                                         In the
                              Missouri Court of Appeals
                                    Western District

STATE OF MISSOURI,                          )
                                            )
               Respondent,                  )     WD75388
                                            )
v.                                          )     OPINION FILED: May 27, 2014
                                            )
REYES E. OLIVAS,                            )
                                            )
                Appellant.                  )

               Appeal from the Circuit Court of Cass County, Missouri
                       The Honorable Jacqueline A. Cook, Judge

     Before Division Two: Victor C. Howard, Presiding Judge, Alok Ahuja, Judge and
                                  Gary D. Witt, Judge


                                   INTRODUCTION

        This is an appeal from a Cass County Circuit Court judgment convicting Appellant

Reyes Esteban Olivas ("Olivas") of first-degree murder and armed criminal action, for

which he was given consecutive sentences of life imprisonment without the possibility of

parole and life imprisonment, respectively. On January 8, 2010, a juvenile petition was

filed in Cass County Circuit Court alleging that Olivas (age sixteen at the time of the

offense) committed conduct that would constitute first-degree murder and armed criminal

action if committed by an adult. Following a February 19, 2010 hearing, the juvenile
division of the circuit court entered an order dismissing the juvenile court petition and

relinquishing juvenile court jurisdiction over Olivas to allow his prosecution under the

general law. Olivas was thereafter indicted in Cass County Circuit Court on one count of

first-degree murder and one count of armed criminal action for the January 7, 2010

murder of K.R.,1 Olivas's cousin.

         Olivas, who waived jury sentencing, was tried by a jury. The jury, which was

instructed, in the alternative, on both first- and second-degree murder, found Olivas

guilty of first-degree murder as well as armed criminal action. The court later sentenced

Olivas to consecutive sentences of life imprisonment without the possibility of probation

or parole on the murder charge and life imprisonment for the armed criminal action

charge. Olivas appeals.

         On appeal, Olivas asserts two points. First, Olivas challenges the sufficiency of

the evidence to prove deliberation in order to convict him for the first-degree murder

charge. Second, Olivas raises a constitutional challenge to section 565.020.22 which

mandates that the sentence for a juvenile defendant be life without eligibility for

probation or parole. Olivas's first claim lacks merit, but his constitutional challenge is

meritorious in light of recent decisions in Eighth Amendment jurisprudence. The State

concedes that Point Two has merit. Therefore, we affirm in part and remand for re-

sentencing consistent with this opinion.




         1
             We use the victim's initials pursuant to Section 566.226.
         2
             All statutory references are to RSMo 2000 cumulative as currently supplemented unless otherwise
indicated.

                                                          2
                            FACTS AND PROCEDURAL HISTORY3

        In late November 2009, Olivas, who was then sixteen years old, moved in with his

maternal uncle, Manuel Rios, after Olivas had "some problems" while living in a nearby

town with other relatives. Mr. Rios lived in Harrisonville with his wife, Monica, and

their three children, K.R. and her two younger brothers.

        On January 7, 2010, school was closed because of snow. Mr. Rios drove Mrs.

Rios to work that morning because of the bad roads. K.R., who was then fourteen years

old, her two younger brothers, and Olivas stayed home with no adults. The office where

Mrs. Rios worked closed early that day because of the weather, and she called Mr. Rios

around 11:30 a.m. to pick her up. While K.R.'s parents were running some errands

before returning home, K.R. called her mother to say that she, her brothers, and Olivas

were watching television and playing.

        Forty-five minutes later, Mrs. Rios received another phone call from the house,

but the only thing she heard sounded like a moan, and then the phone went dead. Mrs.

Rios then repeatedly called the house, but she got no answer. She also sent text messages

to Olivas's cell phone, but received no response from him. K.R.'s parents arrived home

about an hour after receiving the second phone call from the house. Their two young

sons told them that something was wrong with K.R. because she was "full of catsup" in

the parents' bedroom. K.R.'s parents found her lying bloody and unconscious on their




        3
        We view the facts in the light most favorable to the verdict. State v. Peal, 393 S.W.3d 621, 623 n.1 (Mo.
App. W.D. 2013).

                                                        3
bedroom floor; the phone in the bedroom had been unplugged from the wall. Olivas was

not in the house.

       K.R. was declared dead when the ambulance arrived. She had a laceration to the

left side of her body, from which her intestines were protruding. K.R. suffered multiple

stabbing, puncture, and incised wounds; she also had blunt force injuries. There were

two incised wounds to her neck and one on the right side of her chest. A stab wound on

the side of K.R.'s chest injured a rib, her stomach, and the small intestine. Another stab

wound to the abdomen cut K.R.'s aorta and caused bleeding into the abdomen. An

incised wound was found on K.R.'s ribcage, and two puncture wounds were on her

abdomen. K.R. had two stab wounds in her back, one of which went through her ribs,

both lobes of her left lung, and through a rib on the front of her body. Another stab

wound to her lower back injured her rib, diaphragm, and mesentery. K.R. had two

incised wounds on her back as well. Blood spatter was on the headboard.

       K.R. also had several defensive wounds on her fingers and hands and a stab

wound on her left arm. She suffered blunt-force trauma on her head and back, and

contusions were found on her chest and abdomen.         The cause of K.R.'s death was

multiple stab wounds that resulted in excessive bleeding; the stab wounds to the aorta and

to the lung were each fatal by themselves. Police discovered footprints in the snow

leading from the open door in the back of the garage, and they eventually received

information that Olivas was at a nearby house watching TV with friends. When police

arrived at the house, Olivas locked himself in a bathroom and would not come out or



                                            4
respond to the officers. Olivas was arrested after officers picked the bathroom lock and

entered.

       After Olivas received Miranda4 warnings and waived them, he was interviewed by

a detective in the presence of his uncle (not K.R.'s father, but his mother's brother-in-

law), and a juvenile officer. Olivas admitted that he stabbed K.R. He said that he

stabbed her because she had called him "stupid" while she was on the phone. Olivas then

went to the kitchen and got a big knife with a wide blade and brown handle off the

kitchen counter. He said that he then went upstairs (K.R.'s brothers were still downstairs)

and pointed the knife at K.R., who was scared. K.R., who was by the phone, told Olivas

to stop pointing the knife at her or she would call her parents.

       Olivas said that he then stabbed K.R., first in the right side of her stomach and

then two more times in the side and back. He admitted stabbing her in the back as K.R.

attempted to get away from him. He conceded that he might have stabbed her more than

three times. K.R. fell down and stopped moving after he stabbed her, but he knew that

she was still alive because he could hear her breathing louder than normal. Olivas said

that he then went downstairs and packed a bag with a pair of jeans and a couple of shirts.

When Olivas came back upstairs, he saw K.R. had gotten up and was on the floor by the

bathroom door. Olivas dragged her across the floor and leaned her up against the bed.

He then put the knife in a dresser drawer in the bedroom and left the house. Testing on

the knife police recovered from the dresser drawer revealed K.R.'s blood.



       4
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                      5
         Olivas provided the police with a written statement consistent with his oral

statement.

         While Olivas was being held in a juvenile detention facility in early February

2010,5 he told another juvenile housed in the facility that he had killed his cousin. Olivas

told the juvenile that he had asked K.R. to have sex with him and that she had responded,

"Are you stupid?" Afraid that K.R. might tell her parents about this, Olivas said that he

got a knife from the kitchen and stabbed K.R. He also said that K.R. ran away from him,

but that he chased her into a bedroom. Olivas said that he then stabbed K.R. perhaps

seven times. He also claimed to have done "some sexual stuff" with her body, but Olivas

offered no details about the sexual acts.6 Olivas said that he sat K.R. up so she would

bleed out and die faster. He also took out the phone line so no one could call the house;

he then left the house on foot.

         Olivas did not testify at trial, and he offered no evidence. The jury convicted him

of murder in the first degree and armed criminal action. He waived jury sentencing and

was sentenced by the trial court.

                                                  ANALYSIS

         Olivas challenges the sufficiency of the evidence to prove deliberation for the

first-degree murder conviction and raises a constitutional challenge to section 565.020.27

which mandates that the sentence for a juvenile defendant convicted of first-degree



         5
          Olivas was in Cass County's Juvenile Justice Detention Facility from January 7, 2010, until at least
February 19, 2010, the date the juvenile court relinquished its jurisdiction over Olivas.
        6
          K.R's body showed no signs of sexual abuse and no semen was found on it.
        7
          All statutory references are to RSMo 2000 cumulative as supplemented unless otherwise indicated.

                                                          6
murder is solely limited to life in prison without the possibility of probation or parole

("LWOP").

                                         POINT I

      In Point One, Olivas alleges that because there was insufficient evidence that he

deliberated before killing K.R. it was error for the trial court to enter a judgment of

conviction on that count. We disagree.

                                  Standard of Review

              [Our] review of the sufficiency of the evidence is limited to whether
      the State has introduced sufficient evidence for any reasonable juror to have
      been convinced of the defendant's guilt beyond a reasonable doubt. This is
      not an assessment of whether the Court believes that the evidence at trial
      established guilt beyond a reasonable doubt but rather a question of
      whether, in light of the evidence most favorable to the State, any rational
      fact-finder could have found the essential elements of the crime beyond a
      reasonable doubt. In reviewing the sufficiency of the evidence, all evidence
      favorable to the State is accepted as true, including all favorable inferences
      drawn from the evidence; all evidence and inferences to the contrary are
      disregarded. When reviewing the sufficiency of evidence supporting a
      criminal conviction, the Court does not act as a super juror with veto
      powers, but gives great deference to the trier of fact. This Court will not
      weigh the evidence anew since the fact-finder may believe all, some, or
      none of the testimony of a witness when considered with the facts,
      circumstances and other testimony in the case.

State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011) (citations and quotations

omitted).

                                         Discussion

      Section 565.020.1 states that "[a] person commits the crime of murder in the first

degree if he knowingly causes the death of another person after deliberation upon the

matter." "Deliberation means cool reflection for any length of time no matter how brief."


                                             7
§ 565.002(3). "Deliberation is not a question of time—an instant is sufficient—and the

reference to 'cool reflection' does not require that the defendant be detached or

disinterested." State v. Nathan, 404 S.W.3d 253, 266 (Mo. banc 2013). "Instead, the

element of deliberation serves to ensure that the jury believes the defendant acted

deliberately, consciously and not reflexively." Id. Further, deliberation need only be

momentary. State v. Frazier, 404 S.W.3d 407, 414 (Mo. App. W.D. 2013) (citation

omitted).

       "Evidence of multiple stab wounds, repeated blows, the failure to seek medical

help, a prolonged struggle, ample opportunity to stop the attack, or that the defendant

brooded over his actions before taking them can support an inference of deliberation."

Frazier, 404 S.W.3d at 414 (citations omitted). "Proof of deliberation does not require

proof that the defendant contemplated his actions over a long period of time, only that the

killer had ample opportunity to terminate the attack once it began." State v. Johnston,

957 S.W.2d 734, 747 (Mo. banc 1997) (internal citations omitted).

       Evidence that a defendant had to take a few steps towards a victim before grabbing

and stabbing her with a knife gives rise to the reasonable inference that the defendant

reflected for at least the time it took to reach the victim before stabbing her. State v.

Clemmons, 753 S.W.2d 901, 906 (Mo. banc 1988) (citations omitted). "These inferences

alone support a jury finding of deliberation." Id.

       Here, Olivas became angry, went to the kitchen, selected a large butcher knife, and

followed K.R. upstairs where he threatened her with the knife. When she warned him

that she would call her parents, he said "do it." Inherent to this scenario was a deliberate

                                             8
pause in time as Olivas waited to see if K.R. would make the phone call. When she did

begin to call them, he attacked her and stabbed her repeatedly. The evidence revealed

multiple stab wounds, multiple defensive wounds, and a victim who was still alive and

trying to escape. See Frazier, 404 S.W.3d at 414-15. Olivas had ample time to stop the

attack after the first stab wound. However, instead of stopping his attack and attempting

to save K.R., Olivas found her trying to walk so he drug her back to the bedroom and sat

her up so "that she could bleed out and die faster." He then unplugged the phone so she

could not seek assistance and left the house.

       As our Supreme Court noted in Nathan, "the element of deliberation serves to

ensure that the jury believes the defendant acted deliberately, consciously and not

reflexively." 404 S.W.3d at 266. Based on the facts and the law, there was ample and

sufficient evidence before the jury that Olivas deliberated before killing K.R. Point One

is denied.

                                        POINT II

       In Point Two, Olivas raises a challenge to the constitutionality of the sentencing

requirements for a minor convicted of first-degree murder.        Olivas challenges his

conviction and sentence in light of Miller v. Alabama, –––– U.S. ––––, 132 S. Ct. 2455

(2012). The State concedes this point has merit.

                                   Standard of Review

       The Missouri Supreme Court has exclusive jurisdiction in cases involving the

validity of a state statute under article V, section 3 of the Missouri Constitution.

However, a party's mere assertion that a statute is unconstitutional does not necessarily

                                                9
deprive this court of jurisdiction unless that issue is real and substantial and not merely

colorable. State v. Davis, 203 S.W.3d 796, 801 (Mo. App. W.D. 2006). Where "the

Missouri Supreme Court has already twice ruled on the precise issue presented by the

Defendant, the court of appeals has jurisdiction, but must . . . follow the rule decided by

the Supreme Court." Id. (internal quotation omitted).

       The issues raised by Olivas concerning the constitutionality of the sentencing

provisions of the first-degree murder statute as applied to juvenile offenders in light of

Miller and the sentencing procedures upon remand were decided by the Missouri

Supreme Court in companion cases handed down on July 30, 2013: State v. Hart, 404

S.W.3d 232 (Mo. banc 2013), and Nathan, 404 S.W.3d 253.               Therefore, we have

jurisdiction to consider this appeal.

                                        Discussion

       Olivas claims that the sentencing provision of the first-degree murder statute,

section 565.020, is unconstitutional as applied to him in light of his age and the United

States Supreme Court's decision in Miller. He argues that his sentence of LWOP violates

his rights under the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution

and that, as such, he must be re-sentenced. The State concedes that, based on the

Missouri Supreme Court's holding in Hart, Olivas's sentence must be set aside and the

case remanded for re-sentencing in compliance with the directives outlined in Hart.

       Section 565.020.2 states:

              Murder in the first degree is a class A felony, and the punishment
       shall be either death or imprisonment for life without eligibility for
       probation or parole, or release except by act of the governor; except that, if

                                            10
        a person has not reached his sixteenth birthday at the time of the
        commission of the crime, the punishment shall be imprisonment for life
        without eligibility for probation or parole, or release except by act of the
        governor.

        At the time of trial, Olivas was not eligible for the death penalty due to his age at

the time he committed the offense.8

        We recently analyzed an identical challenge to section 565.020.2 in State v.

Williams, 420 S.W.3d 713 (Mo. App. W.D. 2014).                           There we held that a juvenile

defendant convicted of first-degree murder must be re-sentenced in light of our Supreme

Court's holding in Hart. In Hart, a first-degree murder case involving a juvenile, the

Missouri Supreme Court acknowledged Miller's holding:

        Miller does not categorically bar sentencing a juvenile offender who
        commits first-degree murder to life without parole. Instead, Miller holds
        that such a sentence is constitutionally permissible as long as the sentencer
        determines it is just and appropriate in light of the defendant's age,
        maturity, and the other factors discussed in Miller.

Hart, 404 S.W.3d at 237–38.

        The United States Supreme Court held in Miller that "the Eighth Amendment

forbids a sentencing scheme that mandates life without parole for juvenile offenders"

when the sentencing entity (judge or jury) has not considered an "offender's youth and

attendant characteristics." Miller, 132 S.Ct. at 2469, 2471. Our decision in the case at

bar is controlled by the holding in Hart:

               [Defendant's] sentence of life without parole for first-degree murder
        violates the Eighth Amendment because, as in Miller, it was imposed with
        no individualized consideration of the myriad of factors discussed in the

        8
          See Roper v. Simmons, 543 U.S. 551 (2005) (holding that a person who was a juvenile at the time of the
offense cannot be sentenced to death).

                                                       11
       Miller decision. Accordingly, [defendant] must be re-sentenced in
       accordance with Miller's constitutional safeguards requiring the sentencer
       to consider whether a sentence of life without parole is just and appropriate
       in light of [defendant's] age and the other circumstances surrounding his
       offense.

404 S.W.3d at 235.

       Further, in applying Miller, the Hart court held that the constitutional defect in

Hart's sentence for first-degree murder was not its length or the fact that he would not be

eligible for parole. Id. at 238. "Hart's sentence of life without parole violates the Eighth

Amendment because—and only because—it was imposed without any opportunity for

the sentencer to consider whether this punishment is just and appropriate in light of Hart's

age, maturity and the other factors discussed in Miller." Id. The court continued that the

"case must be remanded for re-sentencing using a process by which the sentencer can

conduct the individualized analysis required by Miller and, on that basis, determine

whether life without parole is a just and appropriate sentence for Hart under all the

circumstances." Id. at 238–39. Because Olivas's sentence of LWOP for first-degree

murder was imposed in a manner that violated the Eighth Amendment, he must be re-

sentenced using the procedure described in Miller as interpreted in Hart.

       With regard to Olivas's waiver of jury sentencing, our Supreme Court held in both

Hart and Nathan that because the Miller holding requires additional analysis before a

juvenile can be sentenced to LWOP, it is "not reasonable to assume that [defendant] ever

considered whether he would prefer the judge or jury to make the new-- and qualitatively

different-- decision now required by Miller." Hart, 404 S.W.3d at 240. Therefore, the



                                            12
court reasoned that the defendant was not bound by his previous waiver of jury

sentencing. Id.

      In applying the Hart and Nathan holdings to the case at bar, Olivas's waiver of

jury sentencing may not be enforced on remand. Id. at 240; see also Nathan, 404 S.W.3d

at 271. If Olivas does not choose to waive jury sentencing on remand, the State will bear

the burden of persuading the jury beyond a reasonable doubt that a sentence of life

without parole is just and reasonable under all the circumstances. Hart, 404 S.W.3d at

241. After the parties present their evidence and arguments, and before the jury begins

deliberating, the trial court will instruct the jury that "if it is not persuaded that life

without parole is a just and appropriate sentence under all the circumstances of the case,

additional instructions concerning applicable punishments will be given at that time." Id.

at 242. Thereafter, "the [jury] must determine whether life without parole is a just and

appropriate sentence for the first degree murder [the defendant] committed." Id. If the

State meets its burden of persuading the jury beyond a reasonable doubt, then the trial

court must impose the sentence. Id.

      In State v. Nathan, the companion case to Hart, our Supreme Court outlined the

procedure in the event that the sentencer (judge or jury) finds that LWOP is not a just and

appropriate sentence:

             If, on remand, the trial court is required to vacate the jury's verdict
      that [Olivas] is guilty of first-degree murder on the ground that section
      565.020 is void, the trial court also must vacate the jury's finding that
      [Olivas] is guilty of the armed criminal action charge predicated on his
      being found guilty of first-degree murder. The trial court then must enter a
      new finding that [Olivas] is guilty of armed criminal action in connection
      with his guilt on the second-degree murder charge. [Olivas] then will be

                                            13
       sentenced for the new armed criminal action charge at the same time and in
       the same manner as he is sentenced for the new second-degree murder
       charge.

Nathan, 404 S.W.3d at 271 n.11.

       To the extent Point Two asserts error based upon the Eighth Amendment, we

agree and, pursuant to the direction of Hart, this case is remanded for Olivas to be re-

sentenced on both offenses under procedures consistent with this opinion.

                                      CONCLUSION

       For the reasons set forth above, this case is remanded for Olivas to be re-sentenced

on both offenses under procedures consistent with this opinion. In all other respects, the

judgment of the trial court is affirmed.




                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                            14
