State of Missouri v. Sylvester Onyejiaka, Jr.

• Court: Missouri Court of Appeals
• Decided: September 27, 2022
• Docket: ED109930
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

STATE OF MISSOURI, ) No. ED109930 ) Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) 1922-CR01088-01 ) SYLVESTER ONYEJIAKA, JR., ) Honorable Bryan L. Hettenbach ) Appellant. ) Filed: September 27, 2022

OPINION

Sylvester Onyejiaka (“Onyejiaka”) was found guilty by a jury in the Circuit Court of the

City of St. Louis of two crimes - (1) the possession of a controlled substance and (2) the unlawful

use of a weapon by possessing a firearm while also being in possession of a controlled substance.

These charges arose from a traffic stop that took place on January 28, 2019, in which police officers

discovered a firearm and a small bag of crack cocaine in Onyejiaka’s vehicle. In his sole point on

appeal, Onyejiaka asserts that since both counts share the offense of possession of a controlled

substance and the legislature did not specifically authorize cumulative punishments for both

offenses, the trial court violated his right to be free from double jeopardy under the Fifth

Amendment of the United States Constitution by accepting guilty verdicts, entering judgment, and

sentencing Onyejiaka on both counts. We affirm because we find that these two convictions and sentences are not for the same

offense and thus do not violate Onyejiaka’s right to be free from double jeopardy.

Factual and Procedural Background

On January 28, 2019, two officers patrolling the Walnut Park West neighborhood, a high-

crime area in the City of St. Louis, pulled over Onyejiaka’s Nissan sedan to conduct a traffic stop.

As the officers approached the vehicle, they asked Onyejiaka, the vehicle’s sole occupant, to lower

the windows. At that point, they observed a firearm between the driver’s seat and the center

console. Onyejiaka gave the officers consent to search his vehicle.

While searching the vehicle, the officers discovered in the center console an off-white

substance wrapped in cellophane. The substance was later identified as .33 grams of crack cocaine.

Onyejiaka was arrested at the scene. After being Mirandized, Onyejiaka stated that he was going

to use the substance to smoke “mo,” which the officers understood to be “primo,” a mixture of

marijuana and crack cocaine.

Onyejiaka was charged under section 579.015.11 with possession of a controlled substance,

and under section 571.030.1(11) with unlawful use of a firearm while in possession of a controlled

substance. The jury found him guilty of both offenses and the trial court sentenced him to three

years in prison on each count. The court suspended execution of the sentences and placed him on

two years of supervised probation. Onyejiaka now claims on appeal that the convictions and

sentences violated his right to be free from double jeopardy.

Standard of Review

Since Onyejiaka failed to raise his double jeopardy argument in the trial court, he now

seeks plain error review pursuant to Missouri Supreme Court Rule 30.202. Plain error is

1 All statutory references are to Revised Statutes of Missouri (2016) unless otherwise stated. 2 All rule references are to the Missouri Supreme Court Rules (2018). appropriate when we find that manifest injustice or a miscarriage of justice has resulted from the

trial court’s error. State v. Baumruk, 280 S.W.3d 600, 607 (Mo.banc 2009). “Generally . . . we

have discretion to review for plain error only where the appellant asserting error establishes facially

substantial grounds for believing that the trial court’s error was evident, obvious, and clear, and

that manifest injustice or a miscarriage of justice has resulted.” State v. Clark, 494 S.W.3d 8, 12

(Mo. App. E.D. 2016).

In general, the party seeking review of a constitutional issue must raise the issue at the

earliest opportunity possible. State v. Liberty, 370 S.W.3d 537, 546 (Mo.banc 2012). However,

because the right to be free from double jeopardy is a “constitutional right that goes ‘to the very

power of the State to bring the defendant into court to answer the charge brought against him,’”

id. (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)), a double jeopardy violation that can be

determined from the face of the record is entitled to plain error review even if the defendant failed

to preserve the issue. State v. Neher, 213 S.W.3d 44, 48 (Mo.banc 2007).

Discussion

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall “be

subject for the same offense to be twice put in jeopardy of life and limb.” U.S. CONST. amend. V.

The Double Jeopardy Clause offers: “(a) protection from successive prosecutions for the same

offense after either an acquittal or conviction and (b) protection from multiple punishments for the

same offense.” State v. Flenoy, 968 S.W.2d 141, 143 (Mo.banc 1998) (citing State v. Snider, 869

S.W.2d 188, 195 (Mo. App. E.D. 1993). The latter protection is at issue here. When multiple

punishments are implicated, we consider whether “cumulative punishments were intended by the

legislature . . . .” State v. McTush, 827 S.W.2d 184, 186 (Mo.banc 1992). To determine legislative intent, we examine the statutes at issue to decide whether the

legislature “clearly expressed” an intent to apply cumulative punishments for the same conduct.

Flenoy, 968 S.W.2d at 144. If the statutes “specifically authorize” cumulative punishments, no

double jeopardy issue exists. McTush, 827 S.W.2d at 186. If, however, the statutes are silent as

to cumulative punishments, we look to section 556.041, the “general intent” statute. Id. at 187.

Therefore, we first consider the language of the criminal statutes at issue—section 579.015

and section 571.030—to decide whether they expressly authorize cumulative punishments.

Section 579.015.1 states, “A person commits the offense of possession of a controlled substance

if he or she knowingly possesses a controlled substance . . . .” Section 571.030.1 establishes the

offense of unlawful use of weapons when the offender uses a weapon in one of eleven different

factual contexts, one of which is when “he or she knowingly . . . possesses a firearm while also

knowingly in possession of a controlled substance that is sufficient for a felony violation of section

579.015.” Both statutes are silent as to cumulative punishments.

Although the State concedes that neither statute expressly sanctions multiple punishments

for these crimes, it insists that since the legislature need not use “certain magic words” to express

its intent, we may glean from the plain language of these statutes and their legislative histories that

the legislature intended cumulative punishments. Batchel v. Miller Cnty. Nursing Home Dist., 110

S.W.3d 799, 804 (Mo.banc 2003). We disagree.

While we agree that the legislature need not use “certain magic words,” the words it uses

must express its intent to apply cumulative punishments and here the State has failed to identify

such an expression of intent. And we know that the Missouri legislature knows how to do so. For

example, section 571.015, the armed criminal action statute, articulates that “[t]he punishment

imposed pursuant to this subsection shall be in addition to and consecutive to any punishment provided by law for the crime committed, by, with, or through the use, assistance, or aid of a

dangerous instrument or deadly weapon.” (Emphasis added). In this regard, the legislature

expressed its intent in clear and unequivocal language.3

Nevertheless, in cases where the statutes are silent on the question, courts look to section

556.041. In State v. Elliott, the court decided that “because the statutes are silent on the issue, we

must examine whether cumulative punishment is permitted for the same conduct pursuant to

[section] 556.041, which states the legislature’s general intent regarding cumulative

punishments.” 987 S.W.2d 418, 478 (Mo. App. W.D. 1999) (emphasis added). Furthermore, in

State v. Walker, where the forcible rape and statutory rape statutes were silent on the issue of

cumulative punishments, the court rejected the defendant’s argument that the legislative history

indicated that the legislature intended cumulative punishments and instead relied on the general

cumulative punishment statute, section 556.041. 352 S.W.3d 385, 389-392 (Mo. App. E.D. 2011).

Section 556.041 states that “[w]hen the same conduct of a person may establish the

commission of more than one offense he or she may be prosecuted for each such offense. Such

person may not, however, be convicted of more than one offense if . . . one offense is included in

the other, as defined in section 556.046.” Under section 556.046, “[a]n offense is so included

when . . . it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged.”

3 Courts have applied this language to reject assertions of double jeopardy violations based on the armed criminal action statute and an underlying statutory violation. See Flenoy, 968 S.W.2d at 145 (holding that murder, robbery, and armed criminal action did not constitute the same offenses because the legislature clearly stated that the punishment for armed criminal action was to be “in addition to” punishments for related felonies); see also State v. Couts, 133 S.W.3d 52, 56 (Mo.banc 2004) (holding that defendant’s convictions of both the armed criminal action and unlawful use of a weapon did not violate double jeopardy because the legislature “specifically intended to permit conviction and sentence for both offenses.”). In determining whether an offense is included in the other, we focus on the statutory

elements of the offenses as opposed to “how the . . . offense was indicted, proved, or submitted to

the jury.” State v. Hardin, 429 S.W.3d 417, 423 (Mo.banc 2014); see also Elliott, 987 S.W.2d at

421. In other words, we focus on all the statutory elements of the offenses as a whole set forth in

the statutes rather than simply on the elements of the offense listed in the indictment. Moreover,

if a statute may be violated in multiple ways, the critical issue for double jeopardy purposes is

what the statute requires and we do not limit our analysis to the specific way the indictment claims

the statute was violated. See State v. Watkins, 533 S.W.3d 838, 846 (Mo. App. S.D. 2017); State

v. Derenzy, 89 S.W.3d 472, 474 (Mo.banc 2002) (“The elements of the two offenses must be

compared in theory, without regard to the specific conduct alleged.”). Missouri courts have

consistently rejected an indictment-based application when considering if an offense is included.

State v. Collins, No. SC 99211, 2022 WL 1559253 at *7 (Mo.banc 2022).

The foregoing principles are well-illustrated in State v. Hardin, where the court faced

circumstances similar to those before us. In Hardin, the defendant claimed that his convictions

for a protective order violation and for aggravated stalking constituted double jeopardy because

they were based on the same conduct. 429 S.W.3d at 421. Similar to section 571.030 at issue

here, which includes eleven different ways to commit the offense of unlawful use of a weapon, the

aggravated stalking statute may be violated in five different ways including the violation of a

protective order. Id. at 423.

The Hardin court rejected his double jeopardy claim reasoning that because it was possible

to commit aggravated stalking without violating an order of protection, i.e., by engaging in one of

the four other aggravators listed in the statute, violating a protective order was not included in the

offense of aggravated stalking for double jeopardy purposes. Id. at 424. Additionally, in State v. Collins, the defendant asserted that second-degree harassment was

a lesser included offense of tampering with a judicial officer. WL 1559253 at *5. Similar to the

statute at issue here and to the aggravated stalking statute in Hardin, the tampering statute included

four distinct ways to commit the offense. Id. at *6. Thus, in rejecting Collins’s double jeopardy

claim, the court found that it was “possible to commit tampering with a judicial officer without

also committing second-degree harassment.” Id. at *7; see also State v. Watkins, 533 S.W.3d 838,

846 (Mo. App. S.D. 2017).

The reasoning employed by the Hardin and Collins courts applies here and is fatal to

Onyejiaka’s appeal because he could have violated section 571.030 in eleven different ways—for

example, by setting a spring gun (section 571.030.1(2)), or discharging a firearm into a dwelling

house (section 571.030.1(3)). We conclude therefore that Onyejiaka’s conviction for possession

of a controlled substance is not included in his conviction for unlawful use of weapons because it

is possible to violate the statute on the unlawful use of a weapon without also violating the

possession-of-a-controlled-substance statute.

For his part, Onyejiaka asserts that the statutes at issue in Hardin and Collins are

distinguishable from the statutes at issue here in that section 571.030.1’s subsections operate

independently of one another and are tied to different punishments. Accordingly, he contends that

we should compare only the “relevant” subsection, section 571.030.1(11), with the elements of

possession of a controlled substance because “this comports with how Missouri courts have

routinely applied the same elements test when analyzing the unlawful use of weapons statute for

double jeopardy purposes” (citing Bates v. State, 421 S.W.3d 547, 551 (Mo. App. E.D. 2014);