State v. Wilkerson

• Decision Date: 16 August 1990
• Docket Number: Nos. 15771,16320,s. 15771
• Citation: State v. Wilkerson, 796 S.W.2d 388 (Mo. App. 1990)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Marcus Seaton WILKERSON, Defendant-Appellant. Marcus Seaton WILKERSON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 388

796 S.W.2d 388

STATE of Missouri, Plaintiff-Respondent, v. Marcus Seaton WILKERSON, Defendant-Appellant.

Marcus Seaton WILKERSON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 15771, 16320.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 16, 1990.

Rehearing Denied Sept. 7, 1990.

Craig A. Johnston, Columbia, for defendant-movant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury found Marcus Seaton Wilkerson guilty of possession of methamphetamine, a controlled substance, in violation of § 195.240, RSMo 1986. ¹ Wilkerson (defendant) was also found guilty of the unlawful use of a weapon in violation of § 571.030.1(1). The defendant's punishment was assessed at imprisonment for a term of five years for possession of methamphetamine and two years for the unlawful use of a weapon. It was ordered that defendant's sentences be served concurrently. Appeal No. 15771 is defendant's appeal from the judgments of conviction. The defendant timely filed a motion for postconviction relief pursuant to Rule 29.15, and after a hearing the motion court denied relief. Appeal No. 16320 is defendant's appeal from the order denying relief on his postconviction motion. The two appeals have been consolidated but will be considered separately.

Appeal No. 15771

The offenses of which defendant was convicted were committed during the evening--after dark--on August 30, 1987. Undercover officers were working "buy-busts" at a Ramada Inn in Newton County. The officers purchased an ounce of methamphetamine from one Anna O'Brien, and the circumstances of the sale led them to believe she had an accomplice nearby. Additional officers were summoned. The defendant was found in a pickup truck parked near the Ramada Inn. He was ordered to step out of the vehicle and he did so. One of the officers present conducted a "pat-down" search and discovered a large amount of cash--$3,500--on the defendant's person. The defendant was asked "where his gun was," and he replied, "it's just a .22, and it's in the truck."

The officers searched the pickup for a weapon. They discovered a "Crown Royal" bag underneath "the driver's side seat." ² They also found a wicker handbag on the seat of the pickup, and when the handbag was opened the officers discovered a fully loaded .22 caliber pistol. Further search of the Crown Royal bag yielded several plastic bags. Chemical analysis revealed that some of the plastic bags contained methamphetamine; one contained cocaine. This prosecution followed.

On the direct appeal, the defendant has briefed seven assignments of error. His first point is that the trial court erred to his prejudice in permitting the State to amend the first count of the information to charge an offense distinct and different from that originally charged. An amendment operating to charge an offense different from that charged in the original information is not, of course, permissible. Rule 23.08; § 545.300; State v. Gladies, 456 S.W.2d 23, 25 (Mo.1970).

For whatever reason, the State amended the first count of its information three times. On September 11, 1987, the defendant was charged with possession of methamphetamine in violation of § 195.240, R.S.Mo. He had a preliminary hearing on this charge. On October 1, 1987, an information was filed charging defendant, in Count I, with "felony sale" of methamphetamine in violation of § 195.020. On April 5, 1988, the first count of the information was amended to charge that the defendant, "while acting in concert with Anna O'Brien" committed the offense of possession of methamphetamine, in violation of § 195.020. On May 4, 1988, the first count was amended to read that:

"the defendant, while acting in concert with Anna O'Brien, in violation of Section 195.240 RSMo, committed the felony of possession of methamphetamine, a controlled substance ... in that on or about the 30th day of August, 1987, in the County of Newton, State of Missouri, the defendant knowingly possessed a controlled substance, to-wit: methamphetamine, and ..."

Defendant's trial counsel objected to the last amendment on the ground that the fourth information represented the "first time" the defendant had been charged with acting in concert with another. As we have said, the defendant now argues that the third amended information charged him with an offense distinct and different from that with which he was originally charged.

The State explained the several amendments of the first count of the information by stating that the original complaint filed in the case charged the defendant with possession of methamphetamine; after defendant was bound over, an information was filed which mistakenly charged the defendant with the sale of methamphetamine. When the information was first amended to charge possession, the pleader inadvertently included, according to the prosecutor, a reference to the "wrong" statute. On the day of trial, the State asked for and was granted permission to amend the information so as to charge that the defendant "acted in concert" with Anna O'Brien to possess methamphetamine. The prosecutor's explanation does not fully account for all three amended informations, but the only objection made by defense counsel to the final amendment was that the defendant "[had] not been arraigned on this charge of acting in concert with Anna O'Brien on the charge of possession."

If we accept the State's explanation of the reason for the last-minute amendment of the information, the amendment was not within the proscription of § 545.300 or Rule 23.08. Amendments made to correct the information filed are not prejudicial to the defendant. State v. Baker, 548 S.W.2d 572, 574 (Mo.App.1975). Moreover, the addition of the words "acting with another" or "acting in concert with another" did not substantially change the information. State v. West, 484 S.W.2d 191, 195 (Mo.1972); State v. Morgan, 546 S.W.2d 207, 208-209 (Mo.App.1977). As for the prejudice of which the statute and rule speak, 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 applicable after as well as before the amendment. State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964); State v. Rollie, 585 S.W.2d 78, 87 (Mo.App.1979). In this case, the defense tendered was that Wilkerson had not "cleaned out the inside of [his] pickup" for two weeks and was totally unaware of the presence of methamphetamine or other drugs under the seat. This defense would have been as applicable to and as effective against a charge of selling a controlled substance as it would have been against a charge of possession.

The defendant did not plead guilty to, nor was he found guilty of, an offense with which he was not effectually charged, as was true in Montgomery v. State, 454 S.W.2d 571 (Mo.1970), and State v. Couch, 523 S.W.2d 612 (Mo.App.1975). The confused record before us makes it appear that the amendment represented an attempt to charge correctly and sufficiently the offense intended to be charged in the original information and did not operate to prejudice the substantial rights of the defendant. See Johnson v. State, 485 S.W.2d 73, 75 (Mo.1972); State v. Gardner, 522 S.W.2d 323, 324 (Mo.App.1975). Further, the precedents make it reasonably clear that, under the law in effect when this case was tried, the offense of possession of a controlled substance was a lesser offense included in the sale of a controlled substance. See State v. Corley, 639 S.W.2d 94, 96 (Mo.App.1982); State v. Ashley, 616 S.W.2d 556, 560[6-8] (Mo.App.1981). A lesser included offense is not a different offense within the proscription of § 545.300 or Rule 23.08. State v. Amerson, 661 S.W.2d 852, 853 (Mo.App.1983). For this reason, if for no other, the first point is without merit.

The defendant's second assignment of error is that the trial court should have declared a mistrial sua sponte because in his summation the prosecuting attorney undertook to explain why particular persons had not been called as witnesses by the State. Admittedly, no objection was made to the argument now complained of. We are not inclined to give this point extended consideration.

In his summation, defendant's trial counsel advanced the argument that the State had not produced a single witness who could link the defendant to Anna O'Brien. The State's theory was that the defendant was O'Brien's accomplice, the argument ran, and why had the State called no witnesses who could link the two? The State responded at length. We will not repeat the arguments, but we are satisfied the State's closing argument was retaliatory and invited by the remarks of defense counsel. In such circumstances, our courts have generally refused to reverse the cause for improper argument. State v. Bellew, 586 S.W.2d 461, 463-64 (Mo.App.1979). The general rule applicable to this point is that a court should rarely grant relief on assertions of plain error as to closing argument. This is true because, in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo.banc 1988), cert. denied 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). The point is without merit.

Defendant's third point is that the prosecutor erroneously and prejudicially argued an improper construction of Instruction No. 10, which was MAI-CR 3d 331.20 properly adapted to the circumstances. Paragraph "Third" of the instruction requires a finding that the defendant was not traveling in a continuous journey peaceably through this state. This paragraph was added, of course, because carrying a concealed weapon is not unlawful if the accused is traveling in a continuous journey peaceably through this...