State v. Ruth, 17297
| Decision Date | 01 May 1992 |
| Docket Number | No. 17297,17297 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Clifford James RUTH, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., for plaintiff-respondent.
The defendant Clifford James Ruth was found guilty by a jury of felony stealing and sentenced as a prior offender to a term of six years with the Department of Corrections. He appeals, contending the trial court erred in permitting the state to amend its information on the day of trial and in denying his oral motion for a continuance. We conclude the trial court did not abuse its discretion in either matter, and we affirm the judgment.
On May 7, 1990, the defendant was charged with stealing a truck cab "sleeper" in violation of § 570.030.1. 1 The information also charged the offense was a class C felony because the value of the sleeper was $150 or more. Section 570.030.3(1).
Immediately prior to the October 18, 1990, trial, the state sought leave of court to file a second amended information in which it no longer assigned a value to the sleeper. In the second amended information, the state also alleged that the defendant had two prior stealing convictions and that he was a prior offender (§ 558.016) because of a burglary conviction. 2
The defendant's attorney orally requested a continuance because the second amended information
The trial court permitted the state to file the second amended information and denied the defendant's motion for a continuance. Outside the hearing of the jury, the state offered various exhibits as evidence of the defendant's prior convictions, and the trial court found on the record that the defendant had pleaded guilty to a class A misdemeanor stealing charge on December 27, 1989, and to a class C felony stealing charge on February 20, 1987, and that he was a prior offender under § 558.016 because he had pleaded guilty to a second degree burglary charge on July 11, 1983.
There was testimony that the defendant and two other men removed the sleeper from a dilapidated barn where it had been stored some seven years and took it to a scrap metal dealer who paid them $35 for it. The gist of the defendant's closing argument was that the sleeper was abandoned, that he and the other men were scavenging for "junk" when they took the sleeper, and that the value of the sleeper was less than the statutory $150 minimum for a felony stealing conviction.
The sole verdict directing instruction given by the court was for felony stealing. The instruction, a faithful reproduction of MAI-CR 324.02.1, omitted paragraph Fourth in accord with Notes on Use 7, thereby requiring no finding by the jury about the value of the sleeper. The jury returned a guilty verdict, and the court sentenced the defendant as a prior offender.
On appeal, the defendant contends the trial court erred in permitting the state to file the second amended information immediately prior to trial and in denying his motion for a continuance because the second amended information charged a new offense and it negated his defense that the sleeper was worth less than $150. We review for abuse of discretion. State v. Moton, 733 S.W.2d 449, 451 (Mo.App.1986); State v. Edwards, 657 S.W.2d 343, 345 (Mo.App.1983).
Supreme Court Rule 23.08 provides in part: "Any information may be amended ... at any time before verdict or finding if no additional or different offense is charged and if a defendant's substantial rights are not thereby prejudiced." The value of the appropriated property is not an element of the offense of stealing. § 570.030.1; State v. Bradshaw, 643 S.W.2d 834, 836[3, 4] (Mo.App.1982). Thus the deletion of an allegation of the sleeper's value did not charge the defendant with an additional or different offense.
Nor did the addition of the allegations concerning the defendant's two prior stealing convictions charge an additional or different offense. The allegations of two prior stealing convictions brought into play § 570.040.1, which provides, "Every person who has been previously convicted of stealing two times, and who is subsequently convicted of stealing is guilty of a class C felony and shall be punished according." In applying predecessor statute § 556.285, RSMo Supp.1953 (repealed), 3 the Missouri Supreme Court observed, "The allegations of the prior convictions are not charges of distinct crimes but are merely to disclose facts bringing the new offense within the statute and for determining the criminality of the new offense." State v. King, 365 Mo. 48, 52, 275 S.W.2d 310, 312 (1955). The purpose of specifying in an information that the value of the appropriated property is $150 or more is to provide for increased punishment. § 570.030.3(1); Bradshaw, 643 S.W.2d at 836. Section 570.040.1 serves the same purpose; it does not charge an additional or different offense.
Rule 23.08 also requires that we decide if the defendant's substantial rights were prejudiced by the amendment of the information. Bradshaw, 643 S.W.2d at 836. 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).
The defendant argues, "The value of the property allegedly stolen was very much in issue, and the second amended information denied Mr. Ruth a defense of the issue of value...." The defendant misconceives the elements of stealing as set out in § 570.030.1. The...
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