STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD35151 ) Filed: January 31, 2019 DAVID JAMES MILCENDEAU, ) ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable John D. Beger, Circuit Judge
AFFIRMED After a jury trial, David Milcendeau (Defendant) was found guilty of the class B felony of child molestation in the first de gree and the unclassified felony of statutory sodomy in the first degree. See § 566.067; § 566.062. 1 Factual and Procedural Background Defendant’s appeal presents two plain error points relating to a venue issue. See Rule 30.20. Therefore, our summary of the even ts in this case will be limited to the facts relevant to those two points.

1 All statutory references are to RSMo Cum. Supp. (2013) unless otherwise indicated. All rule references are to Missouri Court Rules (2018).2 The two charges against Defendant we re specified in a May 2016 grand jury indictment filed in the Circu it Court of Pulaski County, Missour i. The indictment alleged that the two offenses were committed against H.B. (Victim), a child less than 14 years of age, in Pulaski County. In June 2016, Defendant filed an application for change of venue pursuant to Rule 32.03. The case wa s transferred to Phelps County. A pretrial conference was held on Ma y 25, 2017. The issue of venue was not brought up by defense counsel. Trial commen ced on May 30, 2017. At the close of the State’s case, defense counsel first raised the venue issue in Defendant’s motion for judgment of acquittal. Counsel requested dismi ssal of the sodomy charge because the State had failed to prove the crime took place in Pu laski County. The trial court denied the motion. Defense counsel rene wed that request in Defenda nt’s motion for judgment of acquittal at the close of all of the evidence, which the trial court also denied. Instruction No. 10, which was the verdict-directing inst ruction for the sodomy charge, hypothesized in relevant part that the conduct constituting th e offense occurred “in the County of Pulaski, State of Missouri[.]” 2 During the initial portion of the State’s closing argument, the prosecutor stated: I have to show you that it happened in Pulaski County. We know it happened at a river. We know it happen ed close to where [Defendant] lived, which was in Pulaski County. And it’s safe to assume that right there, there’s no county line that ithappened in Pulaski County.

2 This followed the format for submitting statutory sodomy in the first degree in Paragraph First of MAI-CR 3d 320.11 (2016 ed.) . It did not follow the format for submitting statutory sodomy in the first degree in Paragraph First of MAI-CR 4 th 420.16 (2017 ed.), which omitted any reference to th e city or county where the offense was committed. The latter instruction should have b een used in Defendant’s trial because it occurred after January 1, 2017. See MAI-CR 4 th (2017 ed.), “Effective Dates” at 27.3 There was no objection to this comment, and defense counsel did not address this issue during Defendant’s closing argument. The jury found Defendant guilty of both charged offenses. In Defendant’s motion for new trial, he argued that the trial court erred by denying Defendant’s motions for judgment of acquittal. Defendant argued that the court lacked jurisdiction over the sodomy charge because th e State failed to prove the crime occurred in Pulaski County. At the hearing on the ne w trial motion, defense counsel argued that the State’s alleged failure to pr ove the location of the sodomy offense was a jurisdictional issue. In response, the prosecutor argued that this aspect of Defendant’s new trial motion presented a venue issue, which was waived wh en Defendant received a change of venue. The trial court denied the motion for new trial.
Discussion and Decision Defendant’s points request pl ain error review of the Stat e’s alleged failure to prove venue and of an improper comment about th e venue issue during the State’s closing argument. Rule 30.20 states, in pertinent part, th at “plain errors aff ecting 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.” Id . Plain error review is discretionary. State v. Clay , 533 S.W.3d 710, 714 (Mo. banc 2017). An appellate court w ill not engage in plain error review unless th e claimed error facially esta blishes substan tial grounds for believing that a manifest injustice or a miscarriage of justice has resulted. Id

. “A claim of plain error places a much greater burden on a defendant than an assertion of prej udicial error.” State v. Wright , 216 S.W.3d 196, 199 (Mo. App. 2007). Plain error and prejudicial erro r are not synonymous terms, a nd mere allegations of error4 and prejudice will not suffice. Id . “Plain error must be evident, obvious, and clear.” State
v. Walter , 479 S.W.3d 118, 131 (Mo. banc 2016). “Pla in error can serve as the basis for granting relief on direct appeal only if the error was outcome determinative.” State v.
Placke , 290 S.W.3d 145, 153 (Mo. App. 2009).
Point 1 In Defendant’s first point, he contends the trial court plainly erred by failing to require evidence sufficient to establish venue in Pulaski County for the sodomy charge prior to trial, in that no witness testified the offense occurred in that county. Defendant concedes he made no pretrial ob jection to venue. Nevertheless , he argues that the absence of proof of venue at trial constituted plain e rror, based on art. I, § 18(a) of the Missouri Constitution; §§ 476.410 and 56.060.1. 3 He requests a remand for a determination of venue. We conclude that Point 1 lacks merit for two reasons: (1) Defendant invited the error by failing to assert his venue challenge before the trial commenced; and (2) Defendant waived the error both by proceeding to trial without objection and by requesting a change of venue to Phelps County. First, Defendant invited any error. In State v. Taylor , 238 S.W.3d 145 (Mo. banc 2007), the defendant did not object to venue until after the trial started. Defense counsel raised the issue in a motion to dismiss for improper venue, filed on the first day of trial, and in a motion for judgment of acquittal fi led at the close of the State’s evidence. Id . at 147. Our Supreme Court explained that it was e rror to submit the issue of venue in a jury instruction because it was not an element of the offense. Id . at 148. “If a criminal defendant believes venue is incorrect, the defe ndant must object. If the defendant does not

3 All references to § 476.410 are to RSMo (2000).5 object, the case can be tried even though venue would otherwise be incorrect. Incorrect venue does not affect a trial cour t’s power to render judgment.” Id . at 149. 4 The Court then described how to correctly ch allenge venue in a criminal case: A defendant’s objection to venue must be made before trial. If the defendant challenges the correctne ss of venue, the trial court must determine the issue. The pros ecution ... must then prove by a preponderance of the evid ence that the crime occurred in the county where the case is filed. Since the objection to venue is a pretrial matter, and venue is not an element of the offense, th e judge will determine the facts as to venue. If, after the defendant objects to venue, the state fails to prove that venue is correct, the trial court should transfer the case to a county where venue is proper, as required by se ction 476.410. ... Under this analysis, there was error because the issue of proper venue was not ruled upon until trial. This error, however, was invited because Taylor did not object to venue before trial

. Taylor , 238 S.W.3d at 150-51 (emphasis added; f ootnote omitted). In the case at bar, Defendant did not raise the venue issue until after the trial had started. Therefore, Defendant invited any venue error. We declin e to exercise our disc retionary authority to review for plain error. “While plain error revi ew is discretionary, an appellate court should not use it to impose a sua sponte duty upon a trial cour t to correct mistakes of a defendant’s own making.” State v. Shockley , 410 S.W.3d 179, 201 (Mo. banc 2013). Second, Defendant waived the venue issu e. There is a long line of Missouri authority holding that a defendant who proceed s to trial without challenging venue waives that alleged error. See, e.g. , State v. Gaines , 316 S.W.3d 440, 454 (Mo. App. 2010)

4 This principle is supported by the pl ain language of § 545.030.1, which states, in relevant part, that “[n]o indictment or info rmation shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected ... (8) For want of a proper or perfect venue; nor (9) For want of any venue at all[.]” § 545.030.1(8)-(9) RSMo (2000); see State v. Leigh , 423 S.W.2d 690, 692 (Mo. 1968); State v. Barnes , 980 S.W.2d 314, 321 (Mo. App. 1998).6 (defendant waived objection by faili ng to challenge venue before trial); State v. Cable , 207 S.W.3d 653, 658 (Mo. App. 2006) (defendant waiv ed complaint that venue was improper by proceeding to trial); State v. Morrison , 869 S.W.2d 813, 814-15 (Mo. App. 1994) (the defendant’s venue objection in his motions for judgment of acquittal at the close of the State’s case and at the close of all of the ev idence were insufficient and came too late);
State v. Vincent , 582 S.W.2d 723, 725 (Mo. App. 1979) (h aving gone to trial with no challenge to venue, defendant wa ived his right to object). Defendant also waived the venue issue by requesting a change of venue to Phelps County. Defendant’s reliance on M O . C ONST . art. I, § 18(a) and § 476.410 is misplaced. 5 The venue provision in this subsection of the Missouri Constitution confers a personal privilege that can be waived. See, e.g. , State v. Wood , 596 S.W.2d 394, 401 (Mo. banc 1980); State v. Leigh , 423 S.W.2d 690, 692 (Mo. 1968); Skaggs v. State , 754 S.W.2d 10, 11 (Mo. App. 1988). A waiver occurs when a defendant proceeds to trial without raising this venue objection. See Wood , 596 S.W.2d at 401. This waiv ed venue objection is not reviewable as plain error. Leigh , 423 S.W.2d at 692. A waiv er also occurs when a defendant moves for a change of venue pursuant to Rules 32.03 and 32.04, as Defendant did here. See Taylor , 238 S.W.3d at 149; State v. Williams , 455 S.W.3d 1, 6 (Mo. App. 2013); State v. Rowe , 363 S.W.3d 114, 117-18 (Mo. App. 2012) . Likewise, a right to request a transfer pursuant to § 476.410 can be waived by failing to challenge venue before

5 In relevant part, this constitutional provision gives a defendant the right to “a speedy public trial by an impartial jury of the county.” M O . C ONST . art. I, § 18(a). The statute states that “[t]he divi sion of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the cas e to any division or circuit in which it could have been brought.” § 476.410.7 the trial commences. See Taylor , 238 S.W.3d at 150; Hall v. Podleski , 355 S.W.3d 570, 577 n.10 (Mo. App. 2011). Defendant’s last argument is based upon § 56.060. In pertinent part, this statute

states: Each prosecuting attorney shall co mmence and prosecute all civil and criminal actions in the prosecuting atto rney’s county in which the county or state is concerned, defend all suits ag ainst the state or county, and prosecute forfeited recognizances and actions fo r the recovery of debts, fines, penalties and forfeitures accruing to the state or county. In all cases, civil and criminal, in which changes of venue are granted, the prosecuting attorney shall follow and prosecute or defend, as the case may be, all the causes, for which, in addition to the fees now allowed by law, the prosecuting attorney shall receive his or her actual expenses. § 56.060.1. According to Defendant, the failure to prove venue at trial means that the information filed by the Pulaski County prosec utor was void. Defendant cites no authority to support that proposition, and we have disc overed none in our i ndependent research. Defendant’s argument is refuted by § 545.030.1( 8)-(9) RSMo (2000), which states that “[n]o indictment ... shall be deemed invalid ... (8) For want of a pr oper or perfect venue; nor (9) For want of a ny venue at all[.]” Id . A similar argument, based on § 56.060, was rejected in Campbell v. Dir. of Revenue , 297 S.W.3d 656, 659 (Mo. App. 2009), and State
v. Jackson , 942 S.W.2d 942, 944 (Mo. App. 1997). For all of the foregoing reasons, Defendant has failed to establish facially subs tantial grounds for believing that a manifest injustice or miscarriage of ju stice has occurred. Therefore, we decline to exercise our discretionary authority to review fo r plain error. Point 1 is denied.
Point 2 In Defendant’s second point, he contends the trial court plai nly erred by allowing the prosecutor to argue that there was no c ounty line near Defendant’s home. Defendant8 argues that the trial court’s failure to act sua sponte to intervene in the prosecutor’s argument meant the State was not requi red to prove all required facts. “A conviction will be reversed based on pl ain error in closing argument only when it is established that the argument had a decisive effect on the outcome of the trial and amounts to manifest injustice.” State v. Edwards , 116 S.W.3d 511, 536-37 (Mo. banc 2003) (emphasis added); Walter , 479 S.W.3d at 124. Such an e ffect is demonstrated where there is a reasonable probability the verdict would have been different in the absence of the argument. State v. Chism , 252 S.W.3d 178, 186 (Mo. App. 2008) . “In reviewing closing arguments, this Court examines the context of the argument made in light of the entire record.” Walter , 479 S.W.3d at 124. Our review of th e record demonstrates no basis to believe a plain error occurred here. As noted in Point 1, Defendant waived the venue issue by proceeding to trial without objection and by obtaining a change of venue. We are hard-pressed to discern how an argument about a waived issue had a decisive defect on the jury’s verdict. Furthermore, the issue of venue should not have b een submitted to the jury to decide. See State v. Roggenbuck , 387 S.W.3d 376, 382 (Mo. banc 2012) (“The jury is not required to find facts that are not elements of the offense, such as the location of the crime for venue purposes.”);
MAI-CR 4 th 420.16 (only requiring in Paragraph Firs t that the jury find the crime of statutory sodomy occu rred within Missouri); Taylor , 238 S.W.3d at 150 (if a defendant objects, the judge will determine the facts as to venue). By not raising the issue before trial, Defendant invited that error. See Taylor , 238 S.W.3d at 150. In Taylor , defense counsel failed to raise the venue issue before trial commenced. Id . at 147. During closing argument, the trial judge prohibited defense c ounsel from arguing that the State failed to9 prove venue as required by the verdict-directing instruction. Id . at 147-48. Our Supreme Court decided that the defendant suffe red no prejudice from that procedure: Because the trial court used MAI-CR 320.01 as the jury instruction in this case, the jury’s verdict of guilty reflects its decision, beyond a reasonable doubt, that the rape occurred in th e city of St. Louis. The jury’s determination that the state had met this higher burden of proof indicates that the failure to address venue in a pretrial proceeding wa s not prejudicial.
Id . at 151. We reach the same conclusion here. By including venue information in In struction No. 10, the verdict-directing instruction for the sodomy count, the St ate assumed an unnecessary burden. The prosecutor’s argument addressing the venue issue dr ew neither an objec tion nor a response during Defendant’s closing argument. Our review of the record does not persuade us that the prosecutor’s brief comment had a decisive effect on the jury’s decision. Instead, as in Taylor , Defendant suffered no prejudice because the jury found in the State’s favor on the venue issue. Point 2 is denied. The judgment of the trial court is affirmed.

JEFFREY W. BATES, J. – OPINION AUTHOR WILLIAM W. FRANCIS, JR., P.J. – CONCUR MARY W. SHEFFIELD, J. – CONCUR