State of Missouri, Respondent, v. Stephen Andrew Eagleton, Appellant.

STATE OF MISSOURI, Respondent, v. STEPHEN ANDREW EAGLETON, Appellant. ) ) ) ) ) ) ) ) ) ED113204

Appeal from the Circuit Court of St. Louis County The Honorable John N. Borbonus, Judge I NTRODUCTION Stephen A. Eagleton (Eagleton) appeals from the trial court's judgment entered upon a jury's verdict convicting him of second-degree assault. We affirm. B ACKGROUND After a verbal altercation with the victim (Victim) at a restaurant and bar, Eagleton struck him in the face, resulting in serious injuries. Eagleton was subsequently charged with second-degree assault. A jury found him guilty, and he was sentenced to five years in prison. This appeal follows.

2 D ISCUSSION On appeal, Eagleton raises three claims of error denying his peremptory strike of Juror No. 29 on the basis of Batson v. Kentucky, 476 U.S. 79 (1986); denying his request for a continuance; and sentencing him to five years of imprisonment in retaliation for exercising his right to trial. Point One – Batson Challenge In point one on appeal, Eagleton alleges the trial court erred in denying his peremptory strike of Juror No. 29, an African-American female, on the basis of Batson. He claims he gave a race-neutral reason for the strike and the state failed to establish his explanation was pretextual. Standard of Review Review of the trial court's decision regarding the state's challenge to Eagleton's peremptory strike, or reverse-Batson challenge, is for clear error. State v. Letica, 356 S.W.3d 157, 164 (Mo. banc 2011) (citing State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010)). The decision is clearly erroneous if we are left with the definite and firm conviction a mistake was made. Id. The trial court is given great deference because the findings are largely dependent upon the court's evaluation of credibility and demeanor.

3 Analysis Pursuant to the Equal Protection Clause, a potential juror cannot be peremptorily challenged solely on the basis of gender, ethnic origin, or race. State v. Thomas, 407 S.W.3d 190, 196 (Mo. App. E.D. 2013) (citing State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002)). When a party objects to such a strike by raising an objection pursuant to Batson, or reverse-Batson, there are three steps that follow. Letica, 356 S.W.3d at 164 (internal citations omitted). First, the party objecting to the peremptory strike as improper must make a prima facie case of discrimination. Id. Next, the proponent of the strike must respond with a race-neutral reason for the strike that is more than a simple denial of the allegation of discriminatory purpose. Id. If the party seeking to exercise the strike can articulate a reasonable race-neutral justification for the strike the burden then shifts back to the opposing party to show the reason is merely pretextual and the strike was racially motivated. Id. It is at this third and final step the persuasiveness of the explanation becomes relevant and is a credibility determination for the trial court. Id. at

A key consideration in determining pretext is whether the explanation is plausible in light of the totality of facts and circumstances surrounding the case. Id. at 164 (quoting State v. Johnson, 207 S.W.3d 24, 35 (Mo. banc 2006)). There are several factors for the trial court to consider, including whether there were similarly situated jurors who were not struck. Thomas, 407 S.W.3d at 196; State v. Marlowe, 89 S.W.3d 464, 469 (Mo. banc 2002). The opposing party can present a "side-by-side" comparison

4 of an otherwise similar member of another race on the venire panel who is ultimately permitted to serve. Bateman, 318 S.W.3d 681, 689-90 (Mo. banc 2010) (quoting State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006)). During voir dire, Eagleton sought to strike Juror No. 29. The state identified the juror as an African-American female and objected to the peremptory strike on the basis of Batson. The prosecutor noted she did not speak during voir dire "at all," and he had no notes about her. He alleged Eagleton was striking her on the basis of her race and gender. In response, counsel for Eagleton said he was exercising the peremptory strike of Juror No. 29 because she did not respond to certain questions on the questionnaire, including whether she had convictions other than traffic tickets, she was related to law enforcement, had prior jury duty, or was a party to a lawsuit claiming money for damages. The peremptory strike was based on those nondisclosures as well as her lack of participation during voir dire. The state responded by pointing out Juror No. 7, a white male, failed to answer the similar questions, and Eagleton did not strike him. The court agreed Juror No. 7 was "equally as unresponsive to the majority of" the same questions recited by counsel but had not been stricken. The court asked for another race-neutral reason to strike Juror No. 29 in light of the similarly situated juror who was not stricken, and counsel pointed to the fact Juror No. 7 had "more education" than Juror No. 29, which would lend itself to "being able to be better able to follow the law and instruction that's given." The court disagreed there was a sufficiently race-neutral explanation for Eagleton's peremptory strike of Juror No. 29, granted the state's objection, and did not

5 strike her. As the court noted, there was a similarly situated white male juror who also failed to answer the majority of the questions she did not answer. The trial court did not accept Eagleton's proffered explanation as to why the jurors were not similarly situated by arguing Juror No. 7's education made him better able to follow the law and instructions and we defer to that credibility determination. See Letica, 356 S.W.3d at

1. Considering the totality of the facts and circumstances in this case, we cannot

conclude the trial court clearly erred in granting the state's Batson objection to Eagleton's election to strike Juror No. 29. Point one on appeal is denied. Point Two – Request for Continuance In his second point on appeal, Eagleton argues the trial court erred in denying his motion for a continuance. On the first day of trial, counsel for Eagleton made an oral motion to continue. Prior to this motion, the court heard argument from the parties regarding the exclusion of certain undisclosed witnesses, specifically two witnesses present at the time of the incident. Counsel stated he would "stand on the record" made regarding those witnesses as the basis for his motion to continue. The court denied the motion and proceeded to trial. For the first time on appeal, Eagleton now argues the trial court erred in denying his request for a continuance because he had insufficient time to consult with counsel.

6 Standard of Review The decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Swearinger, 699 S.W.3d 232, 241 (Mo. App. E.D. 2024) (internal citations omitted). We review that decision for abuse of discretion and will reverse only upon a "very strong" showing the court abused its discretion and prejudice resulted. Id. Moreover, arguments raised for the first time on appeal are not preserved for review. Id. Parties are bound by the position taken at trial. Id. This court will not convict a trial court of error for an argument not raised at trial. Id. Analysis Rule 24.09 1 requires a motion for continuance be set forth in writing. However, a motion may be oral if the adverse party consents or the court finds good cause. Rule 24.09(a) and (b). Eagleton contends because the state stood silent after the court asked for a response to the oral motion it should be interpreted as consent. Assuming without deciding the state consented to his oral motion to continue, we cannot convict the trial court of error for denying the request in this case. At trial, Eagleton initially sought a verbal continuance due to the exclusion of two witnesses, husband and wife, who were present during the incident. However, after the jury was chosen, the parties made a record of their agreement for husband, but not wife, to testify as her testimony would be cumulative of his. There was no further mention of counsel's previous oral motion for a continuance.

1 All references to Rules are to Missouri Supreme Court Rules (2024).

7 The record here shows Eagleton's trial counsel entered his appearance on September 3, 2024, prior to trial on October 21. He did not request a continuance under Rule 24.09. In fact, in his oral request for a continuance at trial he stated he would "stand on the record" regarding the exclusion of the two witnesses as the basis for his motion to continue, which was rendered moot by the agreement of the parties for husband, but not wife, to testify. To the extent he now attempts to argue on appeal the trial court erred in denying his motion to continue based on insufficient time to consult with counsel, such argument was not raised to the trial court and we will not consider it here. Point two on appeal is denied. Point Three – Sentencing In his third and final point on appeal, Eagleton argues the trial court plainly erred in sentencing him to five years of imprisonment because the court's statements show it refused to consider probation and imposed a custodial sentence because of Eagleton's refusal to accept a pre-trial plea offer. Standard of Review Eagleton concedes he did not object to the sentence imposed, and therefore our review is for plain error. State v. Betts, 559 S.W.3d 47, 55 (Mo. App. E.D. 2018). We may, in our discretion, consider plain errors affecting the substantial rights of an appellant if we find a manifest injustice or miscarriage of justice has occurred. Rule 30.20. "An unauthorized sentence affects substantial rights and results in a manifest

8 injustice, justifying plain error review." State v. White, 518 S.W.3d 288, 293 (Mo. App. E.D. 2017) (citing State v. Collins, 290 S.W.3d 736, 744 (Mo. App. E.D .2009)). Analysis Pursuant to Section 557.036.1 RSMo (Cum. Supp. 2022), 2 the trial court "shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly." The court has a duty to evaluate each sentence on a case-by-case basis and to determine an appropriate punishment to fit both the crime and the criminal. Morse v. State, 462 S.W.3d 907, 913 (Mo. App. E.D. 2015) (citing State v. Lindsey, 996 S.W.3d 577, 579 (Mo. App. W.D. 1999)). We presume the trial court considers appropriate sentencing factors and disregards improper matters. Id. While the trial court generally has broad discretion in determining a sentence, the discretion is not without limit. Betts, 559 S.W.3d at 56. The trial court cannot use sentencing to punish a defendant more harshly for exercising his right to trial. Morse, 462 S.W.3d at 913 (internal quotation omitted). To prevail on a claim that the trial court improperly increased his sentence in retaliation for exercising his constitutional right to trial, Eagleton must show not only that the court considered his decision to proceed to trial, but also that it was the "determinative factor" in the sentence imposed. Betts, 559 S.W.3d at 56 (citing Collins, 290 S.W.3d at 747 (citing State v. Palmer, 193 S.W.3d 854,

2 All further statutory references are to RSMo (Cum. Supp. 2022).

9 857 (Mo. App. S.D. 2006))). In order to satisfy the determinative factor test, something beyond the mere possibility retaliation could have been a factor in the court's sentence must be shown. Morse, 462 S.W.3d at 914 (quoting Taylor v. State, 392 S.W.3d 477, 488 (Mo. App. W.D. 2012)) (emphasis in original). The Taylor court held the key characteristic of retaliatory sentencing was the trial court statements directly connecting the sentence to a comment about the exercise of the constitutional right to trial. 392 S.W.3d at 490 (citing State v. Wright, 998 S.W.3d 78 (Mo. App. W.D. 1999); Thurston v. State, 791 S.W.2d 893 (Mo. App. E.D. 1990); and Vickers v. State, 17 S.W.3d 632 (Mo. App. S.D. 2000)). "In each of those cases, there was no doubt that retaliatory intent was a 'determinative factor,' that is to say, an actual factor, in sentencing." Id. at 489. Specifically, in Greer v. State, 406 S.W.3d 100, 111 (Mo. App. E.D. 2013), relied on by Eagleton, the record showed it was clear the defendant's exercise of his constitutional right was an actual factor considered by the sentencing court in light of the statements made before pronouncing sentence. In contrast, the court noted retaliation was not found to be a determinative factor in cases "where the record established that other appropriate factors aside from the assertion of a constitutional right were considered in imposing sentence, then a generalized comment on the assertion of a constitutional right is not a determinative factor in imposing sentence." Id. at 491 (citing Lindsey, 996 S.W.2d at 581; Palmer, 193 S.W.3d at 857; Collins, 290 S.W.3d 746-47). It is fundamental the trial court cannot punish a defendant more harshly merely because he exercised his right to trial, but the

10 court may certainly consider the defendant's character including his attitude toward the offense. Betts, S.W.3d at 56 (internal citation omitted). At sentencing, the state recommended a sentence of four years incarceration pursuant to Section 559.115, which could permit Eagleton to be eligible for probation after one hundred and twenty days upon certain conditions, as well as restitution in the amount of $30,000. Counsel for Eagleton then stated, "Your Honor, we are asking for probation. Our first request that – will be that you suspend imposition of sentence; alternatively, that you would sentence him to four years in the Department of Corrections, suspend execution of sentence, in the alternative. That would be our request." During their discussion, the court asked the state for the pre-trial offer and commented, "So you're asking me to impose a sentence that he had on the table before he decided to go to trial?" The court also reviewed the sentencing assessment report and heard statements from Victim, his wife (Wife), and Eagleton. Without any further explanation, the trial court pronounced a sentence of five years in prison and no restitution. According to Eagleton, the court's question regarding the pre-trial plea negotiations clearly indicates his sentence was in retaliation because he rejected the state's offer. We find the record shows the assault resulted in severe injuries to Victim, including fracturing his jaw in multiple places, requiring him to have his mouth wired shut. Victim testified it was incredibly painful, and he still suffers residual pain from the injury. Wife also made a statement to the court about the impact of the crime on their family. She cared for Victim while he recovered and was forced to eat through a straw

11 for several months. Wife stated now she fears for Victim when he leaves the house and has undergone therapy to help deal with the impact of the crime on her. In addition, the state argued Eagleton lacked accountability and remorse for the assault. The prosecutor referred to Eagleton's initial denial of his actions and footage of the incident which showed Eagleton hitting Victim in the jaw then attempting to hit him again after he was unconscious. The prosecutor also noted Eagleton's misstatements to the police about Victim grabbing him and pushing him, which were refuted by video footage of the incident. The prosecutor informed the court Eagleton tried to contact a municipal judge, in the prosecutor's opinion, to "influence the investigation" and further avoid accountability. This overall lack of responsibility and remorse for the crime supported the state's recommendation in the prosecutor's opinion. In light of the severity and violence of the crime, as well as the impact on Victim and his family, coupled with Eagleton's actions in attempting to evade responsibility, it is clear there was evidence of other appropriate factors the court considered in imposing its sentence. The question regarding the pre-trial offer and clarifying Eagleton's requested sentence could be construed as reference to his refusal of the offer. We agree with the state's concession at oral argument the trial court's inquiry was "ill-advised" and such references should not be made during sentencing. However, there is nothing in the record before us directly connecting this question to an improperly enhanced, retaliatory sentence. Instead, the court sentenced him in accordance with the requirements of Section 557.036.1, requiring consideration of the nature and circumstances of the offense and the character of the defendant. While Eagleton received a longer sentence than

12 recommended by the state, it was two years less than the maximum sentence available for second -degree assault and did not include restitution. In light of these circumstances, we cannot conclude the trial court impermissibly subjected Eagleton to a harsher sentence because he refused the state's pre-trial offer and proceeded to trial. Thus, the trial court did not plainly err in sentencing Eagleton to five years. Point three is denied. CONCLUSION The judg ment of the trial court is affirmed. _____________________________________ Lisa P. Page, Judge Robert M. Clayton III, Presiding Judge and Michael E. Gardner, Judge concur.