State v. Davison, 10097

• Decision Date: 06 January 1977
• Docket Number: No. 10097,10097
• Citation: 545 S.W.2d 723
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Ellis DAVISON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 723

545 S.W.2d 723

STATE of Missouri, Plaintiff-Respondent, v. Robert Ellis DAVISON, Defendant-Appellant.

No. 10097.

Missouri Court of Appeals, Springfield District.

Jan. 6, 1977.

John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Gregory K. Johnson, Springfield, for defendant-appellant.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

BILLINGS, Chief Judge.

Defendant Robert Ellis Davison was convicted of first degree burglary (§ 560.040, RSMo 1969) and sentenced to ten years imprisonment. In this appeal he contends the court abused its discretion in denying his motion for a continuance and committed error in giving the verdict directing instruction. We affirm.

The sufficiency of the evidence to support the jury's verdict is not questioned. Defendant and an accomplice broke into and entered a locked residence in Springfield, Missouri. Upon gaining entry, the two suddenly found themselves confronted by the owner of the house and his brother, both of whom were armed. The accomplice apparently made a successful getaway but defendant was held at gunpoint until authorities arrived and took him into custody.

Prior to the start of the defendant's trial his attorney made an oral motion for a continuance because of the absence of defense witness McDaris, an asserted material witness. The motion was opposed by the state because the witness had not been subpoenaed either in the pending trial or an earlier trial and McDaris' purported testimony would be cumulative to the testimony another defense witness would give. A stipulation was entered into as to what witness McDaris would testify to if present, and it was read to the jury without objection as a part of the defendant's case.

The trial court is vested with discretion in granting or denying a continuance, State v. Cuckovich, 485 S.W.2d 16, 21--22 (Mo. banc 1972), and we are not to interfere with that court's ruling unless there is a showing that it abused its discretion by acting arbitrarily, capriciously, and opporessively. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974); State v. Winters, 525 S.W.2d 417, 423 (Mo.App.1975). Defendant has wholly failed to make such a showing in this case. Furthermore, defendant failed to comply with Rule 25.08, V.A.M.R., governing continuances, and such noncompliance is, of itself, a sufficient ground for denying the continuance. State v. Cuckovih, supra, 485 S.W.2d at 21; State v. Martin, 515 S.W.2d 802, 804 (Mo.App.1974). Last, but not least, is defendant's failure to demonstrate any prejudice by the court's action. The McDaris testimony is practically identical to that given by another defense witness, and by stipulation of the parties the McDaris testimony was read to the jury by the defendant. We find no error.

Defendant complains that the omission of the words 'of the house' following the word 'door' in the third paragraph of MAI-CR 7.20 constitutes reversible error. We do not agree. True, the Supreme Court in adopting the Missouri Approved Criminal Instructions made it clear that giving or failing to give an instruction in violation of Rule 20.02 constitutes error, but paragraph (e) of that rule...