State v. Toney, 47351

CourtCourt of Appeal of Missouri (US)
Citation680 S.W.2d 268
Docket NumberNo. 47351,47351
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Steven L. TONEY, Defendant-Appellant.
Decision Date25 September 1984

Page 268

680 S.W.2d 268
STATE of Missouri, Plaintiff-Respondent,
Steven L. TONEY, Defendant-Appellant.
No. 47351.
Missouri Court of Appeals,
Eastern District,
Division Four.
Sept. 25, 1984.
Motion for Rehearing and/or Transfer to
Supreme Court Denied
Oct. 30, 1984.
Application to Transfer Denied
Dec. 18, 1984.

Page 270

Kathryn Shubik, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Carrie D. Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Page 271

SNYDER, Judge.

This is an appeal from a jury verdict and judgment convicting Steven L. Toney of forcible rape and sodomy. §§ 566.030, 566.060 RSMo. 1978. The trial court sentenced appellant as a persistent offender and as a dangerous offender to two consecutive terms of life imprisonment. § 558.016 RSMo. 1978. The judgment is affirmed.

Appellant contends the trial court erred in:

(1) allowing the case to go to trial because the information in lieu of indictment was fatally defective;

(2) sentencing appellant to consecutive rather than concurrent life terms;

(3) admitting into evidence photographs of appellant which were used in the identification of appellant and allowing the jury to examine the photographs during its deliberation;

(4) overruling appellant's objection to witness Larry Freeman being called by the state;

(5) failing to define the phrase "serious physical injury;"

(6) deferring ruling on appellant's pro se motion for disclosure of data relating to master and jury lists;

(7) overruling appellant's pre-trial motion to suppress identification testimony;

(8) permitting the police officer who arranged the pre-trial photographic and lineup identifications to testify regarding those lineups;

(9) in denying appellant's pre-trial motion to suppress identification; and

(10) in failing to declare a mistrial on the court's own motion when an improper statement was made by the state during re-direct examination of a state witness.

Appellant has also filed a pro se brief in which he raises four points which are similar to points raised in his counsel's brief except that appellant alleges additionally violations of his constitutional rights under the Missouri and U.S. Constitutions.

Appellant's points 5, 8 and 10 were not raised in the trial court. They may be considered only under plain error Rule 30.20. No manifest injustice or miscarriage of justice has resulted from the alleged errors, if such they were, and points 5, 8 and 10 are denied without discussion.

At approximately 3:00 a.m. on September 30, 1982, the victim arrived home at her apartment complex in Richmond Heights, St. Louis County. She had worked from 4:00 p.m. to 12:00 midnight and had a couple of drinks with some friends before returning to her residence. As she entered the front door of the apartment complex, she noticed a man on the landing of the stairway whom she later identified as appellant.

The victim continued up the stairway and put her key in the lock of her third-floor apartment. Appellant then grabbed the victim from behind, placed one hand over her mouth, put a knife to her throat, and dragged her back down the stairway to a wooded area behind the apartment complex. There appellant forced the victim to disrobe, sodomized, and raped her.

Appellant's first contention is that the trial court erred in hearing the present case because the information in lieu of indictment was fatally defective in that Count II, the sodomy count, failed to allege that the victim and appellant were not married and that the sodomy was committed without the victim's consent. The point is denied.

Count II, as originally filed, charged only that appellant "had deviate sexual intercourse with [victim] by the use of forcible compulsion." It omitted the elements of non-marriage and lack of consent. The trial court, however, permitted the state to file an amendment to the information after the close of all the evidence, but before the jury's verdict. The amendment deleted the phrase "by the use of forcible compulsion" and inserted in its place the phrase "to whom the defendant was not married, without the consent of [victim] by the use of forcible compulsion."

There are three issues. First, did the trial court err in permitting the state to

Page 272

amend the information? Second, did the amendment effectively add all the necessary elements to the information? Third, even if the court did not err in permitting the amendment, did the court have jurisdiction to try the case prior to the amendment?

"Any information may be amended or substituted for an indictment 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." Rule 23.08. "If it can be clearly gathered from what is stated in the information that the prosecuting attorney intended to charge a particular offense or the violation of a specific statute, the information may be amended, as to both form and substance, even if the original information is insufficient to charge the defendant with a crime." State v. Umfleet, 538 S.W.2d 55, 58 (Mo.App.1976).

There was no error in granting the state's motion to amend.

A more troubling argument is advanced by the appellant when he points out that when the prosecutor made his oral motion to amend the information, which the court granted, the prosecutor did not specifically mention the "without consent," but only the non-marriage, element.

This claim of error was never raised in the trial court except by defense counsel's objection to the amendment to the information. Appellant did not include any allegation of error relating to the amendment to the information in his motion for a new trial. Nonetheless, this court must consider the point because it raises the question of jurisdiction.

When the prosecutor made his motion to amend, defense counsel first said she had no objection and then a few minutes later said she wanted to object. The trial court ruled that it would permit an amendment to conform with evidence which had been received without objection. Trial evidence of both elements was received without objection.

When the state, three months later, filed its written motion it included both the non-marriage and the lack of consent element. The written motion was granted by the court.

It could be argued that the amendment supplying the lack of consent element was not made prior to the verdict as required by Rule 23.08, but this court construes the trial court's grant of the oral motion to amend prior to the verdict to include permission to add to the information all missing elements, evidence of which was received without objection. There was no error in allowing the amendment to the information under the facts in the present case.

To say the appellant was not apprised of the elements of the sodomy charge would be to stretch credulity and exalt form over substance. Appellant was charged with both rape and sodomy which arose out of the same incident. The rape information contained all the elements which were missing from the initial sodomy charge. Appellant's defense was alibi, not that the victim had consented. The evidence of all elements of the crime came in without objection. The trial court granted the motion to amend to include all of the elements. There was no error.

This court could find no cases which speak directly to the question of jurisdiction to try a case under a defective information which was amended to supply missing elements of a crime after the close of the evidence, but before the verdict.

Rule 23.08, however, permitting an amendment any time before a verdict, carries the strong implication that the jurisdiction exists provided the amendment charges no different or additional offense and does not prejudice the substantial rights of the defendant. See State v. Jackson, 604 S.W.2d 832, 835 (Mo.App.1980).

This court finds the trial court had jurisdiction to try the cause in view of the amendment to the information which was permitted in accordance with Rule 23.08.

Page 273

The cases in which amendments to informations were challenged and approved by the trial court, but where the jurisdiction issue was not raised, are written on the assumption there is jurisdiction as long as allowing the amendment is not error.

In State v. Gardner, 522 S.W.2d 323 (Mo.App.1975), the court held that the state could amend its information after its case-in-chief to add the essential element of intent to kill or do great bodily harm to its attempted charge of assault without malice, § 559.190 RSMo. 1969. "The effect of the amendment was merely to charge correctly and sufficiently the offense attempted to be charged in the original information and did not operate to prejudice the substantial rights of the defendant." 522 S.W.2d at 324[1, 2]. See also State v. Jackson, supra. Research disclosed from other jurisdictions only one case which is arguably relevant to the present case; Shanklin v. State, 369 So.2d 620 (Fla.App.1979).

There, Shanklin had pled guilty to the charge of battery of a law enforcement officer. The information, however, omitted the element of knowingly striking a law enforcement officer. Shanklin was placed on probation pursuant to his guilty plea.

During his later parole revocation hearing, Shanklin contended that his conviction was a nullity because the court lacked jurisdiction to place him on probation in that the element of knowingly striking a law enforcement officer was missing from the information. The Florida Court of Appeals rejected Shanklin's [appellant's] contention:

On the same rationale, we hold that appellant's plea of guilty to the crime of battery of a law enforcement officer, after the state had properly laid a factual basis, constituted a tacit amendment of the information to properly charge that offense. Once the information is deemed to have been amended, jurisdiction is no longer a problem, and the...

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