State v. Ellis

• Decision Date: 18 May 1993
• Docket Number: No. 62226,62226
• Citation: 853 S.W.2d 440
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Bearce ELLIS, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 440

853 S.W.2d 440

STATE of Missouri, Plaintiff/Respondent, v. Bearce ELLIS, Defendant/Appellant.

No. 62226.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 18, 1993.

Arlene Zarembka, Clayton, for defendant/appellant.

Gary M. Gaertner, Jr., Asst. Cir. Atty., St. Louis, for plaintiff/respondent.

CRANE, Judge.

Defendant, Bearce Ellis, was found guilty by a jury of patronizing prostitution in violation of § 567.030 RSMo 1986. The trial court found defendant to be a persistent misdemeanor offender and sentenced him to 180 days in jail. The trial court suspended the execution of sentence after 90 days service, defendant to then be placed on two years unsupervised probation. Defendant appeals from the judgment of the trial court. He asserts the trial court erred in giving the verdict directing instruction because it was at variance with the information and not supported by the evidence. He also challenges certain evidentiary rulings and the constitutionality of the statute. We affirm.

The facts, viewed in the light most favorable to the verdict, reveal that on July 1, 1991, Detective Colvin was engaged in an undercover operation at Carondelet Park with Detective Larry Rose and Detective Sergeant Koehler, all St. Louis city police officers. They were investigating reports of lewd and indecent acts taking place between males in the park. Det. Colvin dropped off Det. Rose near the public bathroom, and he and Koehler drove separately around the park. Det. Colvin saw a blue and light colored van drive through the area three times. After he parked his car, the van pulled up on his passenger side. Defendant, the driver of the van, motioned for him to roll down his window. Defendant asked if he was a cop and he said no. Defendant then asked where he worked and he replied at Ralston Purina. Defendant asked his name and Det. Colvin said "Jamie." Defendant then asked if he was looking for some fun. Det. Colvin said, "I don't know, I guess." Defendant responded, "[I]f you want to go to my place, ... I'll play with your cock until you get off." Defendant also said, "[A]nd I might have a little something for you." Det. Colvin replied, "[O]kay, I'll go with you." Defendant told Det. Colvin to follow him. Det. Colvin signaled Det. Rose that he was leaving and he had a case going. Det. Colvin followed defendant to a house about a mile from the park. Defendant got out of his car, hurried to the house and began to unlock the door. He then turned to Det. Colvin who was sitting in his vehicle and motioned to him. Det. Colvin went into the house while the defendant held the door. Defendant followed Det. Colvin into the living area, touched the side of Det. Colvin's body with his hand, and pulled himself to within six inches of the officer. Defendant then said, "I can't wait to suck your cock." He continued, "I'll give you five dollars if you will let me do it." Det. Colvin placed defendant under arrest at that time.

Det. Colvin and Det. Rose were the sole witnesses for the state. Defendant did not testify or put on any evidence.

I.

For his first point defendant claims that the trial court erred in submitting, over his objection, Instruction No. 5, the verdict director for the crime of patronizing prostitution, because it was at variance with the amended information. The amended information charged a different method of committing the crime than was submitted in the instruction.

Section 567.030 RSMo 1986 states that "[a] person commits the crime of patronizing prostitution if he patronizes prostitution."

Section 567.010(3) RSMo 1986 defines patronizing prostitution in several ways, including:

(b) He gives or agrees to give something of value to another person on an understanding that in return therefor that person or a third person will engage in sexual conduct with him or with another; or

(c) He solicits or requests another person to engage in sexual conduct with him or with another, or to secure a third person to engage in sexual conduct with him or with another, in return for something of value.

"Sexual conduct" is defined in § 567.010(4) to include "deviate sexual intercourse." Section 567.010(4)(b).

The amended information charged defendant with patronizing prostitution as defined in § 567.010(3)(c), alleging that he:

solicited or requested Detective Harvey Colvin to engage in deviate sexual intercourse with defendant in return for money.

On the other hand, Instruction No. 5, the verdict director, submitted that the jury should find defendant guilty only if it found beyond a reasonable doubt:

First, that on July 1, 1991, in the City of St. Louis, State of Missouri, the defendant agreed to give money to Detective Harvey Colvin, and

Second, that defendant did so based on an understanding that Detective Harvey Colvin would engage in deviate sexual intercourse with defendant in return for money....

Those elements track the definition of patronizing prostitution found in § 567.010(3)(b).

Defendant first contends that the trial court erred in giving Instruction No. 5 because a MAI-CR applicable to the charge was available. MAI-CR3d 321.04 provides alternative verdict directing instructions which track each definition for patronizing prostitution. Alternative 3 is the verdict directing instruction that corresponds to § 567.010(3)(c), the particular subsection charged in the amended information. However, the court submitted alternative 1, the verdict directing instruction that corresponds to a charge under § 567.010(3)(b).

Rule 28.02 provides that whenever there is an MAI-CR instruction applicable under the law, that instruction shall be given or used to the exclusion of any other instruction. Rule 28.02(f) provides that giving an instruction in violation of Rule 28 "shall constitute error, its prejudicial effect to be judicially determined."

Defendant argues that the variance between the charge and the instruction was prejudicial to his defense. The primary purpose of an information is to provide notice to the accused so that the accused may prepare an adequate defense to the charges. State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992). " '[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. (quoting State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969)).

If the verdict directing instruction submits a different method of committing the offense than the method charged in the information, there is a variance. However, a variance does not necessarily constitute reversible error. Lee, 841 S.W.2d at 649-650. To justify a reversal, the variance must be material and prejudicial to the rights of the accused. Id. (citing State v. Crossman, 464 S.W.2d 36, 42 (Mo.1971); Rules 23.11 and 29.12; and §§ 545.030 and 546.080 RSMo 1986).

A variance is material when it affects whether an accused received adequate notice from the information. Lee, 841 S.W.2d at 650. A variance is prejudicial when it affects the defendant's ability to adequately defend against the charges presented in the information and given to the jury in the instruction. Id.

In this case we find the variance was neither material nor prejudicial. "Crucial to the resolution of the question is the evidence adduced." Id. at 651. In this case the evidence was that the defendant stated to the undercover officer, "[I]f you want to go to my place, ... I'll play with your cock until you get off, and I might have a little something for you." He told the officer to follow him. When defendant returned home, he motioned for the officer to come in. When he was inside defendant told the officer, "I can't wait to suck your cock.... I'll give you five dollars if you will let me do it."

The amended information charged that defendant solicited or requested the officer to engage in deviate sexual intercourse with defendant in return for money. The jury was instructed to return a verdict of guilty if it found defendant agreed to give the officer money based on an understanding that the officer would engage in deviate sexual intercourse with defendant in return for money. Both the information and the instruction describe the same transaction. Defendant's statement, "I'll give you five dollars if you will let me do it" is both a solicitation or request to engage in the conduct in exchange for money and an agreement to give money based on an understanding that the officer would engage in the conduct.

Defendant argues that he was prejudiced because had he known the case would be submitted on the theory of an agreement based "on an understanding," he "would have cross-examined Det. Colvin to show that there was no agreement or understanding that Det. Colvin would engage in oral sex in return for money." This argument is based on a misconstruction of the statute. The statute is directed to the unilateral activity of the patron. The existence of a crime does not depend upon the understanding or agreement of the person being approached or solicited for sexual acts. In this statute "understanding" means "an understood or acknowledged condition, limitation or provision." Webster's Third New International Dictionary 2490 (1976). The statute applies when the patron gives or agrees to give money upon the condition that certain sexual acts will be conducted in return. Accordingly, defendant was not prejudiced by not cross-examining the undercover detective regarding the detective's understanding that he would engage in sexual conduct.

Since there was no prejudice, the trial court's error in failing to give the appropriate alternative under MAI-CR3d 321.04 is not reversible error. Point one is denied.

II.

For his second point defendant asserts that Instruction No. 5, the verdict directing instruction, was not supported by the evidence because there was no showing "that there was an understanding between Detective Harvey Colvin and defendant...