State v. Green, WD

• Decision Date: 04 June 1991
• Docket Number: No. WD,WD
• Citation: 812 S.W.2d 779
• Parties: STATE of Missouri, Respondent, v. Keith D. GREEN, Appellant. 43506.
• Court: Missouri Court of Appeals

Page 779

812 S.W.2d 779

STATE of Missouri, Respondent, v. Keith D. GREEN, Appellant.

No. WD 43506.

Missouri Court of Appeals Western District.

June 4, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 30, 1991.

Application to Transfer Denied Sept. 10, 1991.

T. Jefferson Stephens, Grant City, for appellant.

William L. Webster, Atty. Gen., Geoffrey W. Preckshot, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., and SHANGLER, GAITAN and FENNER, JJ.

GAITAN, Judge.

Appellant was convicted by a jury of violating Mo.Rev.Stat. § 569.170 (1986), burglary in the second degree (Count I), Mo.Rev.Stat. § 570.030 (1986), stealing over one hundred and fifty dollars (Count II), and Mo.Rev.Stat. § 569.120 (1986), property damage in the second degree (Count III).

Ten points relied on are presented by appellant's brief. While each of these points contains unique arguments, they fall into four general categories: (I) alleged prejudice to appellant arising from the amended information; (II) objections to evidence presented at trial; (III) alleged flaws in the instructions submitted to the jury; and (IV) denial of appellant's motion for acquittal at the close of all evidence. For ease of analysis, individual points will be handled under these more general classifications. The judgment of the trial court is affirmed.

On September 7, 1989, the appellant and a friend, Brian Bruner, consumed a large amount of alcohol at the Sports Page Bar in Maryville, Missouri. Sometime after 1:30 a.m. on September 7th, appellant and Bruner drove to the James Edward Gray American Legion Post, located in Maryville. Bruner who was driving, parked his vehicle in the lot of a nursing home across the street. Upon approaching the Post, they found the building closed, locked, and unoccupied. Looking in through a window, they noticed a bar inside and appellant suggested that they "look inside." Appellant then used a brick to break a window. Rather than entering immediately, appellant and Bruner withdrew across the street to see if any alarm had been sounded or if police would arrive. After waiting ten minutes, appellant and Bruner entered the Post through the window appellant had broken.

Once inside, appellant and Bruner broke down doors and internal partitions in an effort to reach the bar. Entry to the bar was gained and appellant and Bruner noticed beer, hard liquor, and other items, and at this point, decided to steal these items. Using a two wheeled dolly, appellant and Bruner loaded thirteen cases of beer into Bruner's car. Also stolen were two bottles of whiskey, pool balls, a lighted beer sign, ten dollars in cash, tools, and a fire extinguisher. Both men then left the Post and returned to Northwest Missouri State University where they were students.

The burglary was detected by a Maryville Public Safety Officer at 4:00 a.m. that same morning. Numerous tire tracks and footprints were left outside the Post and footprints were discovered inside. These tracks and prints were photographed by police. The Commander of the Post, Coeta Watkins, was contacted immediately upon discovery of the break-in and supplied police with a list of the missing items.

On September 11, 1989, Officer Roy Gibbs of the Northeast Missouri State University Public Safety Department entered appellant's dormitory room in response to a reported violation of the University's prohibition against the possession of alcohol. A search of the room disclosed beer in the refrigerator and twelve cases of beer under appellant's bed.

On September 12, 1989, Officer David Lin of the Maryville Public Safety Department, aware of the large quantity of alcohol found in appellant's dormitory room, contacted appellant at the University. Shortly thereafter, Officer Lin read appellant his Miranda rights and transported him to the Maryville Public Safety Department. While at the Department, appellant gave a written statement implicating himself and Brian Bruner in the burglary of the James Edward Gray American Legion Post. This statement was introduced into evidence by the state and accepted by the court.

Appellant was charged by information on September 13, 1989, with burglary in the second degree, stealing over one hundred and fifty dollars, and property damage in the second degree. After a change of venue from Nodaway County to Gentry County, the case came before the jury on April 30, 1990. On the day of trial the court allowed the state to amend the information to allege that appellant should be sentenced as a prior offender under Mo.Rev.Stat. § 558.016 (1986), based on a previous guilty plea in Illinois for the felony of forgery. The state produced, and the court accepted, a certified copy of conviction from the State of Illinois authenticating this prior felony conviction.

The appellant chose not to present any evidence at trial. Thus, based on the state's case-in-chief, the jury found appellant guilty on all three counts. Having found appellant to be a prior offender under § 558.016, the court sentenced appellant to two five year terms for burglary in the second degree and felony stealing to run consecutively, and thirty days in jail and a $150 fine for misdemeanor property damage.

I.

Appellant alleges that the trial court erred in allowing the information to be amended on the day of trial. The information was amended to allege that appellant should be sentenced as a "prior offender" as defined in Mo.Rev.Stat. § 558.016.2 (1986). The nature of appellant's allegation of error is two fold: (1) that the amended information did not contain "all essential facts warranting a finding the defendant is a prior offender;" Mo.Rev.Stat. § 558.021.1(1) (1986); and (2) that he was prejudiced by the "prior offender" amendment on the day of trial because the thirty day time limitation contained in Rule 32.07 had expired, thus depriving him of the ability to change the judge who would now sentence him as a "prior offender." Validity of Amending the Information to Sentence

Appellant as a "Prior Offender"

Other than the misdemeanor conviction, appellant was convicted by the jury of violating Mo.Rev.Stat. § 569.170 (1986) (burglary in the second degree), and Mo.Rev.Stat. § 570.030 (1986) (stealing over one-hundred and fifty dollars). Both offenses are class "C" felonies. Appellant attacks the validity of the amended information under Mo.Rev.Stat. § 558.021.1(1) (1986). ¹ Because the amended information omitted the dates and length of appellant's prior term in a penal institution, appellant argues that the trial court did not have the "essential facts" necessary to sentence him as a "prior offender." While it is true that § 558.021.1(1) requires the court to have the "essential facts" at its disposal to sentence a defendant as a "prior offender," it does not enumerate those "essential facts." These facts are, instead, found in the controlling sentence enhancement statutes.

The duration of sentences for felony convictions are set out in Mo.Rev.Stat. § 558.011 (1986). These sentences, however, can be enhanced where the defendant is a repeat offender. Mo.Rev.Stat. § 558.016 (1986), allows the court to give "extended terms" of imprisonment for criminal defendants who have "pleaded guilty to or been found guilty of" at least one prior felony or two or more class "A" or "B" misdemeanors of specified types. Specifically relevant to this case, § 558.016.1 states that the court may sentence a "prior offender" to the maximum allowable sentence under § 558.011 or the statute governing the offense. Mo.Rev.Stat. § 558.019 (Supp.1988), is also a form of sentence enhancement and sets minimum prison terms for repeat offenders charged with class "A" and "B" felonies. Mo.Rev.Stat. § 558.019.2 (Supp.1988). Because appellant was charged with, and convicted of, only class "C" felonies and misdemeanors, § 558.019 is inapplicable. This distinction between the sentence enhancement statutes is reflected in the controlling Missouri Approved Charge, 2.30 (1989 Revision). Notes on Use, paragraph 3, MACH-Cr 2.30 (1989 Revision), explains that a parenthetical paragraph stating the dates and duration of prior incarceration is only to be included when § 558.019 is applicable, that is when the "defendant is presently charged with ... a class A or B felony...." The Notes on Use and the controlling statute direct us to the conclusion that § 558.019 is inapplicable in the present case. Therefore, the "necessary facts" to sentence appellant as a prior offender are found only in § 558.016.

To sentence appellant as a "prior offender," § 558.016 requires only that the defendant previously "pleaded guilty to or has been found guilty of one felony." The statute does not require that this prior felony resulted in incarceration as does the companion statute, § 558.019. Appellant argues that the amended information was invalid because it did not contain the dates or duration of appellant's previous incarceration. Appellant's argument seems to be founded upon a blurring or confusion of the "necessary facts" required by the respective sentence enhancement statutes. The amended information, that alleged appellant's previous guilty plea to the felony of forgery, contained all the "necessary facts" required by § 558.016 and was valid.

Prejudice from Amending the Information

Appellant further alleges that he was prejudiced by the amendment to the information on the day of trial in that it deprived him of the ability to change the judge who would now sentence him as a "prior offender." See Mo.Rev.Stat. § 558.016.1 (1986). Rule 32.07, entitled "Misdemeanors or Felonies--Change of Judge--Procedure," allows a criminal defendant thirty days after arraignment in which to file a motion to change judges. Rule 23.08, however, which sets up the procedures for amending an information, allows such amendments to be made "any time before verdict...." Thus, the situation can arise, as it did in this case, where...