STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. SD33261 ) CARVELLE D. HENDERSON, ) FILED: August 4, 2015 ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable William E. Hickle, Judge
AFFIRMED AND REMANDED WITH DIRECTIONS
Carvelle Henderson was sentenced to concurrent five-year terms for burglary and sexual abuse, plus 15 years consecut ive on attempted forcible sodomy, following convictions for pushing his way into his fr iend S.W.’s home and forcing himself on her. We affirm these convictions and sentences, but remand to correct a clerical error in the written judgment. 1

1 Statutory citations and rule references ar e to RSMo 2000 and Missouri Court Rules (2013) respectively. Unless otherwise in dicated, all citations were accessed via Westlaw or LEXIS. For convenience, we take Henderson’s three points out of order.Plain Error Complaint
Section 558.026.1 mandated consecutive sentencing if Henderson committed any offense “during or at the same time as ” his attempt to commit forcible sodomy.
The trial court ran Henderson’s latter senten ce consecutively as the prosecutor and defense counsel agreed was required. Charging plain error, Henderson reasons that his crimes occurred at different times so the statute would not apply and consecutive sentencing was not required. He claims the burglary was a completed crime when he en tered S.W.’s home, before he shoved her down and sexually assaulted her. He also claims the state failed to prove, as emphasized in his brief, that he “put his mouth on [S.W.]’s breast while he was trying to insert his fingers into her vagina.” 2 He seeks remand for the trial court to “exercise its judicial discretion” on consecutive sentencing, suggesting that counsel at sentencing may have misled the court as to § 558.026.1’s scope. We reject Henderson’s statutory interp retation. Duration of an offense may and often will extend past the instant of the crime’s final element. Consider these analogies:

 Assault may be prosecuted once the fi rst blow lands, yet the crime goes on as the beating continues. As long as the pummeling lasts, the victim is still being assaulted.

 Trespass, complete upon the first unauthorized step, continues until the intruder leaves the property.

2 We disagree and could deny plain error relief for this reason alone. Simultaneity is a reasonable inference from testimony th at Henderson held S.W. down, forced her shirt up and began sucking on her nipple, and also then tried to force her legs apart.

2 Burglary may occur as soon as a th ief breaks into an office tower intending to steal, but as he goes from office to office and floor to floor, the place is still being burglarized. Similarly, this burglary was in progress from Henderson’s forced entry with criminal
intent until he fled the premises after co mmitting sex crimes. Consecutive sentencing per § 558.026.1 was not error, plain or otherwise. Point denied. Brady Claim
Before we reach Henderson’s Brady claim, 3 we must address the state’s claim that we cannot consider this point, save perhaps for plain error, it having been asserted over 25 days following the verdict. State’s Procedural Complaint Rejected Following the jury verdicts, the defens e sought and was granted all 25 days allowed under Rule 29.11(b) for after-trial motions. Ther e was a timely motion for judgment of acquittal, but none for new tria l because, as defense counsel later put it, “we didn’t perceive any mistakes.” Only after the 25 days did counsel discover a Brady issue and submit a “Motion for New Trial Based on Newly Discovered
Evidence Filed Out of Time.”

“ Generally , the circuit court has no authority to waive or extend the time for filing a motion for new trial beyond th e time set forth in Rule 29.11(b).” State v.
Ess , 453 S.W.3d 196, 201 (Mo. banc 2015) (our emphasis); see also State v. Langston , 229 S.W.3d 289, 294 (Mo.App. 2007). Jurisdiction is not the problem,

see J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 251-54 (Mo. banc

3 Brady v. Maryland , 373 U.S. 83 (1963), discussed infra

.

32009), 4 nor does the state so claim. What we found in State v. Jacobs , 421 S.W.3d 507, 509-12 (Mo.App. 2013), and the Western District confirmed in State v. Oerly , 446 S.W.3d 304, 307-10 (Mo.App. 2014), regarding Rule 29.11(c) also fits Rule 29.11(b) – noncompliance may be error, but is not a jurisdictional defect that renders prior actions “void” or “nullities.” Of course, error need not be jurisdiction al to warrant appellate consideration.
Per Ess and many other cases, claims or argu ments for a new trial generally must be asserted within 25 days post verdict. This one was not. On the other hand, it is well understood that parties should not charge error they invited, or complain that a court did what they aske d, or argue one way to win at tr ial and the opposite to try to win on appeal, all of which the state does here. The state, presumably for its own purposes, twice pressed the trial court to consider the untimely Brady claim. Both times, the s tate urged this even before
defense counsel did. 5 If a criminal “statute of limi tations is non-jurisdictional and

4 Several prior cases, most predating J.C.W ., erroneously treate d Rule 29.11 time frames as jurisdictional. See, e.g ., Langston , 229 S.W.3d at 294 (trial court “lacked the jurisdiction” to grant untimely new tria l motion pursuant to Rule 29.11(b)).
5 Before the sentencing hearing, the tria l court noted both defense motions (for judgment of acquittal and “f or a new trial based on newl y discovered evidence filed out of time”) and asked for the state’s position. This colloquy followed: [PROSECUTOR]: Judge, I believe -- or the State believes that properly those motions should be filed as an d considered by the Court as posttrial motions pursuant to Rule 29.11, and we consent to the Court considering both of those motions as such. THE COURT: Is that acceptable with the Defense? [DEFENSE COUNSEL]: Yes, Judge. The state again volunteered this positi on after defense counsel admitted this Brady claim was “out of time because, it’s past the original 25 days.”

4can be waived,” Longhibler v. State , 832 S.W.2d 908, 911 (Mo. banc 1992), the state also could waive Rule 29.11(b)’s non-jurisdictional deadline here. Having convinced the trial judge that Rule 29.11(b) was no bar to reaching and ruling the state’s way on this issue, the state cannot now argue otherwise in seeking to limit our review of that ruling. Henderson’s Brady Complaint
Failure to disclose evidence favorabl e to the defense “violates due process where the evidence is material either to gu ilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87. This includes both exculpatory and impeachment evidence, even if the defense never requests it.
Strickler v. Greene , 527 U.S. 263, 280 (1999). 6 Henderson complains that the state did not disclose that its witness Kelley testified while facing a felony check charge filed by the same prosecutor’s office. After defense counsel learned this, from seei ng Kelley in court several weeks later, he filed his new trial motion ( see supra ) claiming the state had portrayed Kelley as a

THE COURT: Do you think it’s so mething that we can considerate [ sic ] this point? I don't know if you can co nsider it as an amendment to your motion for judgment of acquittal wh ich was filed on -- within the 25 days that you were granted. [DEFENSE COUNSEL]: Right. [PROSECUTOR]: Have no objection to that, Judge, that it be considered as an amendment to the original post-trial motion. THE COURT: Okay. All right. Go ahead.

6 Brady obligations thus differ from those under our Rule 25.03, as was detailed in State v. Moore , 411 S.W.3d 848, 852-54 & n.2 (M o.App. 2013). Henderson does not claim Rule 25.03 was violated, only Brady , so we limit our analysis accordingly.

5pillar of the community, which the defense could have assailed had it known Kelley had a charge pending. The court denied relief, wh ich we affirm, finding no Brady prejudice. Brady – Material Evidence and Prejudice
In Brady ’s context, “material” evidence de notes a reasonable probability that disclosure would have changed the verdict. Strickler , 527 U.S. at 280. Strictly speaking, there is no Brady violation absent this reasonable probability. Id . at 281. Materiality in this sense is interchangeable with prejudice, Moore , 411 S.W.3d at 856, as Strickler confirmed in describing “t hree components of a true Brady
violation: The evidence at issue must be favora ble to the accused, either because it is exculpatory, or because it is impeaching; that evidence must ha ve been suppressed by the State, either willfully or inadvertently; and prejudic e must have ensued.” 527
U.S. at 281-82. 7 Henderson, in effect, strongly argues these first two elements, but barely touches on prejudice where hi s problem lies. We can find Brady prejudice (or materiality) only if nondisclosed evidence could reasonably be taken to cast the whole case in such different light as to undermine our confidence in the verdict.
Moore , 411 S.W.3d at 856. That was not so in Moore and is not so here.
Henderson swore he never saw S.W. th at day. Yet when officers found him after the crime, he was dressed precisely as S.W. had described. This alone tends to settle who was lying about Henderson bursti ng into S.W.’s home that evening. Add

7 This concise description by the Supreme Court seems pr eferable to reformulations attempted in later Missouri opinions.

67 Henderson’s police interview (video seen by the jury and this court); that some (perhaps much) of Kelley’s testimony was cumulative; and that the defense did not deem Kelley among the most important witnesses during trial. Given these factors and the other evidence, our conf idence in the verdict is no t shaken by non-disclosure of a charge against Kelley involving two $20 checks. Henderson does not convince us, or ev en argue at any length, that a different verdict was reasonably probable had this char ge been disclosed. We deny this point
for failure to establish a Brady violation. Moore , 411 S.W.3d at 856-57.
Clerical Error The written sentence and judgment de clare Henderson guilty of forcible sodomy, not attempted forcible sodomy as charged, reflected in the jury’s verdict, and confirmed and orally pronounced by the trial court at sentencing. Henderson
seeks remand to correct the writte n judgment. The state concurs. We agree. Failure to accurately record Henderson’s conviction was a clerical
error correctable nunc pro tunc

. State v. Woods , 357 S.W.3d 249, 256 (Mo.App. 2012). Remand is appropriate. Id . Point granted.
Conclusion We remand with directions solely to correct the written judgment to reflect that Henderson was convicted of attempted fo rcible sodomy, not forcible sodomy. In all other respects, the judgment and convictions are affirmed. DANIEL E. SCOTT, P.J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS MARY W. SHEFFIELD, C.J. – CONCURS