         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
STATE OF MISSOURI,                            )
                                              )
               Respondent,                    )
                                              )
vs.                                           )      WD78006
                                              )
TYRON L. SKINNER,                             )      Opinion filed: May 3, 2016
                                              )
               Appellant.                     )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
                 THE HONORABLE BRYAN ROUND, JUDGE

                   Before Division Two: Victor C. Howard, Presiding Judge,
                   Thomas H. Newton, Judge and Karen King Mitchell, Judge

       Tyron Skinner appeals his conviction following a jury trial of one count of unlawful use

of a weapon and one count of armed criminal action, for which he was sentenced to a total of

fifteen years in prison. Skinner argues that the trial court plainly erred in failing to sua sponte

prevent one of the members of the venire panel from serving as a juror because she allegedly

“said that she could not be fair and impartial based upon her personal experiences.” Skinner also

contends that the trial court erred in sentencing him as a prior and persistent offender because

there was only sufficient evidence to find he was a prior offender. The convictions are affirmed

but the judgment is remanded to the trial court for the sole purpose of entering a nunc pro tunc

order to correct the written judgment so as to reflect the sentencing imposed by the trial court for

Skinner’s conviction for unlawful use of a weapon and armed criminal action as a prior offender.
       The shooting incident for which Skinner was convicted happened on May 5, 2013.

Approximately one week prior to that date, Michael Buie was at a barbecue at his aunt’s home

when Tenisha Marshall and Skinner, who was nicknamed “Ron Ron,” arrived. They were told

they were not welcome. Ms. Marshall was cussing and yelling at Mr. Buie, and there was some

verbal fighting between Mr. Buie and Skinner, whom Mr. Buie had not seen before. Skinner

wanted to fight Mr. Buie, but was restrained, and shortly thereafter, the couple left the barbecue.

       Later that week, the Saturday night prior to the shooting, Mr. Buie saw Skinner in the

Power and Light District, and Skinner approached him and told him he had been looking for him.

Skinner then “squared off” with Mr. Buie, started swinging, and Mr. Buie fought back. Mr.

Buie’s head was injured during the fight, but he “got the better” of Skinner.

       The next morning, Mr. Buie’s wife, Ericka Buie, heard shots being fired. She and Mr.

Buie were in their home at the time, and just after the shooting stopped she looked out the

window and saw Skinner running down the block and saw no one else around. Mr. Buie, whom

Ms. Buie had awakened during the shooting, heard gunshots striking vehicles and ran to the

door. The shooting lasted about ten to fifteen seconds and had stopped by the time Mr. Buie

reached the door.    Mr. Buie saw a man running down the street and cutting through the

neighbor’s yard. Although he could not see the man’s face, he recognized that it was Skinner.

Mr. Buie returned to the house and found a bullet had hit the house. Both Mr. and Ms. Buie

identified Skinner in a photo lineup, as well as at trial, as the person they saw that morning

running away just after the shooting.

       The Buies’ neighbor, Teresa Harris, also heard shots on the morning of the shooting and

saw a man in the street with a gun in his hand. Another neighbor, Cesar Sagastume, was helping

Ms. Harris with some home repairs that morning and also heard several shots, then went to the



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front door and opened it, at which time he saw Skinner running down the street trying to put a

chrome handgun with a black handle in his pants. Mr. Sagastume saw no one else in the street.

Mr. Sagastume identified Skinner in a photo lineup and at trial as the person he saw with a gun

running down the street that morning.

       The police arrived quickly after the shooting, and witnesses in the area told an officer that

someone by the name of “Ron Ron” had shot at their house and had left the area in a gold

Chevrolet Impala. The officer found thirteen shell casings nearby and further investigation

revealed that numerous bullets had struck a vehicle and the Buies’ house. Bullet fragments were

found inside the house and in a vehicle.

       Skinner was charged as a prior offender with one count of felony unlawful use of a

weapon for discharging a firearm at a habitable structure and one count of armed criminal action

for the shooting incident. The court found Skinner was a prior offender and he was tried by a

jury in April of 2014. Skinner was found guilty on both counts and the court sentenced him to

fifteen years in prison. This appeal by Skinner followed.

       Skinner requests plain error review in his first point, arguing that the trial court’s failure

to sua sponte prevent one of the members of the venire panel (“Venireperson 9”) from serving as

a juror because she allegedly “said that she could not be fair and impartial based upon her

personal experiences,” which resulted in the manifest injustice of his not being convicted by an

impartial jury.

       The prosecutor asked the jury panel during jury selection whether anyone had been the

victim of a violent crime or had a close friend or family member who had been. Venireperson 9

responded that her friend’s boyfriend was shot and that she had “a big issue with guns.” The

prosecutor continued questioning:



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        [Prosecutor]: Okay, so that experience kind of tainted your feelings about
        firearms, is that fair to say?

        [Venireperson 9]: Very much so.

        [Prosecutor]: Okay and the fact that there is an allegation of a firearm in this case-

        [Venireperson 9]: I would want to know where it was gotten from and how it was
        shot and everything.

        [Prosecutor]: And you understand though that- we were just talking about the
        elements of the crime and that is not going to be something that the State is
        required to prove. Do you think that you would still be able to follow the
        instructions of the judge and decide this case based solely on the evidence that
        you’ve heard here in the court today or tomorrow?

        [Venireperson 9]: I’m not sure about that

        [Prosecutor]: So you can’t guarantee as you are sitting there that that wouldn’t be
        on your mind?

        [Venireperson 9]: No, I would be thinking about it.

No other questions were asked of Venireperson 9 during jury selection. Venireperson 9 was not

struck for cause, nor did either side use a peremptory strike to remove her, and she served on the

jury.

        Skinner’s failure to challenge Venireperson 9 for cause results in a waiver of review.

State v. Wade, 467 S.W.3d 850, 856 (Mo. App. W.D. 2015).                       The requirement of

contemporaneous objections to the qualification of jurors is a well-founded rule that minimizes

“the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction

attack on the jury selection process.”        Id. (internal quotations omitted).     Post-conviction

challenges to jury selection, therefore, are “highly suspect.” Id.

        Nevertheless, Skinner asks this court for plain error relief. “[P]lain 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.”         Rule 30.20.        Not all



                                                  4
prejudicial error is plain error, however; to rise to the level of plain error, an error must be

“evident, obvious, and clear.” Wade, 467 S.W.3d at 856.

       We find no basis for plain error relief here. “Missouri courts have consistently held that a

trial court is under no duty to remove any venire member sua sponte.” State v. Eberius, 184

S.W.3d 582, 585 (Mo. App. S.D. 2006). Where the trial court is under no duty to strike a venire

member on its own motion, there is no evident, obvious, or clear error, and therefore no plain

error. State v. Baumruk, 280 S.W.3d 600, 616 (Mo. banc 2009). Because there is no plain error,

this Court need not proceed to the second step of determining “whether the claimed error

resulted in manifest injustice or a miscarriage of justice.” Id. (quoting State v. Scurlock, 998

S.W.2d 578, 586 (Mo. App. W.D. 1999).

       Even undertaking the evaluation for a manifest injustice or miscarriage for the sake of

argument, we would find none here. Venireperson 9 did not state that she could not be fair and

impartial. She arguably equivocated about her ability to place her desire to know more about the

gun and its origins and use out of her mind and base her evaluation of the case solely on the

evidence presented and instructions given. This equivocation is insufficiently clear as to how it

might have affected her decision and whether that effect would give rise to a manifest injustice

or miscarriage of justice. Furthermore, her statements on the entire record do not make apparent

whether, if she was in fact biased, whom that bias would disfavor: whether her lack of

knowledge about the gun's origin and use would cause her to be biased against the defendant for

being charged with a gun crime or against the prosecution for not putting on evidence to clarify

these facts. Moreover, in response to another line of questioning during voir dire, Venireperson

9 stated that she had a “pretty bad experience with the police a while back” although she also

said she would not hold it against any police officers who would potentially testify in the case.



                                                5
This creates additional uncertainty as to whether any potential bias held by Venireperson 9

would benefit the State or Skinner.

       Because we find no plain error and no manifest injustice or miscarriage of justice,

Skinner’s first point is denied.

       The rejection of Skinner’s first point on appeal does not, however, end our consideration

of this case. As previously related, Skinner was charged as a prior offender. The trial court

found that Skinner was a prior offender and announced that it was sentencing him accordingly.

However, the written judgment and sentence fails to reflect that finding, and instead reflects his

sentencing as a prior and persistent offender. The failure to memorialize accurately the decision

of the trial court as it was announced in open court was clearly a clerical error. “Rule 29.12

permits a trial court to correct such clerical errors in the judgment that obviously are a result of

oversight or omission.” State v. Taylor, 123 S.W.3d 924, 931 (Mo. App. S.D. 2004) (quoting

State v. Booyer, 87 S.W.3d 926, 931 (Mo. App. S.D. 2002)). We affirm the conviction and

sentence, but remand this case with instructions to the trial court to enter a written judgment

reflecting the judgment and sentence as announced by the trial judge in open court.




                                              __________________________________________
                                              VICTOR C. HOWARD, JUDGE

All concur.




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