State v. Emory

• Decision Date: 21 September 1982
• Docket Number: No. 44004,44004
• Citation: 643 S.W.2d 24
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald S. EMORY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 24

643 S.W.2d 24

STATE of Missouri, Plaintiff-Respondent, v. Donald S. EMORY, Defendant-Appellant.

No. 44004.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 21, 1982.

Motion for Rehearing and/or

Transfer Denied Nov. 19, 1982.

Application to Transfer Denied

Jan. 17, 1983.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Westfall, Pros. Atty., Clayton, for defendant-appellant.

Ray B. Marglous, Clayton, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of armed criminal action and assault in the first degree and the resultant concurrent ten year sentences. We affirm.

The victim, Donald May, had resided in a house owned and occupied by John McBroom and his wife. McBroom was arrested and placed in jail. His wife left the house to live with her family. May then moved out, and believing that the McBrooms owed him a refund of money he had paid for room and board, took two pieces of furniture. These he sold to a friend, Baker, without telling him how the furniture was acquired. Defendant and his friend, LeMasters, moved into McBroom's home upon which defendant was to perform some work. After his release from jail, McBroom accompanied by defendant and LeMasters went to Baker's home in defendant's pickup truck to retrieve the furniture. They left Baker's home accompanied, possibly involuntarily, by Baker and went to the motel in which May was residing. May testified that the four men, led by McBroom, forcibly entered his motel room. McBroom had a knife; defendant a pistol. McBroom and defendant hit May repeatedly causing substantial bleeding to May's face. May was then taken to the pickup truck and driven south on I-270 some distance from his motel in north St. Louis County. The beating by both McBroom and defendant continued during this ride. In the vicinity of Dougherty Ferry Road and I-270 the truck stopped and May was taken up a hill into the woods by McBroom and defendant. The beating continued and at one point McBroom pointed a rifle at the back of May's head and pulled the trigger. The gun did not discharge at which time defendant threw a bullet to McBroom. LeMaster, and possibly Baker, then prevailed on McBroom not to kill May because of the possibility of fingerprints in the motel room. The group returned to the pickup truck, went to a nearby hospital and left May in the parking lot near the emergency entrance. On numerous occasions throughout the ordeal McBroom threatened to kill May for stealing his furniture. May's testimony was that at one time or another he was beaten with fists, the butt end of the rifle, the handle of the knife, and unopened beer cans, and that he was also kicked in the head.

Defendant's evidence was that he was at the scene but that he did not participate in any assault of May and was not aware of any assault until May and McBroom began fighting while the vehicle was on I-270.

On appeal defendant raises several points. The first is that the trial court erred in giving the verdict-director on the first degree assault charge. That instruction was MAI-CR2d 19.02 utilizing bracket , but omitted the parenthetical insert specifying the means by which the attempt to kill or cause serious injury was made. The state in its brief admits that this constituted a deviation from MAI-CR2d, the prejudicial effect of which is to be judicially determined. It can be noted at the outset that MAI-CR2d 19.02 is not well-suited to submission of an assault of the kind here involved, consisting of a series of assaults utilizing different means which either individually or collectively or in combination create the injury, attempt, or grave risk contemplated by the charge of first degree assault. It may be feasible, although maladroit, to submit each of the various means of attack utilized "or any combination thereof" to meet the means insert of the instruction. It is more difficult to utilize the instruction, which requires inserting only one of the bracketed paragraphs ¹, where the evidence warrants conviction under any one or more of those paragraphs depending upon the jury's finding of intent and the credence it places upon the evidence of each of the multiple attacks. Here, for instance, the evidence of the rifle incident would support conviction under either or depending on the jury's assessment of whether defendant and/or McBroom believed the rifle was loaded or were unaware of whether or not it was loaded. The instruction as drafted required an election here by the prosecution which should not have been required. It is at least arguable that under the circumstances of this case modification of, or deviation from, MAI-CR2d 19.02 was justified. However, we will assume that the failure to specify the means constitutes an improper deviation from the instruction.

We are unable to conclude that such a deviation was prejudicial. Omission of the means would create prejudice only if there was evidence before the jury of a means of assault which would not support a jury finding that that means was utilized in an attempt to kill or cause serious physical injury. With the exception of the unloaded rifle (when used for shooting), all of the "means" testified to were capable of causing death or serious physical injury. State v. Gillespie, 336 S.W.2d 677 (Mo.1960) [1-4]; State v. Wraggs, 496 S.W.2d 38 (Mo.App.1973) [6, 7], cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 113 (1973); State v. Young, 570 S.W.2d 324 (Mo.App.1978) [1, 2]; State v. Laususe, 588 S.W.2d 719 (Mo.App.1979) .

We turn to the rifle incident. A firearm, loaded or unloaded, is a deadly weapon. MAI-CR2d 33.01. Utilization of a firearm by attempting to discharge it into the head of another person is an attempt to kill or cause serious physical injury if the person utilizing the weapon believes it to be loaded. See Sec. 564.011 RSMo 1978. The evidence here established that McBroom repeatedly threatened to kill May. The actions of defendant and McBroom in their merciless beating of May supported that threat. Immediately after the trigger was pulled, defendant tossed a bullet to McBroom. There was evidence that McBroom and defendant were deterred from their efforts to kill May by the entreaties of LeMasters that fingerprints in the motel room would identify May's killers. Under these facts, it was a jury question whether the use of the rifle was an attempt to kill and the instruction required the jury to make that determination. We find no prejudicial error in the omission of the means utilized to conduct the assault.

We also reject defendant's contention that a variance existed between the indictment which charged defendant committed the offense "by means of a gun" and the verdict director which authorized the jury to assess Class A felony punishment if it found the offense was committed by means of "a deadly weapon or dangerous instrument." If, as defendant contends, "dangerous instrument" injects a new issue into the case, it is neither material to the merits of the case nor prejudicial to defendant's rights. State v. Kirk, 510 S.W.2d 196 (Mo.App.1974) [13-15]; State v. Macone, 593 S.W.2d 619 (Mo.App.1980) [6, 7]. Here there was evidence of both a deadly weapon (rifle) and dangerous instruments (knife and beer cans). See MAI-CR2d 33.01.

Defendant's argument that the "serious physical injury" element of the verdict director was unsupported by the evidence because of May's recovery without residual damage...