State v. Wilson

• Decision Date: 29 November 1976
• Docket Number: No. KCD,KCD
• Citation: 544 S.W.2d 859
• Parties: STATE of Missouri, Respondent, v. Robert WILSON, Appellant. 28262.
• Court: Missouri Court of Appeals

Page 859

544 S.W.2d 859

STATE of Missouri, Respondent, v. Robert WILSON, Appellant.

No. KCD 28262.

Missouri Court of Appeals, Kansas City District.

Nov. 29, 1976.

Rehearing Denied Dec. 27, 1976.

Forrest P. Carson, Jefferson City, for appellant.

John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Defendant was convicted of second degree burglary and stealing and was sentenced under the second offender act to imprisonment for five years on each charge, the sentences to run consecutively. He asserts basically three arguments on appeal: (1) that the trial court erred in allowing amendment of the information on the first day of trial while denying defendant's motion for continuance; (2) that the court erred in assessing the punishment itself rather than submitting the issue to the jury because there was no proof of imprisonment as required by the second offender act; and (3) the evidence was not sufficient to support the conviction.

The record shows that on the evening of Saturday, May 25, 1974, Max Trimble picked up defendant and the two drove around in Trimble's automobile. During the evening there had been some drinking, and they had picked up defendant's sister and three of her friends but had left them off by 11:00 o'clock.

According to Trimble, at about 11:30 or 12:00 o'clock, defendant told him to drive to Westminister College and park in front of Sweazy Hall so that defendant could relieve himself. Trimble parked on the street in front of the building and defendant got out, walked up to the building, and shook the front door but could not get into the building. Defendant returned to the car and instructed Trimble to drive further down the street and into the parking lot behind Sweazy Hall, which he did. Thereupon, Trimble turned off the ignition but left the lights on. Defendant grabbed the car keys and headed toward the building. Trimble saw the defendant walk down the stairs in a stairwell on the side of the building. Five or ten minutes later, defendant emerged from the stairwell with a box 2 square, a towel and some books, put the items in the back seat of the car, gave Trimble the keys and told him to drive.

They left the parking lot and proceeded along a route designated by the defendant. According to Trimble, the two saw the lights of an approaching car and the defendant, thinking it was the police, 'told me not to stop or he'd kill me.' Trimble drove straight through the stop sign as he was instructed and as their car was half-way across the intersection, the car whose lights they had seen collided with them. The impact threw Trimble's car into the ditch and partway up the bank. Defendant jumped out of the car and told Trimble to 'get rid of the stuff.' Trimble threw the box and then the other items ten or fifteen feet up the high bank and into an area of tall grass, brush and weeds. Defendant drove the other driver to the hospital in her car, and Trimble walked to a house down the road, where he asked the owner to summon the police. When the police arrived at the scene of the accident, Trimble told them the whole story immediately, and showed them the items in the weeds on the bank. The box, containing a stereo, along with a towel and a book, were later retrieved by the police, and were identified by Dewey Markham, a student at Westminister College, as belonging to him. He had left them in a storage room in the basement of Sweazy Hall.

Pete Busalacki, the dormitory counselor for Sweazy Hall, testified that he had locked the door to the storage room on Friday, the evening before the theft, and at that time he had seen stereo equipment in the room. He also testified that the storage room could be unlocked and opened with such common items as a key, a clothes hanger, or a plastic credit card. Although he did not know whether the outside door to the dormitory was locked, he was sure that the storage room was locked.

The only further evidence on behalf of the prosecution was four letters addressed to various students at Wetminister College, one of which was postmarked Thursday, May 23, just two days before the burglary. Busalacki testified that all of the student mail at that time was delivered to Sweazy Hall. When defendant was arrested and booked, the four letters were found in his right hip pocket.

I.

The original information charged defendant with breaking into a dormitory, Sweazy Hall. On the morning of the first day of trial, the State requested and was granted leave to amend the information. The amended information charged defendant with breaking into a storage room in the dormitory, Sweazy Hall, which was identified as a dwelling house. After allowing the amendment, the court refused to grant defendant a continuance and it is the amendment coupled with this refusal which defendant claims as his first assignment of error. He contends the amended information substituted a different charge in that it alleged the offense occurred in a 'different place.'

Under Rule 24.02, the amendment or substitution of an information is permissible at any time before the verdict is returned if 'no . . . different offense is charged and if substantial rights of the defendant are not prejudiced.' The ultimate question is one of prejudice. O'Neil v. State, 502 S.W.2d 342 (Mo.1973). And the test of prejudice in this regard 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 (Mo.1964). Under a related rule pertaining to review of refusal of a trial court to grant a defense motion for continuance, the appellate court will not interfere unless it clearly appears that the ruling was an abuse of the sound discretion of the trial court and that the accused was prejudiced thereby. State v. Kelly, 365 S.W.2d 602, 606 (Mo.1963); State v. Le Beau, 306 S.W.2d 482 (Mo.1957).

As noted by the trial judge in ruling on the motions, both the original and also the amended informations charged defendant with burglary in the second degree. Further, the factual situation upon which the charges were based is identical. The original information accused defendant of forcibly entering Sweazy Hall on May 26, 1974, in order to steal a stereo, and a towel deposited there; and the amended information modifies that charge only to the very minor extent of alleging that he forcibly entered a storage room inside that dormitory on the same stated date in order to steal the same described items. Under both versions of the information, the essence of the charge remained the same. See State v. Drake, 512 S.W.2d 166, 173 (Mo.App.1974).

Mention should also be made that evidence had been introduced by the State at the preliminary hearing that the stolen items had been deposited in the locked storage room. Defendant objects that this evidence should not be considered as eliminating surprise, because trial counsel (who is also counsel on this appeal) was not counsel at the preliminary hearing. Nevertheless, defendant himself heard the testimony at the preliminary hearing. Furthermore, counsel at the preliminary hearing was apparently cooperative with and informative to present counsel, as shown by the fact that present counsel called the earlier counsel as a trial witness and used his testimony of what Trimble said at the preliminary hearing, in an effort to impeach that prosecution witness.

The defendant has failed to specify any meaningful prejudice he suffered from the allowance of the amendment and refusal of the continuance, and this court sees none. The trial court did not abuse its discretion in these respects.

II.

Defendant's second point alleges that the court erred in applying the second offender act, because the State failed to prove that defendant was actually imprisoned following his earlier conviction. In order to try a defendant as a second offender, the statute requires the that State plead and prove, and the court find that (1) the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary, and (2) that he was subsequently imprisoned, fined, paroled or placed on probation. State v. Garrett, 416 S.W.2d 116, 120 (Mo.1967); State v. Wiley, 412 S.W.2d 485, 487 (Mo.1967). These necessary facts were pleaded in this case and evidence was adduced by the State in the form of certified court orders of defendant's conviction and sentence on the same day for the commission of two felonies, certificates of commitment to the Department of Corrections, and testimony of a Deputy Sheriff that he had transported defendant to the Department of Corrections in Jefferson City under those commitments.

The defendant asserts that because the records of the Department of Corrections were not introduced into evidence, the element of imprisonment was not proven. He cites in support State v. Wiley, 412 S.W.2d 485 (Mo.1967). That case states that such records may be used as proof of prior convictions under the act, but does not hold that such records are the only proof thereof.

In response to defendant's present objection, the trial court found that 'the evidence is that he was delivered to the Department of Corrections. I think that would provide a basis for reasonable...