State v. Chowning, s. 17392

• Citation: 866 S.W.2d 165
• Decision Date: 30 November 1993
• Docket Number: Nos. 17392,18461,s. 17392
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James CHOWNING, Defendant-Appellant. and James CHOWNING, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 165

866 S.W.2d 165

STATE of Missouri, Plaintiff-Respondent, v. James CHOWNING, Defendant-Appellant. and James CHOWNING, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 17392, 18461.

Missouri Court of Appeals, Southern District, Division Two.

Nov. 30, 1993.

Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Judge.

James Chowning (Defendant) was convicted by a jury of the Class A felonies of forcible rape under § 566.030, ¹ sodomy and attempted sodomy under § 566.060, and armed criminal action under § 571.015, receiving consecutive sentences totaling ninety years. His direct appeal from those convictions is Case No. 17392.

After being sentenced, Defendant filed a motion under Rule 29.15, ² which was later amended by appointed counsel, alleging ineffective assistance of counsel. ³ He appeals the denial of that motion, after an evidentiary hearing, in Case No. 18461. These appeals were duly consolidated.

Defendant raises four points on this appeal: (1) there was no proof that a "deadly weapon" was used in the offenses as charged in the information; (2) the proof was insufficient to authorize the submission of the use of a "deadly weapon" in the verdict directing instructions; (3) the "reasonable doubt" instruction was improper; and (4) the motion court erred in denying his Rule 29.15 motion.

FACTS

The 62-year-old complaining witness (Victim) testified that on February 19, 1990, she was alone at home when she was awakened shortly after 1:00 a.m. by Defendant who had one knee on her bed and a knife against her throat. According to her testimony, Defendant told her that he had to kill her or her son, that he had left a note in her son's adjoining bedroom, ⁴ that they were going to party all night, and that she was the last woman he would be with before he went to the penitentiary. She then proceeded to describe multiple events of sexual intercourse and sodomy, including oral sex and attempted anal sex, lasting until almost 5:00 a.m. During these events, according to the Victim, Defendant held a knife against her throat and on one occasion placed it against the palm of her hand.

Defendant was arrested at his home approximately two hours later. While he was dressing, he placed a pocketknife on a table which was seized by the officers and subsequently introduced in evidence at trial. The Victim testified that she mostly felt the knife and "was too shook up to really observe what it looked like." When she held the pocketknife in her hand at trial, however, she testified that it felt like the size of the knife used by Defendant. Although the knife was introduced in evidence, there was no descriptive testimony concerning it other than the fact that it was a "pocketknife."

At trial, Defendant testified that he had been at the Victim's home the night of the alleged occurrence and they had engaged in consensual sex, as they had done on prior occasions. Following submission of the case to the jury, the jury requested and was furnished the pocketknife, along with other exhibits. Thereafter, the jury found Defendant guilty of all charges.

CASE NO. 17392

Defendant contends, in his first point, that the trial court erred in sustaining the jury verdict and sentencing him because the evidence failed to prove the offenses charged. The information alleged that Defendant "displayed a deadly weapon in a threatening manner," in committing rape, sodomy and attempted sodomy, and that he committed armed criminal action "by, with and through the use, assistance and aid of a deadly weapon."

Defendant argues that the State did not charge him with using a "dangerous instrument" as defined in § 556.061(9) and failed to prove that the knife used in the alleged offense qualified as a deadly weapon. He contends that this deficiency requires a reversal.

Section 556.061(10) and MAI-CR 3d 333.00, which was submitted to the jury, defines a deadly weapon as:

... any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles....

Defendant contends that because § 556.061(10) specifically lists a switchblade knife and dagger in defining a "deadly weapon," not every bladed instrument capable of inflicting serious physical injury or death by cutting or stabbing falls within that classification. He reasons that the knife introduced in the instant case is not a deadly weapon because it qualifies neither as a switchblade knife nor a dagger. He notes that § 571.010(17) defines a switchblade knife as a knife with a blade that opens from its handle or sheath through the application of pressure to a button on the handle, by the force of gravity or the application of centrifugal force. In arguing that the knife was not a dagger, he emphasizes § 571.010(9) which defines a "knife" as:

... any dagger, dirk, stiletto, or bladed hand instrument that is readily capable of inflicting serious physical injury or death by cutting or stabbing a person. For purposes of this chapter, "knife" does not include any ordinary pocket knife with no blade more than four inches in length....

Defendant's argument in this point is flawed in several respects.

In his brief, Defendant describes the knife introduced in evidence as a pocketknife with a blade less than four inches in length and points to the fact that § 571.010(9) excludes an instrument of that description from the definition of a "knife." From that he reasons that the knife introduced in evidence is not included in the definition of a "knife" and therefore could not qualify as a dagger.

The definition of "knife" found in § 571.010(9), however, does not purport to define what is or is not a "dangerous instrument" or "deadly weapon" and has no application to statutes using those terms. See State v. Schuler, 838 S.W.2d 19, 20 (Mo.App.1992), and State v. Maynard, 714 S.W.2d 552, 557-558 (Mo.App.1986). The definition of a deadly weapon found in § 556.061(10) does not further define the term "dagger." A dagger has been judicially recognized as a short weapon with a sharp point used for stabbing. State v. Martin, 633 S.W.2d 80, 81 (Mo.1982). There is no limitation on the length of the blade to qualify an instrument as a dagger and therefore a deadly weapon. State v. Maynard, 714 S.W.2d at 558.

The knife itself was introduced in evidence but it was not further described in the testimony other than as a "pocketknife." There was no evidence introduced concerning the dimensions of the knife, the size or length of the blade(s), the manner in which the knife operated, or whether the blades would retract and fold into the body. ⁵ The knife is not filed with this court, and from the trial transcript we are, therefore, unable to conclude that the jury, as a matter of law, would have been prevented from finding that the knife qualified as a switchblade or a dagger, and therefore as a deadly weapon. ⁶ As in State v. Martin, supra, the jury in the instant case found, after seeing the knife in question, that it was a deadly weapon as defined in the jury instruction which followed the definition contained in § 556.061(10).

Defendant, as the appellant, has the burden of demonstrating trial court error. State v. Hooper, 842 S.W.2d 889, 890 (Mo.App.1992); State v. Hensley, 770 S.W.2d 730, 731 (Mo.App.1989). This burden includes supplying the appellate court with a sufficient record to review the point. State v. Shire, 850 S.W.2d 923, 932 (Mo.App.1993). Exhibits are to be filed with the appellate court, Rule 30.05, and those not filed may be considered as immaterial to the issues. Id. Failure to supply a sufficient record to permit determination of the issues presented results in the appellate court being unable to determine if the trial court erred, Arnold v. State of Missouri, 789 S.W.2d 525, 526 (Mo.App.1990), and requires that the point be denied. State v. Shire, 850 S.W.2d at 932. Statements made in Defendant's brief or by counsel during argument concerning the dimensions of the knife which are not otherwise supported by the record are not evidence and cannot form the basis for error. See State v. Williams, 652 S.W.2d 102, 115 (Mo. banc 1983); and State v. Reynolds, 837 S.W.2d 542, 545 (Mo.App.1992).

This point must be denied for another reason as well. Defendant claims there must be proof of the charge set out in the information, and a variance between the proof and the charge is error, citing State v. Carter, 559 S.W.2d 572, 573 (Mo.App.1977). That case also holds, however, that the variance must be prejudicial to the defendant. Id. at 574. Therefore, a variance between the charge and proof does not require a reversal unless it is material to the merits of the case and prejudicial to the defense. State v. Jarrett, 481 S.W.2d 504, 509 (Mo.1972); State v. King, 747 S.W.2d 264, 276 (Mo.App.1988). See also State v. Doolen, 759 S.W.2d 383, 385 (Mo.App.1988).

In the instant case, Defendant does not contend that the alleged variance between the information and proof prejudiced his defense. There is no contention that he was misled concerning the nature or identity of the instrument referred to in the information. In fact, Defendant filed a motion to suppress the very knife which was later introduced at trial. Use of a "dangerous instrument" in the commission of the offenses would authorize convictions for the same class felony and would carry the same punishment as would proof of the use of a "deadly weapon." §§ 566.030 and 566.060. It is conceded by the Defendant that the knife would constitute a "dangerous instrument" pursuant to the definition of that term contained in § 556.061(9). Therefore, Defendant knew that the evidence would include a knife which would qualify as a dangerous instrument and authorize...