State v. King, s. 51953
| Decision Date | 26 January 1988 |
| Docket Number | Nos. 51953,51954,51955,s. 51953 |
| Citation | 747 S.W.2d 264 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Morise KING, et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for defendants-appellants.
William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, George Westfall, Pros. Atty., Madeleine Birmingham, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
This appeal stems from incidents related to an April 1985 election in the City of Pagedale. In that contest defendant Mary Hall ran for mayor; Claibourne King, relative of defendants Morise and Moses King, and Fred Smith ran for 2 of 3 available aldermanic positions. All three candidates ran on the same ticket. Hall and the defendants, the King brothers (Moses and Morise), were interested in seeing this slate of candidates get elected. In order to bolster their chances defendants sought advice on running a campaign and were urged to solicit absentee ballots. Hall obtained blank applications for absentee ballots from the Board of Election Commissioners and she and the Kings set out on a drive to register voters and recruit absentee voters. The plan included door-to-door and sidewalk solicitation of absentee voters. Several voters signed applications for absentee ballots without knowing the nature of what they were signing. Each application had boxes that were to be marked to indicate the reason the voter was requesting to vote by absentee ballot. Acceptable reasons are enumerated in Section 115.277 1 and include anticipated absence, illness or disability on election day. Each application signed by the voters who testified at trial had one of the boxes marked but each of the voters denied making any such mark; nor did they indicate to anyone that they expected to be absent, ill or disabled on election day. When the voters received their ballots, the defendants would visit the voter at their home to instruct them on the use of the ballot. After noting tha a large number of applications indicated that ballots were to be mailed to the home of the candidate and not to the home of the voter, an employee at the Board of Election Commissioners contacted the prosecuting attorney's office. Subsequently, charges were brought against the defendants.
On March 19, 1986 the defendants were tried by jury in the Circuit Court of St. Louis County on several counts of election fraud. Morise and Moses King were convicted under Count IX of the indictment charging the unlawful assistance of voter Annie Allen in violation of Section 115.291, which makes such assistance a Class One election offense. Each of the King brothers were fined $2,500 in accordance with Section 115.631. Mary Hall was convicted under Counts III and IV of the indictment which charged her with knowingly making, delivering or mailing a fraudulent absentee ballot application in violation of Section 115.277 and Section 115.279(4), punishable under Section 115.631. Accordingly, for each count Hall was sentenced to 10 days in jail and fined $2,500. On appeal defendants raise numerous allegations of instructional and evidentiary error and pray for reversal of their convictions or, in the alternative, a new trial. We affirm.
On their first point on appeal, defendants argue that the trial court committed prejudicial error in submitting Instructions 11 and 14 to the jury. These instructions submit the offense of making a fraudulent absentee ballot in violation of Section 115.279 which provides in pertinent part:
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2. Each application shall be made to the election authority of the jurisdiction in which the person is or would be registered. Each application shall be in writing and shall state the applicant's name, address at which he is or would be registered, his reason for voting an absentee ballot and the address to which the ballot is to be mailed, if mailing is requested. Each application to vote in a primary election shall also state which ballot the applicant wishes to receive. If any application fails to designate a ballot, the election authority shall, within three working days after receiving the application, notify the applicant by mail that it will be unable to deliver an absentee ballot until the applicant designates which ballot he wises to receive.
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4. Each application for an absentee ballot shall be signed by the applicant or, if the application is made by a guardian or relative pursuant to the provisions of this section, the application shall be signed by the guardian or relative, who shall note on the application his relationship to the applicant. If an applicant, guardian or relative is blind, unable to read or write the English language or physically incapable of signing the application he shall sign by mark, witnesses by the signature of an election official or person of his own choosing. Any person who knowingly makes, delivers or mails a fraudulent absentee ballot application shall be guilty of a class one election offense.
Instructions 11 and 14 submit the same offense but refer to applications made on behalf of two different voters. The instructions are virtually identical and read as follows:
A person is responsible for her own conduct and she is also responsible for the conduct of other persons in committing an offense if she acts with them with the common purpose of committing that offense, or if, for the purpose of committing that offense, she aids or encourages the other persons in committing it.
As to Count IV, if you find and believe from the evidence beyond a reasonable doubt:
then you are instructed that the offense of making a fraudulent absentee ballot application has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of the offense of making a fraudulent absentee ballot application, the defendant Mary Hall acted alone or aided or encouraged the other defendants in committing that offense,
then you will find the defendant Mary Hall guilty under Count IV of making a fraudulent absentee ballot application....
Defendants contend that the instruction is erroneous because it fails to ascribe all the elements of the offense to the specific person alleged to have performed the acts and instead allows conviction upon the finding that "defendants or any of them" performed the prohibited acts. We disagree.
The Missouri law governing accomplice liability is set forth in RSMo Chapter 562. Section 562.036 provides:
A person with the required culpable mental state is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is criminally responsible, or both.
Section 562.041 states:
1. A person is criminally responsible for the conduct of another when....
(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.
It is well established that failure to conform to the pattern instructions that appear in the MAI or the applicable Notes on Use constitutes error. State v. Hannett, 713 S.W.2d 267, 272 (Mo.App.1986). There are no approved MAI-CR2d instructions for the offense of making a fraudulent absentee ballot application. Defendants were charged under a theory of complicity so a modified version of MAI-CR2d 2.12 was given. Notes on Use 6 examines certain factual variations that involve accomplice liability and provides guidelines for the drafting of instructions in such situations. Defendants submit that example 6(a) is applicable to this case. Section 6(a) states:
.... (a) Where the evidence shows the conduct of the offense was committed entirely by someone other than the defendant and the sole basis for defendant's liability is his aiding the other person or persons (as where the defendant is not even present but planned the offense, or where he is the lookout or driver of the getaway car in a robbery or burglary) then all the elements of the offense should be ascribed to the other person or persons and not to the defendant.
However, the evidence in this case does not show that the conduct of the offense was committed entirely by someone other than defendant Hall. Rather, the evidence shows that one or more of the three defendants committed the offensive acts, but there is no clear indication as to which person or persons committed such acts. In this situation Notes on Use 6(c) is applicable and provides:
(c) Where the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense (as where the defendant is charged with burglary and the evidence shows the defendant was one of two persons, one of whom unlawfully entered the building...
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