State v. Mills, s. 17730
| Decision Date | 24 March 1994 |
| Docket Number | Nos. 17730,18796,s. 17730 |
| Citation | 872 S.W.2d 875 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Kenneth MILLS, Defendant-Appellant. Kenneth MILLS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Office of the State Public Defender, Columbia, for defendant-movant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent-respondent.
Kenneth Mills (the defendant) was convicted by a jury of attempted forcible rape (Count I), § 566.030, RSMo Supp.1991, and two counts of sodomy (Counts II and III), § 566.060, RSMo Supp.1991. He was sentenced to 10 years' imprisonment on each charge. 1 In Case No. 17730 he appeals from the judgment imposing the sentences.
The defendant first avers that the trial court erred when it allowed the state to file an amended information the morning of trial. In Point II he charges that the trial court committed prejudicial error when it permitted the prosecutor to argue punishment in the second part of the closing argument without mentioning that subject in the initial part of it. We affirm.
After sentencing, Mills (the movant) filed a pro se Rule 29.15 motion seeking postconviction relief. The movant's pro se motion was amended by his appointed postconviction counsel. The movant's request for postconviction relief was denied without an evidentiary hearing. In Case No. 18796 he appeals from that denial. We affirm.
Pursuant to Rule 29.15(l ) the appeals were consolidated.
The sufficiency of the evidence to sustain the defendant's convictions is not in dispute.
V_A_B_, the victim, was age 15 at the time of trial. 2 In March 1986 she and her mother moved to Caruthersville, Missouri. The defendant was cohabiting with the victim's mother at the time. He continued to live in their home until late September or early October 1987.
At trial V_A_B_ testified that while living at Caruthersville, the defendant made her have oral sex with him by "sticking [her] mouth on his penis" and by placing "his tongue in [her] clitoris." In another incident, as V_A_B_ was taking a bath, the defendant stuck his fingers in her anus, rolled her over, and then tried to stick his penis into her anus.
Initially V_A_B_ kept quiet about the abuse because of the defendant's threats and because of her concern that she would be taken from her mother if she told anyone about his acts. During the third week of September 1987, while they were alone at home, the defendant forcibly attempted to put his penis in V_A_ B_'s vagina. The next day the victim finally told her mother what the defendant had been doing. The mother immediately confronted the defendant with the accusations. He denied them. Nonetheless, he moved when the victim's mother insisted he do so.
Because of her fear of the defendant and her concern that her children might be removed from her custody, the mother did not initially report the crimes to law enforcement officials. She first told authorities about the incidents in 1991. She did so following a telephone conversation in January 1991 with the defendant in which he, for the first time, admitted to the mother that V_A_B_'s accusations were true.
At trial the defendant denied ever sexually molesting the victim. He further testified as follows. The victim's mother had threatened "several times" to report him for sexual abuse of V_A_B_. The accusations were usually made when he was separating from the victim's mother. In September 1987, he moved away because he found that a drug dealer was coming to his home while he was gone. After leaving in September 1987, the victim's mother "demanded" that he return saying that if he did not do so, she would accuse him of molesting V_A_B_. He returned for a short while but then left again and never resumed living with the victim's mother. He denied admitting to the victim's mother in the January 1991 telephone conversation that he had sexually molested V_A_B_. Rather, he insisted that the victim's mother again asked that he return to live with her, an offer he declined.
For his first point the defendant contends that the trial court erred in allowing the state to file an amended information the morning of trial, June 19, 1991. The amendment took the following form. Originally the state charged that the defendant committed all three offenses "during the period ... March 1, 1986 through ... September 1, 1987." The state amended the information to change the date of the attempted rape to "on or about the month of September, 1987" and the date of the sodomy offenses to "March 1, 1986 through and including September 30, 1987." (Our emphasis.)
In his argument the defendant points to the fact that two days before trial he filed a motion for a bill of particulars. On the day before trial the court ruled the motion, saying: "I'm limiting the State to ... the allegation that these offenses occurred ... on or between ... March 1, '86, through September 1 of '87." With that background, the defendant insists that the trial court committed prejudicial error by then allowing the state to amend the information so as "to expand the time period during which [he] could be convicted." The defendant says that under the circumstances the amendment "surprised" him and denied him "the opportunity to prepare a defense."
Under Rule 23.04 a trial court has discretion to direct or permit the filing of a bill of particulars. State v. Davis, 685 S.W.2d 907, 913 (Mo.App.1984). Denial of a motion for a bill of particulars will not be disturbed unless an abuse of discretion is shown. State v. Cox, 352 S.W.2d 665, 672 (Mo.1961); State v. Feeler, 634 S.W.2d 484, 486 (Mo.App.1981). In reviewing a trial court's ruling for abuse in this regard we know that "[t]he function of such a bill is limited to that of informing the defendant of the particulars of the offense sufficiently to prepare his defense." State v. Anderson, 384 S.W.2d 591, 598 (Mo. banc 1964) (emphasis in original).
Rule 23.08 authorizes the amendment of an information "[a]t any time ... if no additional or different offense is charged and if a defendant's substantial rights are not thereby prejudiced." Under this rule the test of prejudice is "whether a defense under the charge as originally made would be equally available after the amendment and whether defendant's evidence would be equally applicable after as well as before the amendment." State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964). See also State v. Ruth, 830 S.W.2d 24, 26 (Mo.App.1992).
The defendant does not contend that the amended information charged him with a new offense nor does he explain or expound upon his bald assertion that the amendment denied him the opportunity to prepare a defense. As the defendant acknowledges, time is not of the essence in sex offense cases. State v. Gardner, 849 S.W.2d 602, 605 (Mo.App.1993); State v. Ellis, 820 S.W.2d 699, 701 (Mo.App.1991). In such cases the state is not confined in its evidence to the precise date stated in the information, but may prove the offense to have been committed on any day before the date of the information and within the period of limitation. Gardner, 849 S.W.2d at 605.
Neither at trial nor before this court does the defendant present an alibi defense. The defendant testified that he had lived in the same household as the victim when she claimed the offenses occurred, but denied that he attempted to rape her and denies that he sodomized V_A_B_. He insisted that the victim's mother had often accused him falsely of abusing V_A_B_, usually when he was threatening to leave. Obviously he was hoping that the jury would infer from his testimony that there was a motive for the victim and her mother to make false accusations. The defense thus raised by the defendant to the charges as originally made was equally available after the amendment and the defendant's evidence was equally applicable after and also before the amendment. Under the circumstances the defendant has failed to meet his affirmative burden of showing that he was prejudiced by the amendment to the information on the day of trial. See Ruth, 830 S.W.2d at 26; State v. Simmons, 825 S.W.2d 361, 365 (Mo.App.1992). The trial court did not err in allowing the challenged amendment to the information. Gardner, 849 S.W.2d at 605; State v. Crossland, 820 S.W.2d 72, 77 (Mo.App.1991); Ellis, 820 S.W.2d at 701; State v White, 674 S.W.2d 551, 553-554 (Mo.App.1984). Point I denied.
For his second point, the defendant contends that the trial court abused its discretion in overruling his objection to the prosecutor's final argument where he claims the subject of punishment was mentioned for the first time. The following are details of the closing arguments that are pertinent.
In the initial part of his closing argument the prosecutor told the jury:
In his closing statement defense counsel did not mention punishment.
In the second portion of the state's closing argument the prosecutor went over the verdict forms with the jury, during which the following occurred:
"MR. HAZEL [prosecutor]: And then write in the amount of punishment [on the verdict forms] that you think he deserves in this case.
MR. PAULSON [defense counsel]: Objection, Your Honor. May I approach?
THE COURT: Yes.
(Reporter's Note: Mr. Paulson approached the Bench and conferred with the Court off the record.)
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