STATE OF MISSOURI, Plaintiff-Respondent v. CHESTER WILLIAM FEWINS ( 2021 )

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD36923
)
CHESTER WILLIAM FEWINS, ) Filed: August 31, 2021
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY
Honorable Calvin R. Holden
CONVICTIONS AFFIRMED; CASE REMANDED TO CORRECT SENTENCES
Chester William Fewins (“Defendant”) appeals his bench-trial convictions of
three counts of first-degree statutory rape, one count of attempted first-degree statutory
rape, three counts of first-degree child molestation, one count of first-degree statutory
sodomy, one count of felony abuse of a child, and one count of tampering with a victim. 1
Defendant’s first point claims the trial court abused its discretion in denying his
request for a continuance to, among other things, secure an expert on involuntary
intoxication. The other points correctly claim that the ninety-nine-year sentences
imposed in the judgment on various convictions are inconsistent with the trial court’s oral
pronouncement at sentencing.
1
The court granted Defendant’s motion for judgment of acquittal as to count 6 – attempted statutory
sodomy in the first degree.
1
Because the trial court did continue the case at Defendant’s request (albeit for a
different reason), we deny his first point and affirm his convictions. We remand the case
solely to direct the trial court to correct its written judgment nunc pro tunc.
Background
All of Defendant’s crimes were committed against his step-daughter (“Victim”),
who was under 14 years of age at the time they took place. Defendant does not challenge
the sufficiency of the evidence supporting his convictions.
Defendant waived his right to a trial by jury, and the case was tried to the court.
On November 15, 2019, the second day of trial, Defendant called Wendy Pryor (“Nurse
Pryor”), a sexual assault nurse examiner trained in performing sexual assault forensic
exams (“SAFE exams”). Nurse Pryor testified that her SAFE exam of Victim revealed
that Victim’s hymen was intact, and all of the exam’s findings were normal. On cross-
examination, Nurse Pryor testified that normal exam results were not unusual as she
would not expect to see any vaginal trauma in a post-pubescent girl such as Victim
because “the body at that point is designed to have sex.”
After that testimony, defense counsel announced that he wanted “to call our
expert witness that we have discussed previously.” Defense counsel indicated that he had
called Nurse Pryor just to lay a foundation for this other expert, who he hoped would
rebut Nurse Pryor’s testimony by opining that Victim’s hymen should not be intact if
Defendant had abused her as she claimed. The State objected to the request for a
continuance on the ground that Defendant had not endorsed any witnesses, let alone any
expert witnesses.
2
The State claimed that defense counsel had filed a motion for a continuance a
month before trial that indicated defense counsel
wanted an expert to talk about medication and the effect that that would
have on [Defendant]. There was, at no point in time, any mention of a
request to hire an expert witness with regard to a SAFE or a SAFE exam.
The entirety of our conversation on October 10th with regard to a
continuance was hiring an expert with regard to hallucinations in response
to medication.
The trial court then went off the record. When the record resumed, the trial court
ruled as follows:
After discussion with the attorneys, the [S]tate opposes this, and
the defense has asked for it, but I am going to allow the defense to provide
the information, including the photographs, to an expert that they are
going to disclose today to the [S]tate for them to review the information,
because it’s my understanding this expert has just been asked to look at it
and hasn’t looked at it and rendered any report yet.
So I will go ahead and continue the bench trial and leave it open
while that is pending. I hope to hear something within the next six weeks
as to -- that they [have] reviewed it and you want to call them or not call
them, because I don’t want it to hang around.
The bench trial resumed on July 17, 2020, nearly eight months after it began. At
the completion of the trial, the judge found Defendant guilty of the offenses noted above.
Analysis
Point 1 – Alleged “Denial” of a Continuance
Defendant’s first point claims the trial court abused its discretion in denying his
request for a continuance on the ground that defense counsel said he wanted to secure an
expert witness to testify about the effects of Cymbalta, a prescription medication that
Defendant had taken, and Defendant now claims in his brief that involuntary intoxication
was going to be one of his primary defenses.
3
Because the trial court granted Defendant’s request for a continuance, and
Defendant does not claim that the length of the granted delay was insufficient to secure
any expert that he might have wanted to call, there is no adverse ruling by the trial court
for Defendant to appeal. Point 1 fails.
Points 2 through 6 – Clerical Errors in the Judgment
Points two through six claim
[t]he trial court erred in executing its written judgment denoting the length
of [Defendant]’s sentence as ‘99 Years’ for [Counts 1, 2, 4, 7, and 9] . . .
in that the 99-year sentence recited in [Defendant’]s written judgment
materially differs from the trial court’s oral pronouncement of ‘life,’ and
the oral pronouncement controls over the written, and, therefore, this is a
clerical error that should be corrected under [Rule] 29.12(c).[ 2]
We, and the State, agree.
If there is a material difference between the trial court’s oral
pronouncement of sentence and the written judgment, the oral
pronouncement of sentence controls. State ex. rel. Zinna v. Steele, 301
S.W.3d 510, 514 (Mo. banc 2010). “The failure to memorialize accurately
the decision of the trial court as it was announced in open court [is] clearly
a clerical [mistake].” State v. Taylor, 123 S.W.3d 924, 931
(Mo.App.S.D.2004).
McArthur v. State, 428 S.W.3d 774, 781-82 (Mo. App. E.D. 2014).
The trial court’s oral pronouncement during the sentencing hearing was:
Count 1 – “life imprisonment without probation”;
Count 2 – “life . . . without probation”;
Count 4 – “life in the Missouri Department of Corrections”;
Count 7 – “life”; and
Count 9 – “life[.]”
All counts were ordered to run consecutively.
2
Missouri Court Rules (2021).
4
However, the trial court’s written judgment substituted ninety-nine-year sentences
for life sentences. Those sentences are materially different because, among other things,
they have a different effect in determining parole eligibility dates. State v. Clark, 494
S.W.3d 8, 14 (Mo. App. E.D. 2016) (citing State v. Hardin, 429 S.W.3d 417, 419 (Mo.
banc 2014), for the proposition that, under section 558.019.4, RSMo 2000, a “life”
sentence is calculated to be 30 years)). Because the written judgment does not conform
to the trial court’s oral pronouncement of sentence, it contains a clerical error that may be
corrected nunc pro tunc. McArthur, 428 S.W.3d at 782.
Defendant’s convictions are affirmed, and the case is remanded to the trial court
to enter a corrected written judgment that conforms to the trial court’s oral
pronouncement of Defendant’s sentences on counts 1, 2, 4, 7, and 9.
DON E. BURRELL, J. – OPINION AUTHOR
MARY W. SHEFFIELD, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
5