In the Missouri Court of Appeals Eastern District DIVISION FOUR
STATE OF MISSOURI, ) No. ED111337 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis City v. ) Cause No. 2222-CR01711 ) CLARENCE BATTLE, ) Honorable Timothy J. Boyer ) Appellant. ) Filed: February 27, 2024
OPINION
Following a jury trial, Clarence Battle was found guilty of one count of statutory rape and
one count of statutory sodomy. The circuit court sentenced Battle to two 25-year terms of
imprisonment, to be served consecutively. Battle appeals, arguing his convictions violate his
right to be free from double jeopardy because the State dismissed identical charges against him
contained in an initial indictment. This Court finds no double jeopardy violation exits because
under § 56.087, RSMo 2016, 1 the first indictment was superseded by the second indictment. The
circuit court’s judgment is affirmed.
1 All statutory references are to RSMo 2016. Factual and Procedural Background
Battle was indicted on July 6, 2021, in the City of St. Louis. The indictment was docketed
as case number 2122-CR00770-01 (“First Indictment”). The First Indictment alleged in Count I
that Battle committed the felony of statutory rape in the first-degree by knowingly having sexual
intercourse with a child less than 14 years old, on or about March 10, 2021. Counts II and III
alleged that Battle committed the felony of statutory sodomy in the first-degree. The State filed a
second indictment on November 10, 2022, which the circuit court docketed as case number
2222-CR01711 (“Second Indictment”). The Second Indictment included the three original
counts, plus three alternative counts to statutory rape and statutory sodomy in the first-degree,
and one additional count. In the Second Indictment, Counts I and II both charged Battle with
committing statutory rape in the first-degree, Counts III, IV, V, and VI charged him with
committing statutory sodomy in the first-degree, and Count VII charged him with kidnapping in
the first degree.
Battle appeared in court for a hearing on both indictments. The State offered Battle a plea
on the First Indictment. In exchange for Battle’s guilty plea to the First Indictment, the State
would recommend five years on each count, to be served consecutively for a total of 15 years’
imprisonment. If Battle declined its offer, the State would proceed with the Second Indictment,
which contained the additional counts, and Battle would face the possibility of three life
sentences plus fifteen years’ imprisonment. Battle confirmed he understood this offer and
declined it. The circuit court arraigned Battle on the Second Indictment, and Battle entered a plea
of not guilty.
The case proceeded to a jury trial. At the conclusion of the presentation of evidence, and
before the circuit court instructed the jury, the State dismissed several counts in the Second
2 Indictment, leaving only the original charges of statutory rape and two counts of statutory
sodomy in the first degree. The jury found Battle guilty of one count of statutory rape and one
count of statutory sodomy. After the jury verdict and before sentencing, the State dismissed the
First Indictment. Following his sentencing, Battle filed this appeal.
Standard of Review
Double jeopardy is a constitutional issue that must be raised at the earliest possible
opportunity to be preserved for appellate review. State v. Liberty, 370 S.W.3d 537, 546 (Mo.
banc 2012). Because Battle raises this claim for the first time on appeal, it is only reviewable for
plain error. State v. Counts, 133 S.W.3d 52, 54 (Mo. banc 2004). Plain error review is
discretionary; however, “a double jeopardy allegation determinable from the face of the record is
entitled to plain error review on appeal.” State v. Onyejiaka, 671 S.W.3d 796, 798 (Mo. banc
2023) (quoting Liberty, 379 S.W.3d at 546).
“Plain error review is a two-step process.” State v. Hilbert, 663 S.W.3d 462, 465 (Mo.
banc 2023). “The threshold issue in plain error review is whether the circuit court’s error was
facially ‘evident, obvious, and clear.’” State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019)
(quoting State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014)). “If the appellant establishes a
facially ‘evident, obvious, and clear’ error, then this Court will consider whether the error
resulted in a manifest injustice or miscarriage of justice.” Id.
Analysis
In Battle’s sole point on appeal, he argues that the circuit court lacked authority to
sentence him because when the State dismissed the First Indictment, jeopardy had already
attached. Battle asserts that dismissing the First Indictment was the functional equivalent of
dismissing all of the charges against him, and because the dismissal came after a jury was
3 already sworn and jeopardy attached on the Second Indictment, sentencing him on those charges
violated his right to be free from two prosecutions for the same crime.
Both the Fifth Amendment of the United States Constitution and Article I, §19 of the
Missouri Constitution guarantee the right to be free from double jeopardy. The double jeopardy
clause “contains two distinct protections for criminal defendants: (a) protection from successive
prosecutions for the same offense after either an acquittal or a conviction and (b) protection from
multiple punishments for the same offense.” State v. Daws, 311 S.W.3d 806, 808 (Mo. banc
2010) (quoting State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998)).
Battle does not argue that he was tried twice for any given crime. Instead, he argues that
the prosecutor’s failure to dismiss the First Indictment before a jury was impaneled on the
Second Indictment renders his sentence on the Second Indictment invalid. His argument is based
on § 56.087. That statute states that jeopardy attaches in a criminal jury trial when the jury has
been impaneled. § 56.087.4. If the prosecuting attorney dismisses a case after jeopardy attaches,
the dismissal is with prejudice and cannot be refiled. § 56.087.3.
However, Battle’s argument is undercut by § 545.110, which states, “[I]f there be at any
time pending against the same defendant two indictments for the same offense, or two
indictments for the same matter, although charged as different offenses, the indictment first
found shall be deemed to be superseded by such second indictment, and shall be quashed.” As a
result, because there were two indictments against Battle for the same offenses, it was improper
and beyond the court’s authority to try the defendant on the first charging document, which had
been superseded by the second. State v. Reichenbacher, 673 S.W.2d 837, 838 (Mo. App. 1984);
see also State v. Granberry, 530 S.W.2d 714, 719 (Mo. App. 1975). “The first charging
document is suspended until the second has been dismissed or quashed and cannot form the basis
4 for trial of the defendant.” Reichenbacher, 673 S.W.2d at 838. “The purpose of § 545.100 is to
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
STATE OF MISSOURI, ) No. ED111337 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis City v. ) Cause No. 2222-CR01711 ) CLARENCE BATTLE, ) Honorable Timothy J. Boyer ) Appellant. ) Filed: February 27, 2024
OPINION
Following a jury trial, Clarence Battle was found guilty of one count of statutory rape and
one count of statutory sodomy. The circuit court sentenced Battle to two 25-year terms of
imprisonment, to be served consecutively. Battle appeals, arguing his convictions violate his
right to be free from double jeopardy because the State dismissed identical charges against him
contained in an initial indictment. This Court finds no double jeopardy violation exits because
under § 56.087, RSMo 2016, 1 the first indictment was superseded by the second indictment. The
circuit court’s judgment is affirmed.
1 All statutory references are to RSMo 2016. Factual and Procedural Background
Battle was indicted on July 6, 2021, in the City of St. Louis. The indictment was docketed
as case number 2122-CR00770-01 (“First Indictment”). The First Indictment alleged in Count I
that Battle committed the felony of statutory rape in the first-degree by knowingly having sexual
intercourse with a child less than 14 years old, on or about March 10, 2021. Counts II and III
alleged that Battle committed the felony of statutory sodomy in the first-degree. The State filed a
second indictment on November 10, 2022, which the circuit court docketed as case number
2222-CR01711 (“Second Indictment”). The Second Indictment included the three original
counts, plus three alternative counts to statutory rape and statutory sodomy in the first-degree,
and one additional count. In the Second Indictment, Counts I and II both charged Battle with
committing statutory rape in the first-degree, Counts III, IV, V, and VI charged him with
committing statutory sodomy in the first-degree, and Count VII charged him with kidnapping in
the first degree.
Battle appeared in court for a hearing on both indictments. The State offered Battle a plea
on the First Indictment. In exchange for Battle’s guilty plea to the First Indictment, the State
would recommend five years on each count, to be served consecutively for a total of 15 years’
imprisonment. If Battle declined its offer, the State would proceed with the Second Indictment,
which contained the additional counts, and Battle would face the possibility of three life
sentences plus fifteen years’ imprisonment. Battle confirmed he understood this offer and
declined it. The circuit court arraigned Battle on the Second Indictment, and Battle entered a plea
of not guilty.
The case proceeded to a jury trial. At the conclusion of the presentation of evidence, and
before the circuit court instructed the jury, the State dismissed several counts in the Second
2 Indictment, leaving only the original charges of statutory rape and two counts of statutory
sodomy in the first degree. The jury found Battle guilty of one count of statutory rape and one
count of statutory sodomy. After the jury verdict and before sentencing, the State dismissed the
First Indictment. Following his sentencing, Battle filed this appeal.
Standard of Review
Double jeopardy is a constitutional issue that must be raised at the earliest possible
opportunity to be preserved for appellate review. State v. Liberty, 370 S.W.3d 537, 546 (Mo.
banc 2012). Because Battle raises this claim for the first time on appeal, it is only reviewable for
plain error. State v. Counts, 133 S.W.3d 52, 54 (Mo. banc 2004). Plain error review is
discretionary; however, “a double jeopardy allegation determinable from the face of the record is
entitled to plain error review on appeal.” State v. Onyejiaka, 671 S.W.3d 796, 798 (Mo. banc
2023) (quoting Liberty, 379 S.W.3d at 546).
“Plain error review is a two-step process.” State v. Hilbert, 663 S.W.3d 462, 465 (Mo.
banc 2023). “The threshold issue in plain error review is whether the circuit court’s error was
facially ‘evident, obvious, and clear.’” State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019)
(quoting State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014)). “If the appellant establishes a
facially ‘evident, obvious, and clear’ error, then this Court will consider whether the error
resulted in a manifest injustice or miscarriage of justice.” Id.
Analysis
In Battle’s sole point on appeal, he argues that the circuit court lacked authority to
sentence him because when the State dismissed the First Indictment, jeopardy had already
attached. Battle asserts that dismissing the First Indictment was the functional equivalent of
dismissing all of the charges against him, and because the dismissal came after a jury was
3 already sworn and jeopardy attached on the Second Indictment, sentencing him on those charges
violated his right to be free from two prosecutions for the same crime.
Both the Fifth Amendment of the United States Constitution and Article I, §19 of the
Missouri Constitution guarantee the right to be free from double jeopardy. The double jeopardy
clause “contains two distinct protections for criminal defendants: (a) protection from successive
prosecutions for the same offense after either an acquittal or a conviction and (b) protection from
multiple punishments for the same offense.” State v. Daws, 311 S.W.3d 806, 808 (Mo. banc
2010) (quoting State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998)).
Battle does not argue that he was tried twice for any given crime. Instead, he argues that
the prosecutor’s failure to dismiss the First Indictment before a jury was impaneled on the
Second Indictment renders his sentence on the Second Indictment invalid. His argument is based
on § 56.087. That statute states that jeopardy attaches in a criminal jury trial when the jury has
been impaneled. § 56.087.4. If the prosecuting attorney dismisses a case after jeopardy attaches,
the dismissal is with prejudice and cannot be refiled. § 56.087.3.
However, Battle’s argument is undercut by § 545.110, which states, “[I]f there be at any
time pending against the same defendant two indictments for the same offense, or two
indictments for the same matter, although charged as different offenses, the indictment first
found shall be deemed to be superseded by such second indictment, and shall be quashed.” As a
result, because there were two indictments against Battle for the same offenses, it was improper
and beyond the court’s authority to try the defendant on the first charging document, which had
been superseded by the second. State v. Reichenbacher, 673 S.W.2d 837, 838 (Mo. App. 1984);
see also State v. Granberry, 530 S.W.2d 714, 719 (Mo. App. 1975). “The first charging
document is suspended until the second has been dismissed or quashed and cannot form the basis
4 for trial of the defendant.” Reichenbacher, 673 S.W.2d at 838. “The purpose of § 545.100 is to
prohibit the trial of an accused under one indictment while another indictment (for the same
offense or for the same matter) is ‘pending’ by automatic ‘suspension’ of one of the two
‘pending’ indictments.” State v. Brown, 267 S.W.2d 682, 689 (Mo. 1954).
Battle was not twice placed in jeopardy for the same offense. He was tried only on the
Second Indictment, the only operative charging document at the time. When the state dismissed
the First Indictment, which was pending under a separate case number, it was little more than a
housekeeping matter. 2
For this reason, State v. Storer, 368 S.W.3d 293 (Mo. App. 2012), on which Battle relies
is inapplicable. The facts in Battle’s case are dissimilar to Storer. In Storer, the State tried its
case to a jury, but the jury could not reach a verdict and the circuit court declared a mistrial. Id.
at 294. The State voluntarily dismissed the charges without consent of the defendant, and then
refiled a second information with the same charges as in the first trial. Id. In that case, this Court
held that § 56.087 applied to bar the subsequent prosecution. Id. at 296. Because the case had
been tried and dismissed, any subsequent retrial was in violation of the defendant’s double
jeopardy rights as outlined in § 56.087.
Battle’s case is different. The State did not file the Second Indictment after first trying
and then dismissing the First Indictment. Instead, the State filed a second, superseding
indictment and then tried Battle only on that indictment. After the jury convicted Battle, the State
dismissed the First Indictment, which was no longer an effective charging document. Battle was
tried only once, and was only once placed in jeopardy. Had the First Indictment remained
2 Interestingly, had the State refused to dismiss the First Indictment and attempted to proceed thereunder, it would be a textbook example of a violation of the double jeopardy clause. 5 pending after the circuit court sentenced Battle, the appropriate remedy would not be to vacate
Battle’s conviction or sentences, but instead would be to dismiss the First Indictment.
Conclusion
For the forgoing reasons, the judgment is affirmed.
John P. Torbitzky, P.J.
James M. Dowd, J., and Michael S. Wright, J., concur.