State v. Lupo, 47108

• Decision Date: 17 July 1984
• Docket Number: No. 47108,47108
• Citation: 676 S.W.2d 30
• Parties: STATE of Missouri, Respondent, v. Phillip T. LUPO, Appellant.
• Court: Missouri Court of Appeals

Page 30

676 S.W.2d 30

STATE of Missouri, Respondent, v. Phillip T. LUPO, Appellant.

No. 47108.

Missouri Court of Appeals,

Eastern District,

Northern Division.

July 17, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1984.

Juaquin (Jack) Gallego, Lee R. Elliott, Troy, for appellant.

John Ashcroft, Atty. Gen., Debroah Neff, Kristie Green, Asst. Attys. Gen., Jefferson City, for respondent.

CRIST, Judge.

Appeal from a jury conviction of conspiracy to steal by deceit. Defendant was sentenced as a prior offender to five (5) years imprisonment. We affirm.

A jury found the defendant agreed with one McKinnon one or both of them would steal agricultural chemicals by deceit. Pursuant to their agreement, McKinnon, on January 12, 1982, obtained chemicals by deceit from Niemeyer Tractor and Farm Supply, located in Bowling Green, Missouri. McKinnon delivered these chemicals to defendant for defendant to sell. Defendant does not question the sufficiency of the evidence.

Defendant raises 10 points on this appeal. In point one, he asserts the trial court erred in granting the state leave to file an amended information charging defendant as a prior offender. Defendant asserts there was no competent evidence the prior offense was a felony, and no evidence defendant was represented by counsel at the prior proceedings. Defendant has not preserved this point for review. Defendant did not object to the trial court's finding he was a prior offender when that finding was made. State v. Borden, 605 S.W.2d 88, 90 (Mo. banc 1980). Defendant did not object to the finding he was a prior offender when allocution was granted. State v. Tate, 657 S.W.2d 727, 728 (Mo.App.1983). Finally, defendant failed to include this point in his motion for new trial. State v. Davis, 639 S.W.2d 866, 868 (Mo.App.1982). In any event, there was no error because defendant did not contend, and makes no contention now, the prior conviction was not a felony, or that he was not represented by counsel at the prior proceedings.

In point two, defendant asserts the trial court erred by orally instructing the jury defendant was charged with "stealing by deceit," when defendant was charged with "conspiracy to steal by deceit." This point has not been preserved for review because defendant failed to include it in his motion for new trial. State v. Johnson, 537 S.W.2d 816, 819 (Mo.App.1976). Prior to voir dire, the trial court inadvertently told the jury defendant was charged with stealing by deceit. Defendant did not object. The trial court gave the jury a proper written instruction at the close of trial. We find only harmless error in the inadvertent statement of the trial judge.

In point three, defendant asserts the trial court erred by unduly restricting his cross-examination of state witnesses. This point was not preserved for review because defendant failed to include it in his motion for new trial. State v. Clark, 652 S.W.2d 123, 128 (Mo. banc 1983). In addition, defendant failed to make an offer of proof when the prosecutor's objection was sustained. State v. Bell, 632 S.W.2d 68, 70 (Mo.App.1982). In any event, our reading of the transcript convinces us the cross-examination was not unduly restrictive.

In point four, defendant asserts the trial court erred in declaring a state's witness hostile and subject to cross-examination. Defendant did not preserve this point because he did not include it in his motion for new trial. In addition, defendant failed to object when the state requested the witness be declared hostile. State v. Graves, 588 S.W.2d 495, 499 (Mo. banc 1979). In order for a party calling a witness to treat that witness as hostile, the witness must, by reason of inconsistent statements, surprise the party asking the questions, and the answer given must state facts which in effect make the witness a witness for the other side. State v. Armbruster, 641 S.W.2d 763, 767 (Mo.1982). Here, the witness attempted to evade answering the state's questions, and she contradicted her earlier written statements. The transcript shows no error in declaring this witness to be hostile. See State v. Taylor, 324 S.W.2d 643, 647-48 (Mo.1959).

In point five, defendant asserts the trial court erred in allowing the state to question the hostile witness about alleged threats and other bad acts committed against the witness by defendant. The state properly recognizes defendant's point preserves nothing for review, since the point and the argument portion relating thereto are not in compliance with Rule 30.06. In addition, defendant did not include this point in his motion for new trial, and our reading of the transcript convinces us this point has no merit.

In his sixth point, defendant asserts the trial court erred in barring the testimony of two defense witnesses as a sanction for defendant's failure to comply with Rule 25.05. These witnesses were to testify as to the reputation of McKinnon. The state requested disclosure of witnesses ten months prior to trial. Defendant did not respond. The trial court refused to permit defendant's two character witnesses to testify. Rule 25.16 authorizes the trial court to exclude the...