State v. Owens
| Decision Date | 19 April 1977 |
| Docket Number | No. 37753,37753 |
| Citation | 550 S.W.2d 211 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ronald Delane OWENS, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant Ronald Delane Owens was found guilty by jury of robbery first degree. His punishment was assessed by the jury at seven years in the custody of the Department of Corrections. At his trial he was represented by retained counsel. A brief statement of the facts will illuminate the points relied on in this appeal.
During the early morning of January 5, 1974, shortly after midnight, Durward Edwards had fallen asleep while watching his television. He had just awakened and started to turn off his television set when he heard a knock at the door. He opened the door to find David Melton and a friend of Melton's who were allowed in Edwards' apartment. Edwards had had some acquaintance with Melton before this time and he gave them some food when requested. After they left they went to Owens' apartment and informed Owens that Edwards had a gun. Defendant then went to Edwards' apartment by himself. When he knocked at the door Edwards came to open it and was carrying a .38 gauge Smith and Wesson handgun. Defendant Owens asked Edwards if he could use his telephone. Edwards showed the pistol to defendant Owens when he requested to see it and the defendant at that time grabbed it. Owens then backed to the door, raised the weapon to his eye while pointing it toward Edwards and told him, "you know what is in this" or words to that effect and then backed out the door. Edwards had previously informed Owens that he had high velocity shells in the weapon. In about fifteen or twenty minutes four men wearing sacks on their heads with cut out holes for their eyes, nose and mouth, entered the apartment. Edwards recognized the shoes on one of the men as being the same shoes that had been on David Melton, one of those who had visited him on the first occasion. He also observed a tattoo on this individual similar to and in the same location on his hand as the one upon Melton. One of the group informed Edwards that they wanted his money or his life and then proceeded to take his television set, a rifle, some $500 in cash, .38 caliber shells and a cassette player. During the time that these four men were there, they threatened Edwards several times, pointed a pistol at his head and at one time shot a hole in the wall just above his head. The next day the cartridges, the television set and Edwards' pistol were found in the apartment of defendant Owens.
The original information filed in this case charged defendant Owens with robbing Edwards of the .38 caliber pistol. The first amended information filed on November 22, 1974, added the words "acting with others" to the charge. The second amended information, filed on February 18, 1975, the day the trial began, charged that defendant acting with others did not only rob Edwards of his .38 caliber pistol but also of $500, the television, hand tools and a tape cassette player. Defendant's first contention on appeal charges error on the part of the trial court in permitting the filing of this second amended information on the eve of trial because it charged an offense additional to and different from that charged in the original information and thereby prejudiced the appellant in the preparation of his defense. Defendant does not complain of the addition of "acting with others" because it does not charge a different offense. State v. West, 484 S.W.2d 191, 195(4) (Mo.1972). But defendant does contend that by adding the list of items taken from the victim in the second amended information in addition to the .38 caliber pistol originally alleged to have been taken from the victim, this second amended information in effect charges the defendant with two robberies, one that occurred when defendant took the victim's weapon and then again when the other items were taken by the four men who came masked to the victim's apartment.
This charge of duplicity in the information is not meritorious. The acts of the defendant are connected by time, place and purpose to the commission of one crime with which he is charged. The charge of robbing the victim of the various items taken from him at that time and place, therefore, may be set out in one count of an information or indictment. State v. Schmittzehe, 3 S.W.2d 235, 238(2) (Mo.1928). As an example, in State v. Nieuhaus, 217 Mo. 332, 117 S.W. 73, 77 (1909), the defendant was prosecuted for feloniously...
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State v. Bradley
...so close in time that they [constitute] a single offense." State v. Villanueva, 598 S.W.2d 161, 163 (Mo.App.1980) quoting State v. Owens, 550 S.W.2d 211 (Mo.App.1977); see State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972); State v. Boone, 289 S.W. 575 The State argues that "the information cha......
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State v. Henson, 44868
...he should raise an objection at the earliest opportunity and failure to do so amounts to a waiver of the objection." State v. Owens, 550 S.W.2d 211, 214 (Mo.App.1977). Because of his failure to raise this objection at his trial or on his motion for a new trial, defendant has waived the poin......
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State v. Montgomery, 40768
...or additional crime. State v. West, 484 S.W.2d 191, 195 (Mo.1972); State v. Morgan, 546 S.W.2d 207, 208 (Mo.App.1977); State v. Owens, 550 S.W.2d 211, 213 (Mo.App.1977). While we agree that the ultimate question is one of prejudice, the defendant has failed to demonstrate how he was prejudi......
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State v. Mitchell
... ... Because ... these constitutional contentions were brought up for the first time on appeal and were not elaborated on in the argument portion of the defendant's brief, they are deemed abandoned. State v. Owens, 550 S.W.2d 211, 214(3, 4) (Mo.App.1977); State v. Schulten, 529 S.W.2d 432, 434(4) (Mo.App.1975) ... We turn now to the merits of the defendant's contentions that the State was allowed to indulge in actions whose sole purpose was to prejudice the jury against the defendant. The ... ...