STATE OF MISSOURI, Plaintiff-Respondent v. DAVID JAMES MILCENDEAU

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD35151
) Filed: January 31, 2019
DAVID JAMES MILCENDEAU, )
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable John D. Beger, Circuit Judge
AFFIRMED
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.
1
All statutory references are to RSMo Cum. Supp. (2013) unless otherwise
indicated. All rule references are to Missouri Court Rules (2018).
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.
2
This followed the format for submitting statutory sodomy in the first degree in
Paragraph First of MAI-CR 3d 320.11 (2016 ed.). It did not follow the format for
submitting statutory sodomy in the first degree in Paragraph First of MAI-CR 4th 420.16
(2017 ed.), which omitted any reference to the city or county where the offense was
committed. The latter instruction should have been used in Defendant’s trial because it
occurred after January 1, 2017. See MAI-CR 4th (2017 ed.), “Effective Dates” at 27.
2
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
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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
3
All references to § 476.410 are to RSMo (2000).
4
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)
4
This principle is supported by the plain language of § 545.030.1, which states, in
relevant part, that “[n]o indictment or information shall be deemed invalid, nor shall the
trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected
… (8) For want of a proper or perfect venue; nor (9) For want of any venue at all[.]”
§ 545.030.1(8)-(9) RSMo (2000); see State v. Leigh, 423 S.W.2d 690, 692 (Mo. 1968);
State v. Barnes, 980 S.W.2d 314, 321 (Mo. App. 1998).
5
(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
5
In relevant part, this constitutional provision gives a defendant the right to “a
speedy public trial by an impartial jury of the county.” MO. CONST. art. I, § 18(a). The
statute states that “[t]he division of a circuit court in which a case is filed laying venue in
the wrong division or wrong circuit shall transfer the case to any division or circuit in which
it could have been brought.” § 476.410.
6
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 concerned, defend all suits against the state or county, and prosecute
forfeited recognizances and actions for the recovery of debts, fines,
penalties and forfeitures accruing to the state or county. In all cases, civil
and criminal, in which changes of venue are granted, the prosecuting
attorney shall follow and prosecute or defend, as the case may be, all the
causes, for which, in addition to the fees now allowed by law, the
prosecuting attorney shall receive his or her actual expenses.
§ 56.060.1. According to Defendant, the failure to prove venue at trial means that the
information filed by the Pulaski County prosecutor was void. Defendant cites no authority
to support that proposition, and we have discovered none in our independent research.
Defendant’s argument is refuted by § 545.030.1(8)-(9) RSMo (2000), which states that
“[n]o indictment … shall be deemed invalid … (8) For want of a proper or perfect venue;
nor (9) For want of any venue at all[.]” Id. A similar argument, based on § 56.060, was
rejected in Campbell v. Dir. of Revenue, 297 S.W.3d 656, 659 (Mo. App. 2009), and State
v. Jackson, 942 S.W.2d 942, 944 (Mo. App. 1997). For all of the foregoing reasons,
Defendant has failed to establish facially substantial grounds for believing that a manifest
injustice or miscarriage of justice has occurred. Therefore, we decline to exercise our
discretionary authority to review for plain error. Point 1 is denied.
Point 2
In Defendant’s second point, he contends the trial court plainly erred by allowing
the prosecutor to argue that there was no county line near Defendant’s home. Defendant
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argues that the trial court’s failure to act sua sponte to intervene in the prosecutor’s
argument meant the State was not required to prove all required facts.
“A conviction will be reversed based on plain error in closing argument only when
it is established that the argument had a decisive effect on the outcome of the trial and
amounts to manifest injustice.” State v. Edwards, 116 S.W.3d 511, 536-37 (Mo. banc
2003) (emphasis added); Walter, 479 S.W.3d at 124. Such an effect is demonstrated where
there is a reasonable probability the verdict would have been different in the absence of the
argument. State v. Chism, 252 S.W.3d 178, 186 (Mo. App. 2008). “In reviewing closing
arguments, this Court examines the context of the argument made in light of the entire
record.” Walter, 479 S.W.3d at 124. Our review of the record demonstrates no basis to
believe a plain error occurred here.
As noted in Point 1, Defendant waived the venue issue by proceeding to trial
without objection and by obtaining a change of venue. We are hard-pressed to discern how
an argument about a waived issue had a decisive defect on the jury’s verdict. Furthermore,
the issue of venue should not have been submitted to the jury to decide. See State v.
Roggenbuck, 387 S.W.3d 376, 382 (Mo. banc 2012) (“The jury is not required to find facts
that are not elements of the offense, such as the location of the crime for venue purposes.”);
MAI-CR 4th 420.16 (only requiring in Paragraph First that the jury find the crime of
statutory sodomy occurred within Missouri); Taylor, 238 S.W.3d at 150 (if a defendant
objects, the judge will determine the facts as to venue). By not raising the issue before
trial, Defendant invited that error. See Taylor, 238 S.W.3d at 150. In Taylor, defense
counsel failed to raise the venue issue before trial commenced. Id. at 147. During closing
argument, the trial judge prohibited defense counsel from arguing that the State failed to
8
prove venue as required by the verdict-directing instruction. Id. at 147-48. Our Supreme
Court decided that the defendant suffered no prejudice from that procedure:
Because the trial court used MAI-CR 320.01 as the jury instruction in this
case, the jury’s verdict of guilty reflects its decision, beyond a reasonable
doubt, that the rape occurred in the city of St. Louis. The jury’s
determination that the state had met this higher burden of proof indicates
that the failure to address venue in a pretrial proceeding was not prejudicial.
Id. at 151. We reach the same conclusion here.
By including venue information in Instruction No. 10, the verdict-directing
instruction for the sodomy count, the State assumed an unnecessary burden. The
prosecutor’s argument addressing the venue issue drew neither an objection nor a response
during Defendant’s closing argument. Our review of the record does not persuade us that
the prosecutor’s brief comment had a decisive effect on the jury’s decision. Instead, as in
Taylor, Defendant suffered no prejudice because the jury found in the State’s favor on the
venue issue. Point 2 is denied.
The judgment of the trial court is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
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