State v. Brass, No. 55614

CourtMissouri Court of Appeals
Writing for the CourtPUDLOWSKI
Citation781 S.W.2d 565
Decision Date19 December 1989
Docket NumberNo. 55614
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Fred BRASS, III, Defendant-Appellant.

Page 565

781 S.W.2d 565
STATE of Missouri, Plaintiff-Respondent,
v.
Fred BRASS, III, Defendant-Appellant.
No. 55614.
Missouri Court of Appeals,
Eastern District,
Division Two.
Dec. 19, 1989.

Page 566

Lisa K. Clover, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

This is an appeal from a conviction for sodomy, § 566.060 RSMo 1986. Defendant was convicted and sentenced to seven years imprisonment. We affirm.

The sufficiency of the evidence to convict defendant is not in dispute. Therefore, the evidence is viewed in the light most favorable to the verdict. Defendant was the fourteen year old son of Mr. and Mrs. Fred Brass. In 1982 the victim, at the age of five, was placed in defendant's family as a foster child. In June, 1987, she was removed from appellant's home and placed at the Annie Malone's Children's Home. On October 2, 1987, the victim informed Dorene Bussey, a social worker at Annie Malone, she had been sexually abused by appellant. The social worker contacted the Department of Family Services. On October 12, 1987, victim was taken to Cardinal Glennon Hospital for a physical examination. A videotaped interview was made on October 12, 1987, by Tish Larock in which she stated defendant had sexually abused her. The sex crime abuse unit was notified by the juvenile court on October 13, 1987, and asked to investigate the victim's claims. The victim told Detective Gary Guins defendant had sexually abused her.

Defendant testified the victim had behavior problems and called his mother as a witness in support of this contention. He also called the victim's brother to testify she had told him she lied about the charges.

Defendant raises three points on appeal. The first point asserts the trial court erred in overruling his objections to the admission of a corrected transcript of a videotaped interview of the victim. The second point addresses the trial court's allowance of the state to use personalization and propensity arguments during closing argument. The third point alleges insufficiency of the indictment based upon the time span covering four years and six months. Defendant contends this time span placed an unjust burden on him to prepare a suitable defense.

In his first point defendant asserts that the trial court erred in overruling his objections to the admission of a corrected transcript of a videotaped interview of the victim. Defendant believes this resulted in fundamental unfairness resulting in violation of his right to due process of law.

The defendant states that such a correction of a tape after trial began amounted to surprise. The general rule is that surprise is not grounds for a new trial. State v. Gatlin, 539 S.W.2d 731, 733 (Mo.App.1976). Once surprise has occurred, the proper remedy is to request a continuance or postponement. Id.

In the case at bar defendant never objected to the corrected transcript on the grounds of surprise. The only objection

Page 567

made was to the changing of a name on the transcript. The defendant failed to preserve the issue of surprise by asking for a continuance of the proceedings. Since defendant's objections at trial were based on a theory of admissibility his claim now alleging surprise fails. Point denied.

The second point defendant raises on...

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23 practice notes
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...to unexpected testimony, the proper remedy was continuance, not mistrial. State v. Biel, 169 S.W.2d 375, 376 (Mo.1943); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989). Page 918 The trial court committed no plain error in denying a mistrial. C. Suppression of Parker's Statements Parker ne......
  • Worthington v. Roper, Nos. 09–1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 6, 2011
    ...failure to timely disclose evidence under Missouri Supreme Court Rule 25.03, that “the proper remedy was continuance”); State v. Brass, 781 S.W.2d 565, 566 (Mo.Ct.App.1989) (“Once surprise has occurred, the proper remedy is to request a continuance or postponement.”). Moreover, because we e......
  • State v. Miller, No. SC 91948.
    • United States
    • United States State Supreme Court of Missouri
    • August 14, 2012
    ...covered span of about three months); State v. Weiler, 801 S.W.2d 417, 418 (Mo.App.1990) (four and a half months); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989) (four years and six months); State v. Burch, 740 S.W.2d 293, 296 (Mo.App.1987) (eight months); State v. Moesch, 738 S.W.2d 585,......
  • State v. Bynum, No. ED 92157.
    • United States
    • Court of Appeal of Missouri (US)
    • November 24, 2009
    ...Moreover, "[o]nce surprise has occurred, the proper remedy is to request a continuance or postponement." State v. Brass, 781 S.W.2d 565, 566 (Mo.App. E.D.1989). 299 S.W.3d 63 Finally, appellate courts will intervene in discovery matters only where the defendant shows that the fail......
  • Request a trial to view additional results
23 cases
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...to unexpected testimony, the proper remedy was continuance, not mistrial. State v. Biel, 169 S.W.2d 375, 376 (Mo.1943); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989). Page 918 The trial court committed no plain error in denying a mistrial. C. Suppression of Parker's Statements Parker ne......
  • Worthington v. Roper, Nos. 09–1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 6, 2011
    ...failure to timely disclose evidence under Missouri Supreme Court Rule 25.03, that “the proper remedy was continuance”); State v. Brass, 781 S.W.2d 565, 566 (Mo.Ct.App.1989) (“Once surprise has occurred, the proper remedy is to request a continuance or postponement.”). Moreover, because we e......
  • State v. Miller, No. SC 91948.
    • United States
    • United States State Supreme Court of Missouri
    • August 14, 2012
    ...covered span of about three months); State v. Weiler, 801 S.W.2d 417, 418 (Mo.App.1990) (four and a half months); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989) (four years and six months); State v. Burch, 740 S.W.2d 293, 296 (Mo.App.1987) (eight months); State v. Moesch, 738 S.W.2d 585,......
  • State v. Bynum, No. ED 92157.
    • United States
    • Court of Appeal of Missouri (US)
    • November 24, 2009
    ...Moreover, "[o]nce surprise has occurred, the proper remedy is to request a continuance or postponement." State v. Brass, 781 S.W.2d 565, 566 (Mo.App. E.D.1989). 299 S.W.3d 63 Finally, appellate courts will intervene in discovery matters only where the defendant shows that the fail......
  • Request a trial to view additional results

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