State v. Charron, 51278
| Decision Date | 03 November 1987 |
| Docket Number | No. 51278,51278 |
| Citation | 743 S.W.2d 436 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Kenneth CHARRON, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Claude Hanks, Creve Coeur, for defendant-appellant.
William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Kenneth George Charron, was convicted by a jury in the Circuit Court of the City of St. Louis of four counts: forcible rape, in violation of Section 566.030, RSMo; two counts of robbery in the second degree, in violation of Section 569.030, RSMo, and burglary in the first degree, in violation of Section 569.160, RSMo. He was sentenced by the court, as a prior and persistent offender, to three terms of life imprisonment and one term of thirty years, said sentences to be served consecutively.
Dorothy Winston, age 79, resides in a first floor flat at 3118 Texas in the City of St. Louis. The second floor flat is occupied by Mrs. Winston's 59 year old daughter, Evelyn Glasscock, and her husband Paul Glasscock. Both Paul and Evelyn are deaf mutes. On the evening of April 15, 1985, two young men came to Mrs. Winston's flat looking for Evelyn's son John Glasscock. After Mrs. Winston informed the men that John was not home they left the house. About 10:00 p.m., however, they returned. Mrs. Winston found the two men standing in the kitchen. The two were later identified as Mark Powers and the defendant, Kenneth Charron. Mrs. Winston inquired as to why they were in her kitchen but there was no answer. When she told them to leave Powers attacked her with a screwdriver and forced her into a chair. He threatened her with the screwdriver, demanding that she give him some money. When she said that she had no money he found her purse and removed six dollars. While Powers was terrorizing Mrs. Winston, defendant ransacked the house pulling out drawers and throwing things on the floor. Unaware of what was going on, Evelyn entered her mother's kitchen and was confronted by Powers who pushed her to the floor and attempted to injure her eye with the screwdriver. Powers then dragged Evelyn into the living room. Defendant then raped Evelyn while Powers tried to do the same with Mrs. Winston on the sofa but was unsuccessful. After about thirty minutes, defendant and Powers switched positions with defendant going to the closet and taking some identification cards from Mrs. Winston's coat and Powers raping Evelyn. Before fleeing the scene, Powers removed one hundred dollars from Evelyn's pocket.
On appeal, defendant raises three points. First, that the trial court erred in convicting defendant of a class A rape, as the indictment only charged defendant with class B rape. Second, that the trial court erred in sentencing defendant to life terms for defendant's two convictions for second degree robbery because such sentencing exceeds the statutory limit. Third, that the trial court erred in permitting the codefendant to appear at defendant's trial dressed in prison garb because such attire prejudiced the jury against the defendant.
Before reaching the merits of defendant's first point we must note that defendant has provided this court with an incomplete legal file. Defendant complains that he was indicted for one crime and convicted of another. However, defendant has failed to provide this court with the instructions that were given to the jury. Without these instructions it is impossible to determine what crime the jury found defendant guilty of. Rule 30.04(a) clearly states that "the record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either defendant or respondent." It is the burden of defendant to demonstrate error and therefore it is his duty to prepare and file a transcript which incorporates the proceedings below wherein the trial court erred. State v. Clark, 671 S.W.2d 1 (Mo.App.1983). Under these circumstances defendant's first point is not reviewable on appeal. Id. Because of the severity of the sentence, however, we must still review the point under the plain error doctrine to the extent permissible on the record before us. The standard of review under the plain error doctrine is that the plain error complained of must impact so substantially upon the rights of the defendant that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986).
The defendant alleges in his first point that the trial court erred in convicting him of a class A rape in that the indictment only charged him with a class B rape. In support of his contention defendant directs this court to Section 566.030 RSMo 1979 which provides: 1
1. A person commits the crime of rape if:
(1) He has sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion; or
(2) He has sexual intercourse with another person to whom he is not married who is less than fourteen years old.
2. Rape is a class B felony unless in the course thereof the actor inflicts serious physical injury on any person or displays a deadly weapon in a threatening manner, in which cases rape is a class A felony.
However, the statute on which defendant relies was not in effect on April 15, 1985, the date the rape was committed. Defendant was indicted under the new rape statute, Section 566.030 RSMo Cum Supp 1984, which went into effect on August 13, 1980. That statute provides:
1. A person commits the crime of forcible rape if he has sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion.
2. Forcible rape or an attempt to commit forcible rape as described in subsection 1 of this section is a felony for which the authorized term of imprisonment, including both prison and conditional terms, is life imprisonment or a term of years not less than five years, unless in the course thereof the...
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State v. Rodriguez
...both assumed that prejudice to the defendant was possible. See (United States v. Brooks, 125 F.3d 484 (7th Cir.1997)); State v. Charron, 743 S.W.2d 436 (Mo.Ct.App.1987). Although the court in Brooks affirmed the defendant's conviction, it considered whether the government witness's appearan......
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Charron v. Gammon, s. 94-3661
...limit. Third, the trial court erred by permitting his alleged accomplice to appear in court dressed in prison clothing. State v. Charron, 743 S.W.2d 436 (Mo.Ct.App.1987). Charron also filed a motion for an extension of time to file a supplemental brief to raise 12 additional issues; however......
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State v. Hardin
...granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10. 2.Williams and Anderson cite to State v. Charron, 743 S.W.2d 436, 438 (Mo.App.1987), and Toney v. State, 770 S.W.2d 411, 414 (Mo.App.1989), both of which remarked, without further analysis, that section 5......
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State v. Luckett, 54320
...hearing. In failing to provide that transcript, defendant has failed to meet his burden of demonstrating error. State v. Charron, 743 S.W.2d 436, 437 (Mo.App.E.D.1987); Rule 30.04(a) and Under this point, defendant also alleges that the trial court erred in allowing transcribed excerpts of ......