                                                           
                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION FOUR

STATE OF MISSOURI,                           )       ED102148
                                             )
       Plaintiff/Respondent,                 )       Appeal from the Circuit Court
                                             )       of the City of St. Louis
v.                                           )
                                             )
ANTONIO BURNS,                               )       Honorable John J. Riley
                                             )
       Defendant/Appellant.                  )       Filed: December 15, 2015

                                           Introduction

       Antonio Burns (Appellant) appeals from the judgment and sentence entered by the trial

court after a bench trial finding him guilty of second-degree domestic assault, third-degree

domestic assault, and felony resisting arrest. We affirm in part and reverse and remand in part.

                               Factual and Procedural Background

       Appellant and S.B. were married and lived together. On November 14, 2013, S.B. was at

home with the children when Appellant arrived home drunk with his cousin. Because the

children had burned some cheese on the stove, Appellant became angry, called S.B. a horrible

parent and slapped her across the face. Appellant grabbed her and slammed her against the wall,

then began to choke her. Appellant threw her to the ground. Appellant grabbed S.B.’s hair and

wig, which was glued to her scalp and hair, and ripped it off. Appellant forced S.B., who was

naked, out of the house and locked her out. About three minutes later, Appellant let her back in,
when she hurriedly dressed, grabbed her backpack and left the house. Appellant followed her and

grabbed her backpack. S.B. let the backpack go and fled toward a police vehicle she saw nearby.

              In between sobs, S.B. told Detective Ryan Barone what had just happened. Her narrative

took about five minutes, because she had to stop and compose herself several times. Detective

Barone and Officer Lawrence Kreisman then went to the home of Appellant and S.B., which was

about one-half to three-quarters of a block away. As they approached the house, the officers

heard Appellant and his cousin arguing. Detective Barone ordered Appellant, who was walking

into the gangway, out to the street and told him he was under arrest. Appellant fled. Detective

Barone and Officer Kreisman pursued Appellant on foot. Appellant was apprehended for

second-degree domestic assault and read his Miranda1 rights.

              The State charged Appellant with second-degree domestic assault for choking S.B.

(Count I), third-degree domestic assault for pulling and ripping out her hair (Count II), and

felony resisting arrest (Count III). Appellant’s counsel filed pretrial motions to exclude S.B.’s

initial statement to police as hearsay and to dismiss either Count I or Count II because both

counts together violated Appellant’s right to be free from double jeopardy, in that the two counts

constituted one assault. The trial court took the motions under submission with the case.

              Appellant waived a jury trial. A bench trial was held on August 13, 2014, at which

Appellant testified but S.B. did not. Detective Barone testified as to what S.B. told him about the

assault immediately after it had occurred on November 14, 2013. On September 3, 2014, the

trial court issued its Judgment, along with a Memorandum and Findings, denying the pretrial

motions and finding Appellant guilty of all charges. The trial court noted it found Appellant’s

testimony not credible. On October 3, 2014, the trial court orally pronounced sentence,

sentencing Appellant to five years’ imprisonment on Count I, execution of sentence suspended
                                                            
1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                               2
 
and a three-year probationary period imposed; sixty days on Count II, which was discharged for

time served; and as to Count III, the court declared “the imposition of sentence be suspended,

and that the [Appellant] be placed on probation for a period of three years.” The court’s written

sentence was consistent with its oral pronouncement of sentence in every regard except for

Count III, which will be addressed in greater detail in Point III. This appeal follows.

                                         Points on Appeal

       In his first point, Appellant maintains the trial court erred in overruling his motion to

dismiss Count I of second-degree domestic assault for choking S.B. or Count II of third-degree

domestic assault for pulling S.B.’s hair because conviction of both counts violated his

constitutional right to be free from double jeopardy, in that both counts resulted from one

continuing, uninterrupted course of conduct, a single assault, and there was no evidence of

separation of time sufficient to provide Appellant an opportunity to reconsider his actions or

reform his intent.

       In his second point, Appellant claims the trial court erred and abused its discretion in

permitting Detective Barone to testify about what S.B. told him out of court about the assaults

because such statements constituted hearsay, admission of which violated Appellant’s right to

confrontation.  

       In his third point, Appellant contends the trial court plainly erred in entering a four-year

sentence for Count III of the class D felony of resisting arrest on the written judgment and

sentence because the written judgment and sentence materially differed from the trial court’s oral

pronouncement on Count III of the suspended imposition of sentence and three years of

probation. Appellant maintains this Court must remand for correction of the trial court’s clerical

error nunc pro tunc.



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                                                                 Standards of Review

              Whether a defendant is afforded the protections of the Double Jeopardy Clause is a

question of law, which we review de novo. State v. M.L.S., 275 S.W.3d 293, 296 (Mo.App.

W.D. 2008).

              This Court reviews a trial court’s admission of evidence for abuse of discretion, and will

not reverse the trial court’s judgment absent prejudice resulting from that admission. State v.

Kelly, 367 S.W.3d 629, 630 (Mo.App. E.D. 2012).

                                                                      Discussion

                                                               Point I – Double Jeopardy

              The Double Jeopardy Clause prevents a criminal defendant from being subjected to

multiple punishments for the same offense. M.L.S., 275 S.W.3d at 296. Section 556.0412 states:

              When the same conduct of a person may establish the commission of more than
              one offense he may be prosecuted for each such offense. He may not, however,
              be convicted of more than one offense if
              ....
              (4) The offense is defined as a continuing course of conduct and the person’s
              course of conduct was uninterrupted, unless the law provides that specific periods
              of such conduct constitute separate offenses.

              In the present case, Count I, felony second-degree domestic assault, alleged Appellant

attempted to cause physical injury to S.B. by choking her. Count II, misdemeanor third-degree

domestic assault, alleged Appellant attempted to cause physical injury to S.B. by pulling her hair.

Appellant argues his domestic assault convictions violate the Double Jeopardy Clause because

the factual basis for the separate charges was a single continuous and uninterrupted assault.

Additionally, he argues the record contains no evidence of a separation in time sufficient to

provide him an opportunity to formulate a new intent.


                                                            
2
    All statutory references are to RSMo 2012.

                                                                          4
 
       Although the choking and hair pulling occurred within minutes of each other, one

incident involving multiple injuries to the victim can result in multiple charges as long as

separate acts are involved or a separate mens rea was formed as to each act. State v. Childs, 684

S.W.2d 508, 511 (Mo.App. E.D. 1984). Here, when Appellant came into the house and realized

the cheese had burned, he became enraged and told S.B. she was a terrible parent, shoved her

against a wall and choked her, then released his hands from her throat and threw her to the

ground, knocking over one of the children. At this point a break in the action occurred – an

interruption. Appellant then attacked S.B. for a second time by grabbing her by her hair and

ripping off a wig attached with glue to her scalp, and threw her outside the house, naked. After

several minutes he allowed her back in and they argued further. She dressed and grabbed a

backpack, preparing to leave. S.B. was able to leave the house but Appellant pursued her and

grabbed her backpack from her. S.B. was able to escape and run to police.

       Based on these facts, we find the choking and the hair pulling were separate acts of

domestic assault because not only was there a break in the action, but also Appellant had time to

reconsider his actions in between the two acts. Appellant choked S.B., an act which constituted

felony second-degree domestic assault. This assault was concluded when he released his grip on

her throat and threw her to the ground. His release and shoving of her knocked over one of the

children and constituted an interruption in his course of conduct. At this point Appellant’s hands

were off her neck and he had shoved her away from himself. Appellant had an opportunity to

reconsider his actions and decided to attack S.B. again, constituting a new mens rea. This time

Appellant grabbed S.B. by her hair, a new and different act of violence on her person, ripping her

wig from her scalp, resulting in a charge of misdemeanor third-degree domestic assault. We

find, as did the trial court, these were distinct acts involving different conduct and attempts to



                                                  5
 
injure in distinct ways such that each required a separate mens rea. “The fact that these incidents

took place almost at the same time in the same place is not dispositive because the two distinct

acts required two distinct mens rea.” M.L.S., 275 S.W.3d at 298. Although occurring close in

time, these were separate and distinct acts and charging them as separate acts of domestic assault

of different degrees did not violate Appellant’s double jeopardy rights. Point I is denied.

                                         Point II – Hearsay

       S.B. did not testify at trial. Over Appellant’s objection, the trial court allowed Detective

Barone to testify as to what S.B. told him about the assaults when he responded to the scene

three minutes after receiving the call. Detective Barone testified S.B. was sobbing

uncontrollably when he arrived at the scene. He stated she would compose herself and say what

happened, and then begin sobbing uncontrollably again. He testified she told him what had

occurred in narrative form without any questions or prompting from him, other than to ask

Appellant’s name and birthdate. S.B. was extremely upset and shaken from the events, which

had just occurred. Detective Barone listened to her account, but did not record anything.

       The excited utterance exception applies when (1) a startling event or condition occurs, (2)

a statement is made while the declarant is under the stress of excitement caused by the event and

has not had an opportunity to fabricate, and (3) the statement relates to the startling event. State

v. Post, 901 S.W.2d 231, 234 (Mo.App. E.D. 1995). The essential test for admissibility of a

spontaneous statement or excited utterance is neither the time nor place of its utterance but

whether it was made under such circumstances as to indicate it is trustworthy. State v. Kemp,

212 S.W.3d 135, 146 (Mo.banc 2007). This exception is premised on the idea that where the

statement is made under the immediate and uncontrolled domination of the senses as a result of




                                                  6
 
the shock produced by the event, the utterance may be taken as expressing the true belief of the

declarant. Id.

        This exception is based on the human “experience that, under certain external
        circumstances of physical shock, a stress of nervous excitement may be produced
        which stills the reflective faculties and removes their control, so that the utterance
        which then occurs is a spontaneous and sincere response to the actual sensations
        and perceptions already produced by the external shock. Since this utterance is
        made under the immediate and uncontrolled domination of the senses, and during
        the brief period when considerations of self-interest could not have been brought
        fully to bear by reasoned reflection, the utterance may be taken as particularly
        trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and
        thus as expressing the real tenor of the speaker’s belief as to the facts just
        observed by him; and may therefore be received as testimony to those facts.

Post, 901 S.W.2d at 234, quoting Walsh v. Table Rock Asphalt Constr. Co., 522 S.W.2d 116,

120 (Mo.App.1975) (quoting VI John Henry Wigmore, Wigmore on Evidence § 1747(I), at 135

(3rd ed.)).

        Here, S.B.’s statement to Detective Barone, although made out of court and offered to

prove the truth of the matters stated, was admissible under the excited utterance exception, as

found by the trial court. S.B. was clearly still under the influence of the stress and shock of the

assaults perpetrated upon her by Appellant, which had just occurred. S.B. was extremely upset,

sobbing uncontrollably, and relayed only the events that happened minutes before, causing her

distress. Her statement was admissible as an excited utterance because it was “made under the

immediate and uncontrolled domination of the senses as a result of the shock produced by the

event.” State v. Riley, 440 S.W.3d 561, 566 (Mo.App. E.D. 2014).

        Immediately prior to Appellant’s assaults on her, S.B. was at home with her children.

Appellant arrived home with his cousin, drunk, screamed insults at her, choked her, and threw

her against a wall knocking over one of her children. Then Appellant pulled her hair, ripping her

wig from her scalp. Appellant forced S.B., who was naked, out of the house and locked her out



                                                  7
 
for several minutes. After he let her back in, she was able to dress, grab her backpack and

escape, fleeing to police, while Appellant still gave chase, grabbing her backpack. Minutes later

and a half-block away, sobbing uncontrollably, she gave her account of what had just occurred.

Her account of the events is trustworthy because it was made under the immediate and

uncontrolled domination of her senses as a result of shock produced by Appellant’s actions.

       Accordingly, S.B.’s statement was spontaneous, caused by a startling event, and

admissible under the excited utterance exception to the hearsay rule.

       Appellant also complains he was deprived of his right to confront S.B. about her

statement because she did not testify at trial. The Confrontation Clause, U.S. Const. amend. VI,

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted

with the witnesses against him.” The Confrontation Clause prohibits the admission of

testimonial statements of a witness who did not appear at trial unless the witness was unavailable

to testify, and the defendant had a prior opportunity for cross-examination. Crawford v.

Washington, 541 U.S. 36, 53-54 (2004); Kemp, 212 S.W.3d at 147. The testimonial nature of a

statement is what makes the declarant a ‘witness’ that the accused has the right to confront.

Crawford, 541 U.S. at 51; Kemp, 212 S.W.3d at 147-48.

       Thus, the relevant question at hand is whether S.B.’s statement was testimonial or

nontestimonial in nature. We find that it was nontestimonial.

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency. They
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006); Kemp, 212 S.W.3d at 148.




                                                  8
 
          The statement at issue in this case was nontestimonial because it was clearly made under

circumstances objectively indicating that the primary purpose of it was to enable police

assistance to meet an ongoing emergency. S.B. ran down the street from the scene of the assaults

directly to a police vehicle she saw. Detective Barone was called to the scene by the officer

present to assist S.B. Detective Barone arrived within three minutes of receiving the call and

found S.B. sobbing uncontrollably and listened to her recounting the violence that had just been

perpetrated on her by Appellant. Detective Barone did not record her statement, nor did he

prompt or question S.B. while she narrated the events that had just occurred, other than asking

Appellant’s identity and for minor clarifications. This statement was nontestimonial and thus its

admission did not violate Appellant’s right to confront S.B. about it.

          Later, S.B. went to the police station to give a formal written statement as to what had

transpired. This second, written statement was not presented, used or admitted at trial. This

statement would be considered testimonial, but is not at issue here because it was not admitted at

trial.

          For the foregoing reasons, Detective Barone’s testimony recounting S.B.’s statement to

him was admissible as an excited utterance exception to the hearsay rule and its admission did

not violate Appellant’s right to confrontation because it was nontestimonial in nature. Point II is

denied.

                                 Point III – Inconsistency in Sentence

          Appellant claims the trial court’s written sentence was erroneous because it conflicts with

the court’s oral pronouncement of his sentence. The State concedes this error.

          At sentencing, the trial court stated that “As to Count III, it’s the Order and Judgment of

the Court that the imposition of Sentence be suspended, and that [Appellant] be placed on



                                                   9
 
probation for a period of three years.” However, the written sentence and judgment indicates the

trial court sentenced Appellant to four years on Count III, and suspended the execution of the

four-year sentence and placed Appellant on probation for a period of three years. The written

judgment and sentence of four years materially differs from the trial court’s oral pronouncement

on Count III of a suspended imposition of sentence and three years of probation.

              The failure to accurately record the trial court’s sentence as orally pronounced in open

court is a clerical error. State v. Davis, 422 S.W.3d 458, 465 (Mo.App. E.D. 2014). Such an

error may be corrected by a nunc pro tunc order if the trial court’s intentions regarding the

sentence are clear from the record. Id.

              The record in this case reflects the trial court’s pronouncement that the imposition of

Appellant’s sentence was suspended for Count III and Appellant was placed on three years’

probation. There was no statement by the trial court indicating any intent to sentence Appellant

to four years and suspend execution of that sentence.

              Pursuant to Rule 29.12(c),3 clerical mistakes in judgments “may be corrected by the court

at any time after such notice, if any, as the court orders.” Therefore, while we affirm Appellant’s

convictions and sentence in all other regards, we must remand the cause to the trial court with

instructions to enter a written judgment reflecting the sentence as announced in open court.

Point III is granted.

                                                               Conclusion

              The judgment of the trial court is affirmed in part and reversed and remanded in part,

with instructions to the trial court to enter a nunc pro tunc order conforming the trial court’s

written sentence on Count III to its oral pronouncement of Appellant’s sentence on Count III.

 
                                                            
3
    All rule references are to Mo. R. Crim. P. 2015.

                                                                  10
 
                                      SHE
                                        ERRI B. SUL
                                                  LLIVAN, J.

Lisa S. Van
        V Amburg, C.J., and
Kurt S. Odenwald,
        O         J.., concur.
     




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