State v. Marks

• Decision Date: 21 October 1986
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Nancy MARKS, Appellant. 37517.
• Court: Missouri Court of Appeals

Page 51

721 S.W.2d 51

STATE of Missouri, Respondent, v. Nancy MARKS, Appellant.

No. WD 37517.

Missouri Court of Appeals Western District.

Oct. 21, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 25, 1986.

Application to Transfer Denied Jan. 13, 1987.

David W. Russell, Charles E. Atwell, Elena M. Franco, Kansas City, for appellant.

William L. Webster, Atty. Gen., Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J., and TURNAGE and KENNEDY, JJ.

KENNEDY, Judge.

Pursuant to § 570.030, RSMo 1978, the appellant Nancy Marks was convicted by a jury in the Circuit Court of Jackson County for stealing by means of deceit property over the value of $150. She was sentenced to imprisonment for a period of seven years and fined $5,000. Asserting three points of error in the trial court, Marks now appeals from her conviction.

The judgment of conviction is affirmed.

The following facts were adduced at trial. David and Kathie Warren were married in 1980 and settled on a farm outside of Jamesport, Missouri. Toward the end of that year they began experiencing marital difficulties. In January 1981, the Warrens saw a newspaper advertisement in which "Sister Nancy" offered assistance in overcoming such marital problems. Upon calling a telephone number which appeared in the advertisement, they reached the appellant Nancy Marks.

Over the next three and a half years, the Warrens remained in close contact with appellant. They frequently visited her house in Kansas City, Missouri, which also served as appellant's place of business. A palm reader's sign was displayed in front of the house, and during their initial visit to Sister Nancy's establishment, the Warrens had their palms read. Appellant thereupon informed the couple that David Warren had some darkness or evil over him which had to be eradicated in order to solve the Warrens' marital difficulties.

Appellant offered to rid David Warren of this evil for a fee of $450. She instructed the Warrens to rub an egg over their bodies, put it underneath their bed for a night, and bring the egg back to appellant along with the money. The Warrens complied with these instructions and went to see appellant a second time. Incantations were recited and the egg was cracked open, revealing a red, mucous-like substance inside. Appellant told the Warrens that this red substance represented the evil she had told them about. She also said that for an additional $2,000 she could rid them of the evil.

Appellant instructed the Warrens to follow the same procedures with a tomato as they had earlier with the egg. The Warrens followed these instructions and returned to appellant's house. Incantations were again recited and the tomato was split open, revealing a foreign object which appellant identified as the claw of the devil. The Warrens then paid $5,000 for an invisible "seal or dome" which appellant said would protect the couple against the evil over them.

In the spring of 1981, Kathie Warren became pregnant. She began experiencing severe stomach cramps. When advised of these developments, appellant told the Warrens that their baby would be born blind and that Kathie would die during childbirth. They were instructed to bring appellant $25,000 in order to prevent these things from happening.

The Warrens continued to consult appellant in order to stave off the evil over them, sometimes repeating the egg or tomato procedures. Appellant usually said that she would take the money to her church, where she would "work" on it and talk with spirits. On occasion, appellant purported to burn the money which David and Kathie Warren brought to her. She assured the couple that they would get all of their money back after the evil had been removed.

Over the three and half year period during which they consulted with Nancy Marks, the Warrens spoke to her hundreds of times, sometimes calling her as frequently as every other day. They visited her house on approximately 60 occasions. The Warrens estimated that they gave appellant a total sum of about $150,000. They sold livestock, farm machinery, and eventually their farm. They also borrowed some of the money they gave to appellant. In 1984, the Warrens became suspicious that appellant's activities were not legitimate and contacted the police. This prosecution followed.

I

Appellant contends that the verdict-directing instruction was fatally defective in that the misrepresentations charged were submitted to the jury disjunctively, whereas the information had alleged the misrepresentations in the conjunctive. The instruction in question directed the jury to find the offense of stealing by deceit if they determined beyond a reasonable doubt that the defendant had appropriated $150 or more from David Warren by means of falsely promising to prevent Kathie Warren from dying during childbirth or falsely promising to cure Kathie Warren of stomach cramps or falsely promising to remove evil curses from the lives of David and Kathie Warren.

The verdict in a jury trial of a criminal case in Missouri must be unanimous. Supreme Court Rule 29.01(a). The thrust of appellant's first point on appeal is that the disjunctive wording of the verdict director allowed the jury to convict without necessarily being in unanimous agreement regarding which misrepresentation(s) formed the basis of the offense. Thus, the accusation (which charged the misrepresentations in the conjunctive) was constructively amended and broadened by the disjunctive submission. This aspect of the argument is treated in Section II of the opinion. Simply put, the jurors were not required to agree upon any particular promise among the three which appellant is charged with having made.

The point is disallowed for reasons we will now explain.

The argument in the present case is more theoretical than real. There are cases where submissions in the disjunctive have been held bad in that they allowed for a non-unanimous verdict. Those cases, however, are those where the gravamen of the offense has been submitted alternatively. For example, in State v. Oswald, 306 S.W.2d 559 (Mo.1957), the trial court charged the jury that conviction was authorized if the defendant had inserted his genital organ into "the mouth and rectum" of the victim or "committed either of such aforesaid acts". This instruction was held bad in that it allowed a non-unanimous verdict. But the disjunctive submission was as to the very act which was the gravamen of the offense. And it is true that the jury must agree on "just what the defendant did", United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977).

Similarly in State v. Washington, 242 Mo. 401, 146 S.W. 1164 (Mo.1912) and the companion case of State v. Jackson, 242 Mo. 410, 146 S.W. 1166 (Mo.1912), the verdicts were held bad for non-unanimity where the juries were directed to find the respective defendants guilty (of keeping a gaming table) if they had unlawfully maintained either a crap table or a poker table.

Our case, however, falls within another class of cases, in which the method is submitted disjunctively. In those cases, disjunctive submissions are permissible. Here the gravamen of the offense was the fraudulent appropriation of money, while the misrepresentations or tricks were the means thereof. In Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), the instruction directed a verdict of guilty if defendant directly committed the crime charged, aided or abetted in its commission, or conspired with another to commit the crime. This instruction was held not to violate the unanimity principle. Said the court, at 280 N.W.2d 292-293:

Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed. The cases across the country--New York, Michigan, Washington--recognize and note that it is sufficient that all jurors unanimously agree on their ultimate conclusion that the defendant was guilty of the crime charged, though they may not agree on the manner in which the defendant participated in the crime if under any of the alternative ways the defendant would be guilty of the crime charged. To permit any other conclusion would be to permit the guilty defendant to escape accountability under the law because jurors could not unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a participant.

Our own case of State v. Esker, 658 S.W.2d 49, 53 (Mo.App.1983) holds the same.

We note that there was evidence to support each of the three statements hypothesized.

II

The indictment, as before noted, charged in the conjunctive that defendant had made four different false and fraudulent representations to the victim David Warren. The verdict director directed conviction if defendant made any one of three of the charged representations.

Appellant says the disjunctive submission of the hypothetical false statements which had been charged conjunctively in the indictment constituted a constructive amendment of the indictment.

Ultimately, this argument is based upon the same theory as the argument that the disjunctive submission allows a non-unanimous verdict, a point which we have treated in Section I hereof. Defendant acknowledges a line of Missouri cases which hold that the verdict director may hypothesize, in the disjunctive, various ways or means of committing an offense, which have been charged in the conjunctive. State v. Johnstone, 335 S.W.2d 199, 203 (Mo.1960); Ryan v. State, 634 S.W.2d 529, 532 (Mo.App.1982); State v. Hulett, 595 S.W.2d 767, 769 (Mo.App.1980); State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 203 (banc 1954); State v. Church, 636 S.W.2d 703, 704 (Mo.App.1982). She attempts to distinguish these cases from her own, but we think they are...