State v. Lambert
| Decision Date | 20 November 2019 |
| Docket Number | No. SD 35389,SD 35389 |
| Citation | 589 S.W.3d 116 |
| Parties | STATE of Missouri, Respondent, v. Otis L. LAMBERT, Appellant. |
| Court | Missouri Court of Appeals |
Appellant’s Attorney: James Egan, of Columbia, MO.
Respondent’(s) Attorney: Eric S. Schmitt, Attorney General, and Garrick F. Daplin, Assistant Attorney General, of Jefferson City, Missouri.
Otis L. Lambert ("Lambert") appeals his convictions, following a jury trial, of two counts of statutory sodomy in the first degree, and one count of child molestation in the first degree. Lambert challenges his convictions in one point on appeal. Finding no merit to Lambert’s point, we affirm the judgment of the trial court.
We recite the evidence and the reasonable available inferences therefrom in the light most favorable to the verdict. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc. 2016). We recite other information as necessary for context.
Lambert abused Victim (a child under fourteen years of age at all relevant times) several times between December 5, 2009 and July 5, 2011. Victim’s mother died on February 1, 2011, and Victim disclosed the abuse shortly thereafter. At her Child Advocacy Center ("CAC") interview, Victim claimed that the terminal act of abuse occurred before her mother died.
On September 26, 2014, Lambert was charged by felony information with two counts of the unclassified felony of statutory sodomy in the first degree (Counts I and II), pursuant to section 566.062,1 and one count of the class B felony of child molestation in the first degree (Count III), pursuant to section 566.067. The information asserted Lambert committed these acts against Victim "on or between December 5, 2009 and February 1, 2011."
A jury trial commenced on November 1, 2017. Lambert did not testify and presented no evidence. During the State’s case in chief, Victim testified that the terminal incident of abuse occurred after her mother died. Defense counsel did not object.
During defense counsel’s cross-examination of Victim, defense counsel adduced four instances of Victim’s testimony that the terminal act of abuse occurred after her mother died.
After the State rested its case, it requested to amend the timeline in the information from February 1, 2011 (when Victim’s mother died) to July 5, 2011, based on Victim’s trial testimony (which was at variance with her CAC interview). Defense counsel then (and not before) objected on the basis that "[i]f we had known prior to coming here today that the date range was going to extend from the time that [Victim’s] mother died until the date that [Victim] went to Lakeland we may have offered witnesses who were in the house at that time[.]" Nevertheless, defense counsel conceded that The trial court granted the State’s request to expand the date range in the information.
The trial court instructed the jury, including Instructions 6, 8, and 10, all of which contained the language: "First, that on or about December 5, 2009 to July 5, 2011...."
The jury found Lambert guilty of both counts of statutory sodomy in the first degree (Counts I and II), and guilty of child molestation in the first degree (Count III). The trial court sentenced Lambert to 25 years in prison for each of the two first-degree sodomy convictions, and 15 years in prison on the child molestation conviction, with the sentences to run concurrently.
On November 28, 2017, Lambert filed a "Motion for Judgment of Acquittal Notwithstanding the Verdict or, in the Alternative, Motion for New Trial." Included in the motion were allegations of trial court error for sustaining the State’s motion to extend the time period in which the sexual abuse of Victim occurred from February 1, 2011 to July 5, 2011. The trial court overruled the motion. This appeal followed.
In one point on appeal, Lambert asserts the trial court erred in allowing the State to expand the dates charged in each of the counts from the dates charged in the information, and in submitting the verdict directors for each count.
"This Court reviews a trial court’s decision to allow an amendment of a charging document for abuse of discretion." State v. Seeler , 316 S.W.3d 920, 925 (Mo. banc 2010). "A trial court abuses its discretion when it hands down a ruling so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration." State v. Sitton , 323 S.W.3d 65, 68 (Mo. App. S.D. 2010).
Lambert claims that "[t]he trial court erred in allowing the State to expand the dates charged in each of the counts from the dates charged in the information, and in submitting the verdict directors for each count[.]" In support, he argues that "defense counsel had prepared for trial while under the impression that no witnesses would be available because the last time the abuse was alleged to have occurred was before [Victim]’s mother died[,]" and that "allowing the State to add the time period after [Victim]’s mother died to the verdict directors after it had presented its case-in-chief deprived Mr. Lambert of adequate notice to find potential alibi witnesses and to prepare for trial." (Emphasis in original).
Rule 23.082 governs the amendment of an indictment or information:
As our Supreme Court has indicated, "[t]he purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of an acquittal." State v. Rohra , 545 S.W.3d 344, 347 (Mo. banc 2018) (internal quotation and citation omitted). Thus, where a substituted charging document is filed before the jury’s verdict, the issue (as applicable here) is "whether the trial court’s allowing [the substitution] prejudiced [defendant’s] substantial rights." Seeler , 316 S.W.3d at 926.
Prejudice is not directed at the loss of new theories of defense and evidence otherwise made (potentially) pertinent by the substituted charging instrument. Rather, its proper focus is whether the existing planned defense , and the evidence already adduced (and already planned to be adduced ) in accord therewith, are still effectively operative—i.e. , "whether the planned defense to the original charge still would be available after the amendment and whether the defendant’s evidence would be applicable before and after the amendment." Id. (Emphasis added).
Where "[defendant]’s defenses were unavailable under the new information, and the evidence he adduced in cross-examination of the state’s witnesses was no longer applicable after the information was substituted, he has been prejudiced." Id. Thus, our appellate courts have indicated that where an amended charging document has the effect of vitiating a defendant’s already planned alibi defense—where defendant demonstrates the existence of such defense by substantial evidence3 —the amendment is generally disallowed.4
Defense counsel’s decisions as to what actions to take in opposition (or not) to a proposed amendment or substitution are generally presumed to be "a matter of trial strategy."5 Here, defense counsel’s theory of the case was that the abuse "did not happen[,]" in that Victim had motive to lie and was not a credible witness—i.e. , that Victim blamed Lambert for her mother’s death, wanted to escape "poverty," and Victim’s accusations against Lambert were not based on truth, but rather upon her personal interests. Here, there is no indication that Lambert’s planned defense was in any way prejudiced—rather, as discussed more fully infra , the record demonstrates that defense counsel purposefully (and strategically) developed evidence outside of the State’s charged timeline in accord with its planned trial strategy, and likewise heavily relied on such evidence in closing argument.
The State’s felony information (as operative at the beginning of the jury trial) charged that Lambert’s sexual assaults against Victim occurred "on or between November 5, 2009 and February 1, 2011." The terminus of this charging range reflected the date Victim’s mother died, pursuant to Victim’s disclosures in her CAC interview.
At trial, Victim testified that the last instance of abuse occurred "after my mom died, but I don't really remember how old I was." The prosecutor asked, "It was after your mom died or before?" Victim answered," "After." Defense counsel did not object to this testimony as being outside the date range of the information.
Well before the State requested to amend the information, defense counsel adduced further testimony from Victim in this vein on cross examination. Defense counsel obtained Victim’s testimony that the last charged act of abuse occurred when Victim was The following colloquy then occurred:
Summarily, defense counsel adduced—in quick succession—four repetitions of the same information-deviating testimony. This is not indicia of defense counsel’s intention to confine the State (or the evidence) to the boundaries of the then-operative charging information, but...
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