State v. Bratton, WD
| Decision Date | 19 September 1989 |
| Docket Number | No. WD,WD |
| Citation | 779 S.W.2d 633 |
| Parties | STATE of Missouri, Respondent, v. William H. BRATTON, Appellant. 41200. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Public Defender, John L. Vohs, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for respondent.
Before GAITAN, J., Presiding, and MANFORD and ULRICH, JJ.
Appellant, William Bratton, appeals his conviction for attempted burglary in the second degree (§ 564.011, RSMo 1986). 1 Following his conviction by jury trial, Mr. Bratton was sentenced to a term of five years imprisonment. He contends that the trial court erred by permitting the state to amend its information after the instructions were read to the jury, and by overruling his objection to the state's question to him on cross-examination asking whether his testimony at trial was the first time that he had made a statement to explain the presence of his fingerprint at the crime scene. The judgment is affirmed.
At approximately 6:45 p.m. on November 20, 1987, a witness observed from his residence an unknown man pulling at the front door of his neighbor's house, the Sneed residence. The early evening was dark. The witness observed that the front porch light of the Sneed residence was not lighted. Looking through a window of his residence, the witness saw the unknown man leave the Sneed's front door, go to a window, then to the garage door, and finally to a side door in an attempt to enter the Sneed residence. The witness telephoned for police assistance. When a police car drove by the Sneed residence, the witness observed the unknown man, upon seeing the police car, leave the Sneed property through the Sneed's back yard.
Officer John Smith of the Kansas City, Missouri, Police Department, contacted the witness and was given a description of the man the witness saw. The police officer radioed the description to the police dispatcher. Approximately five minutes later police officers observed the appellant, Mr. Bratton, running two blocks from the Sneed residence. Mr. Bratton was detained.
Mr. Bratton identified himself to police officers as William H. Jackson. He volunteered to go to police headquarters to submit his fingerprints for identification. He was first taken by police officers to the crime scene and then to a police station in Kansas City.
The light bulb in the front porch light fixture of the Sneed residence was loose, and the globe cover to the porch light fixture was discovered by police officers on the ground to the side of the front door. Pry marks were observed on the front door of the residence. Police investigators obtained fingerprints from the light bulb in the front porch light fixture. A fingerprint taken from the light bulb in the Sneed porch light fixture had seventeen identifiable characteristics, all of which matched characteristics of a fingerprint taken from the detainee, identified at police headquarters as Mr. Bratton.
Mrs. Sneed did not know Mr. Bratton. She had never seen him before, and she had not given him permission to enter her home.
Mr. Bratton contends that the court erred by allowing the state, over his objection, to amend the information charging him with attempted burglary in the second degree after the instructions had been read but before the case was submitted to the jury. The applicable portion of the unamended information stated, "The prosecuting attorney ... charges that the defendant ... attempted to enter an inhabitable structure ... by applying [an] unknown type of tool to pry on the front door and also removed a window screen...." (Emphasis added.) The issue was raised when the assistant prosecuting attorney who tried the case noticed after the instructions were read to the jury that the verdict-directing instruction required as part of the second element of the offense that for the jury to find the defendant guilty, it had to find beyond a reasonable doubt that, not only did the defendant attempt to enter the Sneed residence by applying an unknown tool to pry the front door, but that he also "removed a window screen" from the residence. No evidence was introduced that a window screen had been removed from the Sneed residence. The trial court granted the state's motion to strike the indicated words from the information and the same words were redacted from the verdict finding instruction. The court resubmitted the instructions to the jury, including the amended verdict finding instruction.
Rule 23.08 provides that "[a]ny information may be amended ... at any time before verdict or finding if no additional or different offense is charged and if a defendant's substantial rights are not thereby prejudiced...." See also State v. Carter, 771 S.W.2d 844, 846 (Mo.App.1989). The test for prejudice under Rule 23.08 is whether a defense to the charge as originally made would be equally available after the amendment and whether defendant's evidence would be equally applicable after, as well as before, the amendment. State v. Sipes, 651 S.W.2d 659, 663 (Mo.App.1983).
Mr. Bratton does not claim that an additional or different offense was charged by amending the information. He says that he would have argued to the jury that the state failed to prove a window screen had been removed from the Sneed residence as alleged in the unamended information, and the state's failure to offer any evidence of a screen's removal would have helped him establish reasonable doubt in the minds of the jurors. Because the allegation that Mr. Bratton had removed a window screen from the Sneed residence was redacted from the information, Mr. Bratton was not able to argue that the state failed to prove a fact it alleged in the charge and that he was thereby prejudiced.
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State v. Flores-Martinez
...in the charging document that is unnecessary to the crime charged does not amount to prejudice under Rule 23.08. State v. Bratton , 779 S.W.2d 633, 635 (Mo. App. 1989). Id.Again, because the word anus was unnecessary to the offense charged in the information, any defense, evidence, or argum......
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Alexander v. State
...the amendment and whether defendant's evidence would be equally applicable after, as well as before, the amendment." State v. Bratton, 779 S.W.2d 633, 634 (Mo.App.1989). Alexander does not offer any proof that the name changes cost him some defense on which he intended to rely or forced him......
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State v. Johnson
...no way altered the factual allegations against defendant nor charged him with an additional or different offense. See State v. Bratton, 779 S.W.2d 633, 635 (Mo.App.1989) where the alteration of defendant's anticipated closing argument, resulting from an amendment to the information, is not ......
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State v. Walter, 67777
...a technical defense is not the type of prejudice referred to under Rule 23.08." Endicott, 881 S.W.2d at 664. See also State v. Bratton, 779 S.W.2d 633, 634-35 (Mo.App.1989). An amendment proper under Rule 23.08 may be made to conform the information to the evidence. State v. Eaton, 504 S.W.......