State v. Collis

Decision Date16 March 1993
Docket NumberNos. WD,s. WD
Citation849 S.W.2d 660
PartiesSTATE of Missouri, Respondent, v. Dennis COLLIS, Appellant. Dennis COLLIS, Appellant, v. STATE of Missouri, Respondent. 44275, 46016.
CourtMissouri Court of Appeals

J. Gregory Mermelstein, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and BERREY and SPINDEN, JJ.

BERREY, Judge.

Appellant appeals his conviction in this jury-tried case in which he was convicted of sodomy, rape, deviate sexual assault, and sexual assault in the first degree. Appellant was sentenced to thirteen years on the sodomy charge and twelve years on the rape charge: the sentences to run consecutively. He was sentenced to six years on the deviate sexual assault and six years on the sexual assault to run concurrently with the rape and sodomy sentences. Appellant also appeals the subsequent denial of his Rule 29.15 motion for postconviction relief.

We set forth the facts in the light most favorable to the verdict. The victim, J.L., is the step-daughter of appellant and was 16 years old at the time of trial. Her stepfather and her mother were divorced when J.L. was about eight years old. Following the divorce, J.L. lived with her mother and J.L.'s brother, D.C., lived with appellant. J.L. visited her stepfather every other weekend either at a home owned by appellant's mother in Schuyler County, Missouri, or in appellant's trailer. Appellant slept in a bed with J.L., and D.C. slept in another room. Appellant began having oral sex with J.L. when she was about eight. When J.L. was about eleven, appellant began having sexual intercourse with her. This sexual activity occurred nearly every time J.L. visited appellant.

In May 1987, when J.L. was twelve years old, she visited appellant in Schuyler County and he had oral sex and sexual intercourse with her. In May 1989, appellant again had oral sex and sexual intercourse with J.L. during her visit to Schuyler County.

J.L.'s cousin, L.G., observed appellant engaging in sexual acts with J.L. on three separate occasions. On one such occasion, L.G. saw appellant touching J.L.'s "private area." Appellant saw her and threatened her with "living hell" if she told anyone. Vickie Whitlow, a DFS employee, and Linda Barrett, a counselor, interviewed J.L. and she told them appellant had been having sexual contact with her since she was eight years old.

At trial, appellant testified in his own behalf, denying J.L.'s charges and testifying that J.L. had never spent a night with him. This was disputed on rebuttal by J.L.'s brother, D.C., who testified that every other week J.L. spent the night with appellant. He also testified that there were two bedrooms in appellant's trailer, his and appellant's, and that he never saw J.L. sleep on the couch by herself. Junior Richman testified that on several occasions he saw J.L. riding in an automobile with appellant and, on about a dozen occasions, he saw her enter appellant's trailer.

On appeal, appellant raises ten points of error and mixes his complaints between the appeal from the conviction and the appeal from the findings on his 29.15 motion. This court has attempted to sort out the various points and present them in a systematic order.

ACTIONS OF THE TRIAL COURT

Appellant first complains that the trial court committed plain error in permitting Whitlow and Barrett to testify concerning statements made to them by J.L. because their testimony was inadmissable hearsay and improperly bolstered J.L.'s testimony.

Under Rule 30.20 we have discretion to invoke plain error. We use the rule sparingly and limit its application to those cases where there is a strong, clear demonstration of manifest injustice or miscarriage of justice. State v. Hubbard, 659 S.W.2d 551, 555-56 (Mo.App.1983). Such is not the situation in the instant case. The corroboration of J.L.'s complaints comes from the witness L.G. not from the statements J.L. made to Whitlow and Barrett. The evidence of guilt is overwhelming and there is no injustice or miscarriage of justice in not applying the rule. State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982).

The burden is on appellant to prove the alleged error amounted to manifest injustice. State v. Sanders, 628 S.W.2d 390, 392 (Mo.App.1982). Appellant has failed to meet this burden. Appellant's Point I is denied.

Appellant's Point II is related to his 29.15 appeal and is addressed in Part II below. Appellant's Point III alleges trial court error in denying his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to establish the sodomy was committed by "using forcible compulsion," as stated in the information.

Count I of the information states:

On or about the 16th day of May, 1987 in said County of Schuyler, State of Missouri, the Defendant did then and there wilfully, maliciously, intentionally and with specific criminal intent commit the crime of sodomy, a Class B felony, in violation of Section 566.060 RSMo.... in that said Dennis Collis did have deviate sexual intercourse with a person, under the age of fourteen years, not being married to said person without her consent and using forcible compulsion....

"Using forcible compulsion" is surplus language. It is not necessary that the state prove the surplus language. State v. Horne, 778 S.W.2d 756, 757 (Mo.App.1989).

Appellant was charged under § 566.060(3), RSMo Cum.Supp.1992, which reads, "A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old." The complained-of phrase is contained in § 566.060(1). Forcible sodomy, however, is a class A felony and appellant was charged with the class B felony of sodomy. Because J.L. was less than fourteen years old, the state properly used § 566.060(3) and unartfully added inapplicable language. The verdict director, Instruction No. 7, properly set out the elements of the offense:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about May 16th, 1987, in the County of Schuyler, State of Missouri, the Defendant placed his penis within the mouth of [J.L.] to have her perform fellatio upon him, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that [J.L.] was then less than fourteen years old, and

Fourth, that Defendant was not then married to [J.L.],

then you will find the Defendant guilty under Count I of sodomy.

It is not necessary for the state to either allege or prove surplus language. Appellant's Point III is denied.

Appellant's Point IV mirrors his Point III by alleging the trial court plainly erred in sustaining the jury verdict as to Count I because the case submitted to the jury, sodomy with a child under fourteen, was fatally in variance with the crime charged in the information, forcible sodomy. Again, this claim was not preserved for appellate review. It is raised for the first time in this appeal.

It is true that surplusage was contained in the information. It is surplusage under Horne, and it should be ignored. This surplus language did not cause the jury to convict appellant. Such surplus language did not charge a new and distinct offense than that submitted to the jury and, hence, it is not fatally in variance with the case submitted to the jury. State v. Brigman, 784 S.W.2d 217, 222 (Mo.App.1989).

Instruction No. 7 did not submit an offense to the jury that was new and distinct Appellant alleges in Point V that by trying him on an information that contained two separate offenses he was unable to prepare a defense because he could not know which offense he was charged with. Because appellant did not raise this issue at trial or in his motion for a new trial, appellant is evidently proceeding under plain error on this point, although his point relied on is silent in this respect.

from the offense charged. Both the information and the instruction charged appellant with a class B felony, not the class A felony of forcible sodomy. Appellant's Point IV is denied.

When the issue of sufficiency of the information is raised for the first time after the verdict, the information will be deemed insufficient only if it is so defective that:

(1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced. In either event, a defendant will not be entitled to relief based on a post-verdict claim that the information ... is insufficient unless the defendant demonstrates actual prejudice.

State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1993). The information contained the elements of the offense of sodomy essential to apprise appellant of the offense and enable him to meet the charge and bar further prosecution.

Appellant is not prejudiced by an unartfully drafted information. Rule 23.11 provides that "no information shall be invalid because of any defect therein which does not prejudice the substantial rights of the defendant." We are unable to find that appellant has been prejudiced by the language of the information. We will reverse only if the "information is so defective that by no reasonable construction can it be read to charge the defendant with the offense for which he was convicted." Puckett v. State, 782 S.W.2d 454, 455 (Mo.App.1990).

Clearly the information properly charged appellant with sodomy of a child under the age of fourteen to whom he is not married, a class B felony. The surplusage does not change this charge. Further, the information is sufficient to constitute a bar to another prosecution for the same offense. State v. Westrich, 800 S.W.2d 78, 79 (Mo.App.1990). Point V is denied.

In Point VI, appellant alleges that the trial court committed...

To continue reading

Request your trial
18 cases
  • State v. Howard, s. 18265
    • United States
    • Missouri Court of Appeals
    • 28 d2 Fevereiro d2 1995
    ...to those cases where there is a strong, clear demonstration of manifest injustice or miscarriage of justice. State v. Collis, 849 S.W.2d 660, 663 (Mo.App.1993). Instructional error is rarely plain error. State v. Brokus, 858 S.W.2d 298, 302 (Mo.App.1993). More than mere prejudice must be sh......
  • State v. Taylor
    • United States
    • Missouri Court of Appeals
    • 8 d2 Novembro d2 1994
    ... ... The rationale of the hearsay rule is inapplicable to this situation. Therefore, the statement by Detective Vickers cannot be excluded on the basis of a hearsay objection. See California v. Green, 399 U.S. 149, 157-158, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489, 495-497 (1970); State v. Collis, ... 849 S.W.2d 660 (Mo.App.W.D.1993). Point denied ...         The defendant's final point on appeal is that the trial court erred in failing to grant a mistrial when the state failed to provide material evidence admitted during the trial and requested by the jury during its ... ...
  • Griffith v. Larkins
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 10 d2 Abril d2 2012
    ...(Mo. App. 1993).Defendant correctly notes that a witness not previously disclosed may be called to rebut testimony. State v. Collis, 849 S.W.2d 660, 665 (Mo. App. 1993). However, the trial court must determine whether the potential witnesses are correctly categorized as rebuttal witnesses. ......
  • State v. Belton
    • United States
    • Missouri Court of Appeals
    • 27 d2 Maio d2 1997
    ...to those cases where there is a strong, clear demonstration of manifest injustice or miscarriage of justice. State v. Collis, 849 S.W.2d 660, 663 (Mo.App.1993). The determination of whether plain error exists must be based on a consideration of the facts and circumstances of each case. Stat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT