State v. Warren

1

STATE OF MISSOURI, Respondent, v. SOLOWMENN JAMES WARREN, Appellant.

No. WD86183

Court of Appeals of Missouri, Western District, First Division

November 5, 2024

Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

Before Lisa White Hardwick, Presiding Judge, Cynthia L. Martin Judge and Janet Sutton, Judge

Cynthia L. Martin, Judge

Solowmenn James Warren ("Warren") appeals from the trial court's judgment convicting him of the class A misdemeanor of domestic assault in the fourth degree, in violation of section 565.076;^[1] the class D felony of kidnapping in the second degree, in violation of section 565.120; the class C felony of unlawful possession of a firearm, in violation of section 571.070; the class E felony of unlawful use of a weapon, in violation of section 571.030; and three counts of the unclassified felony of armed criminal action in violation of section 571.015. Warren argues that the trial court committed error by enhancing his sentence for the class C felony of unlawful possession of a firearm using the sentencing range authorized for a class B felony pursuant to sections 558.016.1 and .7 because the offense had already been enhanced from a class D to a class C felony under section 571.070. Warren also requests plain error review of the trial court's alleged failure to swear in the jury throughout trial. Finding no error, we affirm.

Factual and Procedural History^[2]

Warren does not challenge the sufficiency of the evidence to support his convictions. In September of 2022, Warren and Victim were living in an apartment in Jefferson City, Missouri. During the evening of September 21, 2022, Warren was behaving distantly and repeatedly asked Victim if she wanted him to leave. Victim told Warren that she wanted him to be gone by the time she returned from work the following day.

At around 12:50 a.m. on September 22, 2022, Victim began getting ready for work. Victim was in her kitchen when she turned to see Warren pointing a gun at her. Warren ushered Victim into an adjoining room at gunpoint where he berated and insulted her. Warren demanded Victim take him to another location. Victim refused and told Warren that she needed to go to work but Warren continued to demand Victim take him somewhere else. Victim again refused and told Warren that he was just going to have to kill her. Warren cocked the gun he was holding and said "[y]ou think I'm playing with you[?] I'll freaking kill you right now."

After Victim reluctantly agreed to take Warren "somewhere," he began packing his belongings. While Warren was packing, Victim left a handwritten note in the apartment that said: "If I am dead, [Warren] did it at 1:45 and tell my kids I love them." Victim and Warren then left the apartment and sat in Victim's car. After arguing over the spare key to Victim's apartment, Victim told Warren he could stay in her apartment until she finished her shift at work. Warren returned to the apartment and Victim left for work.

At work, Victim "blocked out" the events that had just occurred and worked her shift as she normally would. Towards the end of her shift, Victim became worried for her daughter's safety because her daughter had a key to the apartment. Victim told her boss about what had happened that morning. Victim then called the police at her boss's instruction. Once law enforcement arrived at Victim's apartment, they breached the front door and discovered Warren standing at the end of the hallway. Warren initially fled into the apartment's bedroom but after a few seconds voluntarily surrendered to police.

Warren was charged with the class A misdemeanor of domestic assault in the fourth degree (Count I), the class D felony of kidnapping in the second degree (Count II), the class C felony of unlawful possession of a firearm (Count III), the class D felony of failing to register as a sex offender as a second offense (Count IV), the class E felony of unlawful use of a weapon (Count VI), and three counts of the unclassified felony of armed criminal action (Counts V, VII, and VIII). The charge of unlawful possession of a firearm, Count III, was charged as a class C felony instead of a class D felony because the statute for that offense, section 571.070, permits an enhanced charge if an offender "has been convicted of a dangerous felony as defined in section 556.061." Section 571.070.2. The State identified Warren's 2021 conviction of statutory rape in the second degree as the dangerous felony that supported enhancing his charged offense from a class D felony to a class C felony.

In an amended information, the State notified Warren that it intended to seek enhanced terms of imprisonment for each of Warren's classified felony charges (Counts II, III, IV, and VI) pursuant to section 558.016 on the basis that Warren is "a prior offender under [s]ection 558.016" and "a persistent offender . . . under [s]ections 558.016 and 557.036." Section 558.016.1(1), read in combination with section 558.016.7, permits a trial court to impose an enhanced sentence at the authorized term of imprisonment for the next highest felony classification for a charged offense if the convicted offender is a persistent offender defined by section 558.016.3 as "one who has been found guilty of two or more felonies committed at different times."^[3] The amended information relied on Warren's prior convictions of felony domestic assault in 2009 and of felony escape from confinement in 2001 to argue that Warren was a "persistent offender" whose sentences for classified felony convictions should be enhanced to the authorized term of imprisonment for the next highest felony classification.

Before trial, Warren filed a motion to strike the State's proposed sentencing enhancement for Count III, the charge for unlawful possession of a firearm.^[4] Warren argued that he had been charged with the class C felony of unlawful possession of a firearm under section 571.070.2 instead of a class D felony based on his prior commission of a dangerous felony and that this qualified as an enhancement of his term of imprisonment under section 558.016.1(2). Warren argued he could not also be subject to an enhanced term of imprisonment pursuant to section 558.016.1(1) and .7 because section 558.016 as amended effective January 1, 2017, prohibits the "double enhancement" of sentences. The trial court denied Warren's motion.

Following a trial, the jury found Warren guilty on all counts except for Count IV (failure to register as a sex offender as a second offense). The trial court entered a judgment of conviction and sentence ("Judgment"). Warren was sentenced to one year in the Cole County jail on his misdemeanor conviction (Count I), and to imprisonment in the Missouri Department of Corrections on the remainder of his felony convictions. The trial court sentenced Warren to ten years on Count II, fifteen years on Count III, five years on Count V, seven years on Count VI, five years on Count VII, and five years on Count VIII. Warren's sentences on Counts I-III and VI were set to run concurrently with each other while his sentences on Counts V, VII, and VIII were set to run concurrently with each other but consecutively to the sentences on Counts I-III and VI. In total, Warren was sentenced to a term of imprisonment of twenty years with one year to be served in the Cole County Jail and nineteen years to be served in the Department of Corrections.

The sentences imposed for each of Warren's classified felony convictions (Counts II, III, and VI) were the highest permitted within the authorized range of imprisonment for an offense that was one felony class higher than the classification of offense for which Warren was found guilty as authorized by sections 558.016.1(1) and .7.

Warren appeals.

Analysis

Warren raises two points on appeal. Point One argues that the trial court erred in imposing an enhanced sentence for Warren's conviction of the class C felony of unlawful possession of a firearm (Count III) in the range authorized for a class B felony. In Point Two, Warren claims the trial court plainly erred by failing to administer the oath and swear in the jury at any point during trial.

The trial court did not err in imposing an enhanced sentence for Warren's conviction of unlawful possession of a firearm in the range authorized for class B felonies. (Point One)

In his first point on appeal, Warren argues that the trial court erred by enhancing the sentence for his conviction of the class C felony of unlawful possession of a firearm to a sentence authorized for a class B felony pursuant to sections 558.016.1(1) and .7. Warren argues: that his offense had already been enhanced from a class D to a class C felony pursuant to section 571.070.2; that enhancement of his offense under section 571.070.2 qualifies as a sentencing enhancement authorized by section 558.016.1(2);^[5]and that the trial court erroneously enhanced his sentence a second time when it also applied sections 558.016.1(1) and .7 to sentence him in the authorized range of imprisonment for a class B felony. Warren argues that the amendments to section 558.016 which became effective on January 1, 2017, prohibit the State from seeking "double enhancement" of sentences under more than one subsection of section 558.016.1.

Warren's point on appeal requires us to interpret section 558.016 as amended effective January 1, 2017. "Statutory interpretation is an issue of law reviewed de novo." State v. Yount, 642 S.W.3d 298, 300 (Mo. banc 2022) (quoting State v. Richey, 569 S.W.3d 420, 423 (Mo. banc 2019)). "This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue."...