State v. Darden

• Decision Date: 16 September 2008
• Docket Number: No. WD 68274.,WD 68274.
• Citation: 263 S.W.3d 760
• Parties: STATE of Missouri, Respondent, v. James Evan DARDEN, Appellant.
• Court: Missouri Court of Appeals

263 S.W.3d 760

STATE of Missouri, Respondent, v. James Evan DARDEN, Appellant.

No. WD 68274.

Missouri Court of Appeals, Western District.

September 16, 2008.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Richard A. Starnes, Esq., Jefferson City, MO, for Respondent.

Nancy A. McKerrow, Esq., Columbia, MO, for Appellant.

Before JOSEPH M. ELLIS, P.J., LISA W. HARDWICK and JOSEPH P. DANDURAND, JJ.

JOSEPH P. DANDURAND, Judge.

James Darden appeals his conviction for domestic assault in the second degree and his sentence of three years imprisonment. He presents three claims of plain error: (1) the verdict director and First Amended Information have a fatal variance; (2) it was error to charge and submit domestic assault in the second degree as opposed to domestic assault in the third degree; and (3) it was error to sentence him as a persistent misdemeanor offender. The points are denied, and the judgment is affirmed.

Facts

As the sufficiency of the evidence is not an issue on appeal, a brief statement of facts will be given with further facts set forth as necessary. James Darden was involved in a romantic relationship with the victim (Victim) in this case; they resided together. In February 2006, a conflict ensued between the two that led to a physical confrontation. Law enforcement determined that Mr. Darden was the aggressor.

Mr. Darden was charged by information with domestic assault in the second degree. A First Amended Information was filed charging him as a persistent misdemeanor offender. The charge went to a trial by jury in October 2006. Mr. Darden was found guilty and sentenced to three years imprisonment. This appeal followed.

Standard of Review

Mr. Darden concedes he failed to properly preserve the errors identified in his points on appeal. He requests plain error review. "The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review." State v. Beggs, 186 S.W.3d 306, 311 (Mo.App. W.D.2005). "In determining whether to exercise its discretion under plain error review, the appellate court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed a `plain' error, which resulted in manifest injustice or a miscarriage of justice." Id. (citation and quotation marks omitted). "Plain error for purposes of Rule 30.20 is error that is evident, obvious, and clear." Id.

Plain error review involves two steps. "First, the court must determine whether the trial court committed an evident obvious and clear error, which affected the substantial rights of the appellant." Id. "[I]f obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom." Id. at 311-12.

Point I

In his first point on appeal, Mr. Darden claims the trial court plainly erred in giving the verdict director for domestic assault in the second degree to the jury and in accepting the jury's verdict of guilty on that charge. He asserts there was a "fatal variance" between the First Amended Felony Information and the verdict director. He states that the information charged him with assault and alleged that he attempted to cause physical injury to Victim by strangulation. Mr. Darden further states that the verdict director permitted the jury to find him guilty if it believed beyond a reasonable doubt that he attempted to cause physical injury to Victim by strangulation or repeatedly punching her about the head. He argues he had no notice that he would be defending against the allegation that he punched Victim rather than strangled her, or that the jury would be permitted to find him guilty of a crime other that the one charged in the First Amended Information.

"[I]nstructional error seldom constitutes plain error, which requires a defendant to demonstrate more than mere prejudice." State v. Thomas, 75 S.W.3d 788, 791 (Mo.App. E.D.2002). "For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict." Id. "In determining whether the misdirection likely affected the jury's verdict, an appellate court will be more inclined to reverse in cases where the erroneous instruction did not merely allow a wrong word or some other ambiguity to exist, but excused the State from its burden of proof on a contested element of the crime." Id.

A defendant cannot be charged with one form of an offense and convicted of another. State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992). "A variance between the information and instruction is `fatal' because it prevents the defendant from receiving adequate notice of the crime with which he is charged." Id. "[W]hen a crime may be committed by any of several methods, ... the method or methods submitted in the verdict directing instruction must be among those alleged in the information." Id. (citation and quotation marks omitted). "The reason for the rule ... is to foster and protect the primary purpose of the information, that of providing notice to the accused so that the accused may prepare an adequate defense against the charges brought." Id.

"A variance alone is not conclusive to the question of whether there is reversible error." Id. "A variance is not fatal, and will not require reversal, unless it submits a new and distinct offense from that with which defendant was charged." State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004) (citation and quotation marks omitted). "A variance must be material, and defendant must be prejudiced, to warrant reversal." Id. "Variances are material when they affect whether the accused received adequate notice; variances are prejudicial when they affect the defendant's ability to defend against the charges." Id. (citation and quotation marks omitted). "[U]nless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information contained the phrase ..., he should not be entitled to relief on account of the variance." Lee, 841 S.W.2d at 650 (citation and quotation marks omitted). "A variance is prejudicial only if it affects the appellant's ability adequately to defend against the charges presented in the information and given to the jury in the instructions." Id.

Both the information and verdict director identified the same offense: second degree domestic assault. That charge prohibits the attempt to cause physical injury "by any means," including, but not limited to, strangulation. § 565.073.1(1). Thus, the verdict director did not submit a new and distinct offense. In addition, the First Amended Information contained a second count that was subsequently dismissed by nolle pros. The second count charged the offense of stalking, including that Mr. Darden harassed Victim by "grabbing her by the hair, striking her, and choking her." Mr. Darden's defense at trial was self-defense. Given this, his ability to defend against the charges presented was not affected by the variance.

Mr. Darden argues that the language added to the verdict director allowed a conviction where there not would have been one because the evidence was not sufficient as to the allegation that he strangled Victim. A law enforcement officer testified at trial that Mr. Darden told him that he had his hands "around that bitch's neck." This is clearly evidence that Victim was strangled.

State v. Edsall, 781 S.W.2d 561 (Mo.App. S.D.1989), cited by Mr. Darden, is distinguishable. In that case, the information alleged that the defendant caused physical injury to the victim. Id. at 562. The evidence did not show that victim sustained a physical injury, except perhaps from a fall not caused by the defendant. Id. at 563. The court concluded the State failed to demonstrate what was alleged in the information. Id. at 564-65. The claim of error was not brought pursuant to plain error review. Unlike the case sub judice, the information in Edsall in no way conformed with the evidence presented.

Mr. Darden has failed to establish that the variance was material or prejudicial. He has not demonstrated manifest injustice or a miscarriage of justice. His claim does not rise to the level of plain error.

The point is denied.

Point II

In his second point relied on, Mr. Darden claims the trial court plainly erred in overruling his motion for judgment of acquittal at the close of all of the evidence, in accepting the jury's verdict of guilty to domestic assault in the second degree, and in sentencing him for that offense. He asserts that domestic assault in the second degree, as charged, and domestic assault in the third degree are identical offenses. He concludes that the rule of lenity requires that a criminal defendant be given the benefit of a lesser penalty where there is a statutory ambiguity allowing for more than one interpretation.

Mr. Darden notes that the precise issue he presents in his second point was decided adversely to him in State v. Blackburn, 168 S.W.3d 571 (Mo.App. S.D.2005). He asserts that the Southern District's analysis is flawed in Blackburn because it is based on an incorrect statement of the law of attempts. He cites, in part, State v. Whalen, 49 S.W.3d 181, 186 (Mo. banc 2001). He concludes that Blackburn is "wrong because in reaching its decision, the Court ignored the specific intent required whenever an attempt is charged." In State v. Ondo, 232 S.W.3d 622 (Mo.App. S.D.2007), the Southern District stated:

Defendant urges us to reconsider our decision in State v. Blackburn, 168 S.W.3d 571 (Mo.App.2005), in light of the Supreme Court's decision in State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001). In Blackburn, we applied the rule of lenity to sections 565.073 and 565.074, and...