyond the p lain and ord inary m eaning of the statu te. State v. Daniel, 103 S.W.3d 822, 826 (Mo. Ap p . W.D. 2003). “[A]m bigu ities in statu tes in crim inal cases m u st be constru ed against the State, bu t this ru le of strict constru ction d oes not requ ire that the cou rt ignore either com m on sense or evid ent statu tory p u rp ose.” State v. Harrison, 390 S.W.3d 927, 929 (Mo. Ap p . S.D. 2013) (qu oting State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992)). H ere, the langu age of section 566.030 is p lain and u nam bigu ou s. The statu te au thorizes a sentence of life im p risonm ent or a term of years not less than fifteen years. There is no m axim u m term of years exp ressed in the statu te. Ap p ellant’s sentence of fifty years is a sentence for a term of years w ithin the p lain langu age of section 566.030. Ap p ellant, how ever, invokes the ru le of lenity. “The ru le of lenity gives a crim inal d efend ant the benefit of a lesser p enalty w here a statu te is am bigu ou s and allow s for m ore than one interp retation.” State v. M yers, 248 S.W.3d 19, 27 (Mo. Ap p . E.D. 2008). This Cou rt has held that p rior to ap p lication of the ru le of lenity, other canons of constru ction need to be ap p lied ; thu s, this Cou rt has d escribed the 24


langu age of the statu te. State v. Lewis, 188 S.W.3d 483, 487 (Mo. Ap p . W.D. 2006).

2008). In State v. Slavens, 375 S.W.3d 915, 919 n. 2 (Mo. Ap p . S.D. 2012), citing State v. Ondo, 232 S.W.3d 622, 628 (Mo. Ap p . S.D. 2007), and Fainter v. State, 174 S.W.3d 718, 719 (Mo. Ap p . W.D. 2005), the Cou rt noted that som e cou rts have “started and end ed ” their statu tory interp retation review w ith the ru le of lenity, w ithou t requ iring that other canons of constru ction be ap p lied first. This Court’s preced ent, as set forth in Turner, 245 S.W.3d at 828, shou ld be follow ed , and the ru le of lenity shou ld be ap p lied only as a “d efau lt ru le” after ap p lying other canons of constru ction. A ccord, State v. Pesce, 325 S.W.3d 565, 575 (Mo. Ap p . W.D. 2010). “The ru le of lenity lies only w hen, even after seizing all sou rces of aid , w e can no m ore than gu ess as to w hat ou r legislatu re intend ed .” Harrison, 390 S.W.3d at 929. The ru le of lenity is not ap p licable becau se section 566.030 m ay be given its p lain langu age m eaning, and this Cou rt is not requ ired to gu ess at w hat the legislatu re intend ed . Significantly, Ap p ellant refers to “interp retation” of the statu te, Ap p ellant’s Brief at 14-15, bu t Ap p ellant m akes no argu m ent as to how the langu age of section 566.030 m ay be “interp reted ” to d isallow a sentence of 50 years, as a sentence of 50 years is p lainly a sentence for “a term of years not less than five years” as d escribed in section 566.030. Instead , Ap p ellant claim s that the m axim u m sentence is life im p risonm ent and that a sentence of 50 years is ou tsid e the m axim u m .

25


ru le of lenity as a “d efau lt ru le.” Turner v. State, 245 S.W.3d 826, 828 (Mo. banc

com p aring the statu te to section 571.015, RSMo 2000, w hich p rovid es for a sentence of “a term of not less than three years” for arm ed crim inal action. Section 571.015 d oes not p rovid e for an alternative sentence of life imprisonment. Ap pellant argues that “[t]hese d iffering statu tory p rovisions cannot . . . be read as p rovid ing for an id entical range of p u nishm ent.” Ap p ellant’s Brief at 15. In State v. Stoer, 862 S.W.2d 348, 353-54 (Mo. Ap p . S.D. 1993), the d efend ant, relying in p art on W illiams, 828 S.W.2d at 903, argu ed that a sentence of 100 years u nd er section 571.015 exceed ed the statu tory m axim u m becau se it exceed ed a life sentence. In rejecting the d efend ant’s argu m ent, the Cou rt stated that it w as not sw ayed by W illiams becau se the arm ed crim inal action statu te w as not involved in W illiams case and the cases cited in W illiams d id not involve a 100-year sentence. Stoer, 862 S.W.2d at 354. In Thurston v. State, 791 S.W.2d 893, 895 (Mo. Ap p . E.D. 1990), the Cou rt held that “[t]he absence of a stated m axim u m p enalty [in section 571.015] m erely ind icates a legislative intent that a d efend ant convicted of that offense m ay be sentenced to any term of years above the m inim u m , inclu d ing life im p risonm ent.” In Stoer, 862 S.W.2d at 354, the Cou rt qu oted State v. LaRue, 811 S.W.2d 40, 46 (Mo. Ap p . S.D. 1991), stating that “The absence of a stated m axim u m p enalty for arm ed crim inal action ind icates a legislative intent that an accu sed convicted of su ch crime m ay be sentenced to any term of years (not few er than three) u p to life 26


Ap p ellant argu es that his “interp retation ” of section 566.030 is su p p orted by

p enalty u nd er the arm ed crim inal action statu te, a sentence of one hu nd red years is p erm issible, and ou r hold ing in LaRue is not inconsistent w ith that view .” 862 S.W.2d at 353-54. Thu s, the arm ed crim inal action cases lend su p p ort to the p rop osition that a sentence for a fifty-year term of years is p erm issible here. It is tru e that the forcible rap e statu te, section 566.030, d iffers from the arm ed crim inal action statu te, section 571.015, in that it p rovid es for a term of im p risonm ent of life im p risonm ent or a term of years not less than a p rescribed nu m ber. Section 566.030 incorp orates “life im p risonm ent” and “term of years” as tw o d ifferent term s. Each w ord in a statu te m u st be given m eaning so that it is not red u nd ant. State v. Harrell, 342 S.W.3d 908, 913 n. 9 (Mo. Ap p . S.D. 2011). The reasoning of cases su ch as Thurston and LaRue is germ ane to the extent that the legislatu re exp ressed its intent in section 566.030 that there is no m axim u m on the term of years. H ow ever, a “term of years” and “life im p risonm ent” are tw o d ifferent m easu rem ents w ith tw o d ifferent im p orts. Obviou sly the term of a p erson’s life is ind efinite and w ou ld not be know n to the sentencing cou rt, absent extraord inary circu m stances. A term of years, in contrast, is fixed , by d efinition. When a cou rt im p oses a sentence of life im p risonm ent, it d oes so w ith the obviou s intent to m ake a statem ent that the d efend ant d eserves to be in p rison for the rest of his life.

Althou gh a sentence of 100 years, for exam p le, m ay ap p ear to be

im p ractical, it reflects a sentencing cou rt’s belief that a d efend ant d eserves to be in 27


im p risonm ent.” The Stoer Cou rt held that “As Thurston constru es the m axim u m

sentenced to life im p risonm ent or a term of years makes a d ifference for purposes of p arole. For p u rp oses of d eterm ining the m inim u m p rison term to be served , a sentence of life is calcu lated to be thirty years, bu t a sentence of over seventy -five years is calcu lated as a sentence of seventy-five years. Section 558.019.4. Thu s, w hether the sentence is exp ressed as a life sentence or a term of years has d iffering consequ ences.5 Ap p lying the p lain langu age of the statu te, a sentence of fifty years is a sentence for “a term of years not less than five years.” Section 566.030. The Eastern District reached a contrary resu lt in 1992, bu t the hold ing in W illiams d id not com p ort w ith the p lain langu age of the statu te. W illiams, 828 S.W.2d at 902-03. Becau se W illiams d id not com p ort w ith the p lain langu age of the statu te, had no

4

The record reflects that Ap p ellant w as born on Ap ril 13, 1976 (L.F. 10).

5

Ap p ellant ap p arently believes he w ou ld receive a benefit w ith a life sentence,

w hich w ou ld be treated as thirty years for p u rp oses of p aro le eligibility. Ap p ellant’s Brief at 18; section 558.019, RSMo Su p p . 2009. Becau se forcible rape is a d angerou s felony, section 556.061(8), RSMo Su p p . 2009, Ap p ellant w ou ld be requ ired to serve eighty-five p ercent of his sentence of a term of years, or reach the age of seventy and serve at least forty p ercent of the sentence, w hichever occu rs first, before becom ing eligible for p arole. Section 558.019.3, RSMo Su p p . 2009. 28


4

p rison for longer than any realistic natu ral life. Further, w hether the d efend ant is

shou ld d eclare that W illiams is not to be follow ed . Like section 566.030, other sex offense statu tes p rovid e for an au thorized term of im p risonm ent of “life im p risonm ent or a term of years not less than five years.” Section 566.032, RSMo Su p p . 2012 (statutory rape); section 566.060, RSMo Supp. 2012 (first d egree sod omy); section 566.062, RSMo Su p p . 2012 (statu tory sod om y). Thu s, it shou ld be ap p arent that this statu tory langu age has been relied upon for d ecad es in many cases and that m any sentences other than life sentences have been im p osed for these offenses. Ap p ellant’s argu m ent p resents am bigu ity becau se it p r ovid es no d efinition as to w hat the m axim u m allow able term of years w ou ld be. Ap p ellant d oes not rely on the analysis in Davis, 867 S.W.2d at 543, for the p rop osition that a sentence of a term of years is lim ited to thirty years for p u rp oses of p ersistent offend er sentencing. As p reviou sly d iscu ssed , Davis w as based on a fau lty analysis by relying on section 557.021.3(1)(a) to classify forcible rape as a class A felony for p u rp oses of p ersistent offend er sentencing. Id. Section 557.021 governs the classification of offenses ou tsid e the Missou ri Penal Cod e, bu t forcible rap e is d efined by section 566.030 and is not an offense ou tsid e the Missou ri Penal Cod e. Ap p ellant’s sentence of fifty years for forcible rap e as a p ersistent offend er w as au thorized by law .

6

Charron, 743 S.W.2d at 438; Toney, 770 S.W.2d at 414. 29


6

su p p orting analysis, and w as based on fau lty reliance on p reced ent, this Cou rt

rap e. Ap p ellant’s p oint shou ld be d enied .

30


The trial cou rt d id not err in sentencing Ap p ellant to fifty years for forcible

The State agrees that Appellant’s convictions on Counts VIII through XII (violation of a protective order) violated double jeopardy, as the proof of violation of a protective order w as also necessary to establish the offense of aggravated stalking (Count VII). A. Preservation and the standard of review . Ap p ellant conced es that he d id not raise the d ou ble jeop ard y issu e at trial (L.F. 63-64). Ap p ellant requ ests p lain error review . An ap p ellate cou rt has the d iscretionary au thority to review for p lain error affecting a d efend ant's su bstantial rights “w hen the cou rt find s that m anifest inju stice or m iscarriage of ju stice has resu lted therefrom .” Su p rem e Cou rt Ru le 30.20; State v. Carney, 195 S.W.3d 567, 570 (Mo. Ap p . S.D. 2006). Plain error review is u tilized sp aringly, and a d efend ant seeking su ch review bears the bu rd en of show ing that p lain error has occu rred . State v. Lloyd, 205 S.W.3d 893, 906-07 (Mo. Ap p . S.D. 2006). Plain error review involves a tw o-step process. State v. Drudge, 296 S.W.3d 37, 40 (Mo. Ap p . E.D. 2009). “First, the cou rt m u st d eterm ine w hether the trial cou rt com m itted an evid ent, obviou s and clear error, w hich affected the su bstantial rights of the ap p ellant.” Id. Only if this Cou rt id entifies plain error d oes the Cou rt p roceed to the second step of d eterm ining w hether m anifest inju stice or a m iscarriage of ju stice resu lted . Id.

31


II. (double jeopardy)

be d eterm ined form the face of the record is entitled to p lain error review . State v. Smith, 370 S.W.3d 891, 894-95 (Mo. Ap p . E.D. 2012). B. Analysis. In Smith, id. at 895, the Eastern District fou nd that the offense of violation of a p rotective ord er, section 455.085.2, RSMo 2000, is inclu d ed in the offense of aggravated stalking, section 565.225, RSMo Su p p . 2010, becau se p roof of the sam e cond u ct is requ ired to su stain both convictions. H ere, Ap p ellant w as charged w ith com m itting aggravated stalking on or abou t Decem ber 5 throu gh 21, 2010, by rep eated ly calling Victim and w riting her letters, w hich violated an existing ord er of p rotection (L.F. 11). In Cou nts VIII throu gh XII, Ap p ellant w as charged w ith violating a p rotective ord er by either calling or w riting to Victim (L.F. 12). Thu s, p roof of violation of a p rotective ord er w as necessary to establish both convictions. The State conced es that, u nd er the ru ling of Smith, id., the convictions for violation of a p rotective ord er (Cou nts VII throu gh XII) violated the d ou ble jeop ard y clau se.

32


Missou ri cou rts have held that a claim of a d ou ble jeop ard y violation that can

Ap p ellant’s convictions and sentences shou ld be affirm ed , excep t that the convictions on Cou nts VIII throu gh XII (violation of a p rotective ord er) m ay be vacated as violative of the d ou ble jeop ard y clau se. Resp ectfu lly su bm itted , CH RIS KOSTER Attorney General / s/ Timothy A. Blackwell TIMOTH Y A. BLACKWELL Assistant Attorney General Missou ri Bar N o. 35443 P. O. Box 899 Jefferson City, MO 65102 Phone: (573) 751-3321 Fax: (573) 751-5391 tim .blackw [email protected] o.gov ATTORN EYS FOR RESPON DEN T STATE OF MISSOURI

33


CON CLUSION

I hereby certify: 1. That the attached brief com p lies w ith the lim itations contained in Missouri Su p rem e Cou rt Ru le 84.06 and contains 7,465 w ord s, exclu d ing the cover and certification, as d eterm ined by Microsoft Word 2007 softw are; and 2. That a cop y of this notification w as sent throu gh the eFiling system on this 14th d ay of October, 2013, to: Jessica H athaw ay 1010 Market Street, Su ite 1100 St. Lou is, Missou ri 63101 / s/ Timothy A. Blackwell TIMOTH Y A. BLACKWELL Assistant Attorney General Missou ri Bar N o. 35443 P.O. Box 899 Jefferson City, Missou ri 65102 Phone: (573) 751-3321 Fax (573) 751-5391 ATTORN EY FOR RESPON DEN T STATE OF MISSOURI

34


CERTIFICATE OF COMPLIAN CE AN D SERVICE