State v. Cox, WD
| Decision Date | 15 October 1991 |
| Docket Number | No. WD,WD |
| Citation | 820 S.W.2d 532 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Timothy L. COX, Defendant-Appellant. 43676. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Kansas City, for defendant-appellant.
William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before BERREY, P.J., and BRECKENRIDGE, and KENNETH W. SHRUM, JJ.
The defendant Timothy L. Cox appeals a judgment, entered pursuant to jury verdicts, sentencing him to 12 years for first degree assault (Count I), 20 years for armed criminal action (Count II), and 10 years for kidnapping (Count III). 1 The appeal raises two questions:
(1) Was the defendant prejudiced by the trial court's use, in the verdict directing instructions, of disjunctive language drawn from MAI-CR3d 304.04, modified according to Notes on Use 7(c), when the evidence showed that other persons committed the elements of each crime and the defendant's involvement was that he acted with the others or aided them in the commission of the crimes?
(2) Was Count III of the amended information insufficient to charge kidnapping because it omitted the word physical from the final clause of the approved charge, MACH-CR 19.20, "for the purpose of inflicting physical injury on [the victim]"?
Although the challenged instructions and information deviate from the approved forms, we conclude the defendant suffered no prejudice from those deviations, and we affirm the judgment of the trial court.
From the evidence favorable to the verdicts and relevant to the issues on appeal, we construct the following factual summary.
The defendant owed almost $5,000 to the victim, James Harris. The defendant had trouble repaying the money, and, on at least one occasion, the defendant and the victim argued about the debt.
Jack McWhorter was an acquaintance of the defendant. McWhorter had a reputation as a violent man, and the defendant said he feared him "because of the things Jack had told me he had done--killing people and blowing up things." On numerous occasions McWhorter told the defendant he could take care of his problem with the victim but that he needed $1,500. A week before the crimes occurred, McWhorter told the defendant "he was broke and he was going to take care of my problem." The defendant told McWhorter "to take care of my problem any way he wanted."
Early in the afternoon of Sunday, July 23, 1989, McWhorter and James Wheeler arrived at the defendant's home. Defendant, his wife, and their son were present. At approximately 2 p.m., the victim arrived. The victim testified he and the defendant had arranged a meeting on that day at which the defendant would pay the victim what he owed. When the victim arrived, he did not see McWhorter who was in the bathroom. Shortly after the victim's arrival, the defendant's wife and son departed for a baseball tournament.
Within a short time, McWhorter came up from behind the victim and put a .25 caliber automatic pistol to his head. The defendant watched as Wheeler and McWhorter taped the victim's hands behind his back, his arms across his shoulders, and his legs together with duct tape from the defendant's kitchen. McWhorter forced the victim to lie on the floor and kicked him twice in the head. McWhorter and Wheeler threatened and otherwise verbally abused the victim. At one point, Wheeler left the house and returned with a .38 caliber revolver.
The victim pleaded with the defendant to help him. The defendant replied that he was afraid for his family and that "he had been told by people that I [the victim] was threatening to do something to him if he didn't pay back my money."
McWhorter asked the defendant if he had any gasoline; the defendant replied he thought he had "half a can." McWhorter picked up a set of keys from the kitchen table and asked who they belonged to. The defendant said they were the victim's.
Wheeler and McWhorter dragged the victim from the house and placed him in the trunk of his own car. When McWhorter saw that the victim had freed his hands from the tape, he shot him four times and shut the trunk lid. McWhorter and Wheeler then drove off in the victim's car. The defendant had obtained a gas can, but, when he witnessed the shooting, he dropped it. He then followed the victim's car, driving Wheeler's car.
Some distance from the defendant's house, the victim, still alive and apparently free of his duct tape shackles, was able to open his trunk lid enough to see a car following closely behind. When he let the lid fly up to alert the driver of the following car, his car stopped. When he realized the defendant was driving the car behind, the victim jumped out of his car and ran into the woods.
McWhorter, Wheeler, and the defendant ran after the victim. The defendant ran past the victim but did not see him; McWhorter and Wheeler located the victim and each shot him twice. The trio then departed in the separate vehicles and reconvened along a gravel road. McWhorter asked the defendant for the gasoline can; when the defendant said he did not have it, McWhorter attempted to burn the victim's car by igniting a box of matches in it. He succeeded in burning a hole in the front seat.
In the meantime, the victim emerged from the woods and summoned help. He advised authorities that the defendant was one of his assailants. After he was arrested, the defendant gave officers two statements that were read at trial.
The victim spent approximately three weeks in a hospital for treatment of his eight gunshot wounds. He suffered permanent, serious disability as a result of the shootings.
In his first three points on appeal the defendant contends the trial court submitted three erroneous verdict directing instructions because it instructed on accessorial liability in the disjunctive. 2 The defendant argues, and the state agrees, that the evidence at trial supported verdict directing instructions incorporating MAI-CR3d 304.04, modified by Notes on Use 7(a) rather than Notes on Use 7(c). 3 The defendant asserts that use of the wrong variation of MAI-CR3d 304.04 was prejudicial to his defense because there was no evidence that he committed the elements of any of the three offenses and, therefore, the instructions, as submitted, permitted his conviction by less than a unanimous verdict, i.e., some jurors might have believed McWhorter committed the elements of the crimes, some might have believed Wheeler did, and some might have believed the defendant did.
The state, arguing that the defendant suffered no prejudice by the use of the wrong variation of MAI-CR3d 304.04, calls our attention to the following comment at the end of Notes on Use 7:
NOTE: Any variation in ascribing the elements of an offense to the defendant or to the other person or persons or any variation in the selection of alternatives in the paragraph following "then you are instructed that [name of offense ] has occurred ..." shall not be deemed reversible error in the absence of any prejudice.
Several recent opinions reiterate the principle of the above-quoted note, that use of the wrong alternative from Notes on Use 7, although error, does not require reversal unless the error resulted in prejudice to the defense. See, e.g., State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989); State v. Franks, 793 S.W.2d 543 (Mo.App.1990); State v. Cannon, 744 S.W.2d 820 (Mo.App.1987); and State v. Van Black, 726 S.W.2d 429 (Mo.App.1987).
The defendant relies on State v. Sparks, 701 S.W.2d 731 (Mo.App.1985), and State v. Scott, 689 S.W.2d 758 (Mo.App.1985), to support his claim that the use of disjunctive language in the instructions was prejudicially erroneous. However, Sparks and Scott do not aid the defendant on the issue of prejudice because each involved facts, not present in the case before us, which tipped the scales toward a finding of prejudice.
In Sparks, all the evidence showed that Glasby (a co-defendant) shot, killed, and robbed the victim and the defendant only aided Glasby, but the instruction hypothesized that "the defendant or Keith Glasby" killed the victim. The court based its holding that the defendant was prejudiced on more than its conclusion that the instruction lacked evidentiary support. Additionally, the prosecutor's final argument can be understood to invite speculation that, if Glasby, (who did not testify) had testified at trial, he would have accused defendant of shooting victim. We therefore cannot say there was no prejudice to the defendant.
Id. at 760. The record in the case before us discloses no such misleading closing argument.
In Scott, the defendant was convicted of receiving stolen property, a violation of RSMo § 570.080. The verdict directing instruction allowed the jury to find the defendant guilty if "the defendant, or others disposed of four (4) pregnant sows." In reversing the conviction, the court of appeals identified two sources of prejudice: a lack of evidence that the defendant "disposed" of the sows and the failure of the jury instruction to identify the "others" when their identities were clearly shown by the evidence. 701 S.W.2d at 734.
Of more recent vintage and more on point is Van Black, 726 S.W.2d 429, a case in which the defendant was convicted of arson. The defendant hired Danny Warden to burn his house for a share of the insurance proceeds. The defendant was not in the area when Warden set the fire, using gasoline and an ignition device the defendant provided. On appeal, the defendant contended the use of disjunctive language in the verdict directing instruction constituted reversible error. The court of appeals affirmed the conviction and stated:
Under the verdict directing instruction, the defendant could be found guilty if he caused the...
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