State v. Maynard, WD

Citation707 S.W.2d 810
Decision Date18 March 1986
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. James E. MAYNARD, Appellant. 36162.
CourtCourt of Appeal of Missouri (US)

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and MARTIN, Special Judge.

PRITCHARD, Presiding Judge.

By verdicts of a jury appellant was found guilty of four felony offenses, and his punishment was assessed by it as follows: Count I, forcible rape, life imprisonment; Count II, forcible sodomy, life imprisonment; Count III, burglary, fifteen years imprisonment; and Count IV, armed criminal action, life imprisonment. In accordance with the verdicts, the court sentenced appellant to imprisonment in the custody of the Missouri Division of Adult Institutions, the sentences to run consecutively.

The sufficiency of the evidence to sustain the convictions is not questioned. Briefly stated, in the early morning hours of August 4, 1983, the victim was in bed at her home at 1114 West 41st Terrace, Kansas City, Missouri, when she was awakened by a noise which she thought was her cat. She continued to listen, hearing creeping noises, and eventually appellant stepped into the doorway and told her not to move or he would kill her. Appellant, whom she identified in court, then performed cunnilingus on her, then assaulted her breasts, and performed sexual intercourse on top of her. He then rolled over to her left side and put a pocketknife with about a three and a half inch blade against her neck. He then rolled to his back and pulled the victim on top of him and again performed sexual intercourse with her. Appellant went to sleep, and the victim was able to extricate herself and go to a QuikTrip store where she called the police, who came immediately and surrounded the victim's home. Two officers entered the bedroom and found appellant sleeping on the bed. They grabbed him and lifted him from the bed. He broke loose and headed toward the door but ran into the other officers, who threw him to the bathroom floor and hit him with pistols in subduing him. Appellant was taken to Truman Medical Center for his injuries and then to police headquarters.

Appellant's first point is that the trial court erred in granting leave to the state (on the day of trial) to amend the charge of Count IV, armed criminal action, from the language of use of a "deadly weapon" to that of the use of a "dangerous instrument". As noted above, the victim testified that appellant placed a 3 1/2 inch blade of a pocketknife against her neck. RSMo Section 571.010(9), (Cum.Supp.1982) defines a knife as not including an ordinary pocketknife with a blade no more than 4 inches in length. The state apparently concluded, on the basis of evidence which it had from the victim, that it could not prove use of a "deadly weapon" under § 556.061.9, defined as a firearm, a switchblade knife, dagger, billy, blackjack or metal knuckles, but could prove use of a "dangerous instrument", meaning, under § 556.061(7), "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury." The state thus sought to amend the armed criminal action charge to use of a dangerous instrument, which was granted.

Appellant claims that this amendment deprived him of a defense to the original charge, although conceding in his brief that the amendment did not operate to charge a different offense.

Section 571.015, subd. 1, RSMo 1978, defines armed criminal action as the commission of "any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon * * *." [Italics added.] Thus, the offense may be committed by the use of either of the italicized methods.

In State v. Mace, 665 S.W.2d 655, 658 (Mo.App.1984), an amendment was permitted from the allegation that an assault was committed " 'in that ... defendant knowingly caused physical injury' " to the victim by striking her with his fists to " 'in that defendant recklessly caused serious physical injury to Shelby Mace by striking her with his fists.' " The court held that the amendment was merely a change in the manner or method by which the offense of assault was committed. Compare also State v. Higgins, 592 S.W.2d 257, 258 (Mo.App.1979); and State v. Warfield, 507 S.W.2d 428, 430-431 (Mo.App.1974), where the charges were stealing without consent, which were amended to charges of stealing by deceit, held to be proper because the amendments did not charge new offenses, hinder defendants in the preparation of defenses or require them to meet evidence which they might not have anticipated. Here, the record shows that defense counsel was aware of the length of the knife blade, and that it was a pocketknife. The state was entitled to correct its allegation to state that the armed criminal action offense was committed by a dangerous instrument instead of a deadly weapon. Otherwise, no indictment or information could ever be amended to accord with the proof.

An information may be amended under Rule 23.08, even if it is insufficient to charge an offense. State v. Toney, 680 S.W.2d 268, 272 (Mo.App.1984); and the there cited case of State v. Umfleet, 538 S.W.2d 55, 58 (Mo.App.1976). As the state suggests, such a permitted amendment would serve to deprive the defendant of a defense directed toward the original information, i.e. a motion for judgment of acquittal. Here, the situation is similar. Appellant was deprived of the defense that the pocketknife used was not a deadly weapon, since its blade was not more than 4 inches in length. He had to go to trial on the charge that he used a dangerous instrument in committing the underlying felonies. If appellant's contention were sustained, the state could never amend an insufficient...

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6 cases
  • State v. Luster, WD
    • United States
    • Missouri Court of Appeals
    • March 8, 1988
    ...See also State v. Thomas, 522 S.W.2d 74, 76 (Mo.App.1975) (defendant had been hospitalized for a gunshot wound); State v. Maynard, 707 S.W.2d 810, 813-814 (Mo.App.1986) (defendant had been struck in the head by the arresting officer); State v. Smith, 727 S.W.2d 188, 191 (Mo.App.1987) (defen......
  • State v. Rousan
    • United States
    • Missouri Supreme Court
    • January 27, 1998
    ...a consequence, there was no prohibition against his making a voluntary confession to the commission of the crimes. See State v. Maynard, 707 S.W.2d 810, 814 (Mo.App.1986). The interviewing officers testified that appellant did not appear to be in any pain from his injuries, and the record i......
  • State v. Sappington, s. 17995
    • United States
    • Missouri Court of Appeals
    • February 24, 1994
    ...the amended Count I. The state is entitled to correct allegations in informations charging armed criminal action. State v. Maynard, 707 S.W.2d 810, 812-13 (Mo.App.1986). When an amendment is allowed pursuant to Rule 23.08, "[t]he test for prejudice ... is whether a defendant's evidence woul......
  • Harris v. State
    • United States
    • Missouri Court of Appeals
    • November 24, 2015
    ...that he was suffering severe pain or that he did not fully understand the subject matter of the conversation." State v. Maynard, 707 S.W.2d 810, 813–14 (Mo.App.W.D. 1986). To justify suppression of statements on account of his injuries, a defendant "must demonstrate that his injuries were s......
  • Request a trial to view additional results

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