State v. Tygart

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN; GREENE
• Citation: State v. Tygart, 673 S.W.2d 83 (Mo. App. 1984)
• Decision Date: 30 May 1984
• Docket Number: No. 13329,13329
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William TYGART, Defendant-Appellant.

Page 83

673 S.W.2d 83

STATE of Missouri, Plaintiff-Respondent, v. William TYGART, Defendant-Appellant.

No. 13329.

Missouri Court of Appeals,

Southern District,

Division One.

May 30, 1984.

H. Jack Hoke, Wood, Hudkins & Hoke, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Deborah Neff, John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Presiding Judge.

A jury found defendant William Tygart guilty of selling marijuana and he was sentenced to 30 years' imprisonment. Defendant appeals.

The date of the offense was February 20, 1981. Two days before the trial the state filed an amended information charging that defendant was both a prior drug offender [§ 195.200.1(5) ] ¹ and a persistent offender [§ 558.016.3]. That information alleged that on October 31, 1960, defendant pleaded guilty to the charge of felonious stealing in Texas. It also alleged that on March 21, 1974, defendant was found guilty of the felonious possession of restricted drugs in Jackson County. An earlier information pleaded the Texas conviction and also pleaded that on March 21, 1974, defendant was found guilty in Jackson County of the felony of carrying a concealed weapon.

Defendant's first point is that the trial court erred in finding him to be a persistent offender for these reasons: (1) it was improper for the trial court to permit the information to be amended to state that the Missouri conviction was for possession of restricted drugs rather than, as previously charged, for carrying a concealed weapon; (2) the evidence was insufficient to identify defendant as the person who committed the Texas felony; (3) it was improper for the trial court to inform the prosecutor of a typographical error with respect to the dates of the Texas offense and conviction because, in so doing, the trial court "laid aside its detached impartiality"; (4) defendant was deprived of his right to trial by jury in that the jury was not allowed to decide the fact issue of whether the defendant was the person convicted of the prior crimes.

On the morning of the trial, and before it began, defense counsel ² was given a copy of the amended information. Counsel requested, and was granted, a brief recess so he could discuss the amended information with the defendant. At the conclusion of that recess defense counsel stated: "We have had an opportunity to look at the amended information and we will waive a formal reading of it." The state then offered, and the court received into evidence, state's Exhibit 1, an authenticated and certified copy of the Texas conviction, and state's Exhibit 2, an authenticated and certified copy of the Missouri conviction. Defense counsel made no objection to either exhibit.

After voir dire examination, and outside the presence of the jury, the court held a hearing with respect to the prior convictions. The court called the prosecutor's attention to the fact that, according to Exhibit 1, the date of the Texas offense was October 31, 1969, and the date of the guilty plea was March 16, 1970, and said, "Obviously your date in the information is 10 years off."

The prosecutor then requested leave to amend the information to show the correct dates and the request was granted. The prosecutor commented, without denial from defense counsel, that "in the course of pre-trial discovery, this information was disclosed to the defendant. He was aware what the document stated and it was a typographical error obviously."

The court inquired of defense counsel whether he wanted to be heard on the request to amend by interlineation and counsel replied, "Well, I think basically, your Honor, it's too late to do so. The jury has been sworn, ready to go." Defense counsel made no objection to the request to amend nor was there a claim or showing of prejudice in permitting it.

"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." Rule 23.08. The invocation of the Persistent Offender Act does not charge a different or additional offense. State v. Jackson, 627 S.W.2d 880, 882 (Mo.App.1982); State v. Leake, 608 S.W.2d 564, 565 (Mo.App.1980). In the absence of a claim or showing of prejudice, the trial court did not err in permitting the state, on the morning of the trial, to amend the information to charge the defendant with being a persistent offender or prior drug offender. State v. Goree, 633 S.W.2d 758 (Mo.App.1982); State v. Porter, 619 S.W.2d 892 (Mo.App.1981). See also State v. Wooten, 606 S.W.2d 810 (Mo.App.1980). Further, where an information adequately charges the defendant with being a persistent offender, the trial court may permit the information to be amended so as to correct the date of a prior felony conviction. Such an amendment does not prejudice the defendant. State v. Reid, 645 S.W.2d 736, 737 (Mo.App.1983). Defense counsel, who made no objection to the amendment, made the inaccurate statement that it came too late because the jury had been sworn. Rule 23.08 permits the information to be amended at any time before verdict or finding and this amendment was made before the trial court made its findings with respect to the prior convictions and before the verdict.

The trial court properly permitted the information to be amended by alleging that the Missouri conviction was for possession of restricted drugs and deleting the reference to the conviction for carrying a concealed weapon.

In attacking the sufficiency of state's Exhibit 1 to show defendant's Texas conviction, defendant's brief states that the exhibit "consists of an authenticated judgment from State of Texas for one William Earl Tygart; the records from Texas contain no further information from which the trial court could conclude that the defendant and William Earl Tygart were one and the same person nor did the state present any evidence in this regard."

The instant information named defendant as William Tygart. The Texas judgment named him as William Earl Tygart. State's Exhibit 2, the Missouri conviction which defendant does not challenge, names the defendant as William E. Tygart. Where defendant's first name and last name are the same as the first name and last name shown on the record of the previous conviction, the state has made a prima facie showing of identity. State v. Michael, 361 S.W.2d 664, 666 (Mo.1962); State v. McMillan, 593 S.W.2d 629, 635 (Mo.App.1980). In McMillan the court said: "A person's middle name has little, if any, legal significance." Defendant made no claim in the trial court that he was not in fact the person named in the Texas conviction and he offered no evidence to refute the state's prima facie showing. The evidence was sufficient to sustain the finding of the trial court that defendant was the person named in the Texas conviction. State v. Fields, 616 S.W.2d 86 (Mo.App.1981); State v. Patterson, 598 S.W.2d 483, 489 (Mo.App.1980).

It should be pointed out that defendant's status as a prior drug offender, § 195.200.1(5), was proven by the showing of the Missouri conviction, state's Exhibit 2, the adequacy of which defendant expressly concedes. That conviction, standing alone, authorized the punishment which was imposed.

This court holds that the evidence was sufficient to show that defendant was the person who committed the Texas felony.

Defendant's contention that the trial court erred in informing the prosecutor of a typographical error with respect to the dates of the Texas offense and conviction is frivolous. The court's comment, made outside the presence of the jury, was no doubt prompted by his comparison of state's Exhibit 1 with the amended information. Defense counsel made no objection to the court's comment at the time it was made and thus did not preserve the point for review. State v. Roddy, 604 S.W.2d 32, 33 (Mo.App.1980).

The general rule is that the trial court's remarks or suggestions, made outside the presence of the jury, do not deny the defendant a fair and impartial trial. State v. Newberry, 605 S.W.2d 117, 124 (Mo.1980). The trial judge did not act improperly by suggesting to the prosecutor, outside the jury's presence, that an obvious typographical error be corrected. Indeed he would have been derelict in his role if he had not volunteered the suggestion.

In receiving and determining the sufficiency of the evidence concerning the prior conviction the trial court followed the procedure prescribed by § 195.200, par. 7, and § 558.021.1, par. 2. Defendant claims that he was deprived of his right to trial by jury, Art. 1, § 18(a), Mo. Const., in that the jury was not allowed to decide the fact issue of whether defendant was the person convicted of the prior crimes. Defendant, in effect, seeks to challenge the two statutes.

Cases involving the validity of a statute of this state are within the exclusive appellate jurisdiction of the supreme court, Art. 5, § 3, Mo. Const., but defendant's failure to preserve the issue makes it unnecessary for this court to transfer this appeal to that tribunal. To preserve a constitutional issue for appellate review it must be raised at the earliest time consistent with good pleading and orderly procedure. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). Defendant failed to challenge the constitutionality of either statute prior to filing his motion for new trial and thus failed to preserve these issues for appellate review. State v. Harrelson, 636 S.W.2d 83, 87 (Mo.App.1982). Defendant's first point has no merit.

Defendant's second point is that the trial court erred in sustaining the prosecutor's objection to a question posed by defense counsel to the veniremen during voir dire. Defendant's brief fails to set forth the question, although it describes it as "a bit inarticulate" and then, somewhat inaccurately, paraphrases it. The ground of the prosecutor's objection was that the question was misleading....