STATE OF MISSOURI v. LORANDIS M. PHILLIPS

• Court: Missouri Court of Appeals
• Decided: September 8, 2023
• Docket: SD37382
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division

STATE OF MISSOURI, ) ) Respondent, ) ) No. SD 37382 v. ) ) Filed: September 8, 2023 LORANDIS M. PHILLIPS, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY

Honorable David A. Dolan, Judge

AFFIRMED

Lorandis Phillips (“Appellant”) was found guilty of the class A felony of robbery in

the first degree1 and the class D felony of assault in the second degree. 2 He raises seven

points on appeal: three related to his lack of counsel at an appearance prior to the

preliminary hearing, two related to the amendment of the felony information, one

claiming insufficiency of the evidence on the robbery charge, and one claiming a

deficiency in the second-degree assault charge. We affirm.

1 Section 570.023. All statutory references are to RSMo (2016). 2 Section 565.052. Background3

On December 14, 2018, four men were smoking marijuana and listening to music

in a shed behind Appellant’s house. One of them, whom we will refer to as “Victim,” had

his back to the door. Appellant texted, “You ready[,]” and one of the men in the shed

replied, “Yeah. Come.” Appellant then entered the door, came up behind Victim, and

struck him in the head, causing him to fall to the floor and briefly lose consciousness.

More than two persons kicked and struck Victim while he was on the floor, then

rummaged through his pockets and stole his phone, wallet, and car keys. Victim

eventually ran to a nearby store, where employees contacted the police.

During a consensual search of the property where Appellant lived, police found

blood and a marijuana cigarette on the shed floor. While police were searching the shed,

Appellant texted, “Is he out there[,]” to which one of the men who had been present in the

shed replied, “Nope.” Police also found Victim’s cell phone on Appellant’s bed and the

SIM card for Appellant’s phone on a pedestal at the top of the stairs leading to Appellant’s

bedroom.

Appellant told police he had been away from home and had arrived “after

everything had happened.” He gave the police the names of alibi witnesses who would

corroborate he was at band practice and not at home at the time of the robbery. One of

those witnesses said she knew nothing and did not want to get involved, a second

witnesses said he never saw Appellant that evening, and a third said he had seen Appellant

at band practice but Appellant had left “real early.”

3 Because one of Appellant’s challenges is to the sufficiency of the evidence, we relate the facts in the light

most favorable to the judgment. State v. Sinks, 652 S.W.3d 322, 336 (Mo.App. 2022).

2 After the robbery, Appellant texted one of the men who had been present in the

shed, “Hey, so what you going to say?” The other man texted, “I’m going to say some dude

just came in and hit us[,]” to which Appellant replied, “Don’t say that.” Two of the men

who were in the shed at the time of the robbery initially told police that some person had

entered the shed and assaulted Victim. They later told police Appellant had been the

assailant.

On December 19, 2018, a warrant was issued for Appellant’s arrest and the amount

of bond was set. The next day, the warrant was served and the state filed a felony

complaint against Appellant. On December 21, Appellant posted bond. A docket entry

indicates “Arraignment Scheduled” for January 9, 2019. On that date, the court’s docket

entries reflect Appellant appeared in person without counsel, waived formal arraignment,

and entered a plea of “Not Guilty.” We will refer to the proceeding that occurred on that

date as the “Hearing.”

Counsel entered an appearance on behalf of Appellant on January 28, 2019, and

appeared with him at the next court appearance on February 19, 2019. A felony

information was filed on March 11, 2019, charging Appellant with second-degree robbery

in violation of § 569.030,4 second-degree assault, and felony stealing. At a brief hearing

on April 11, 2019, Appellant appeared with counsel “for arraignment[,]” and counsel

“waive[d] formal arraignment and enter[ed] a plea of not guilty.”

The state filed an Amended Information ten days prior to trial. The original

information had alleged forcible stealing causing serious physical injury, which, if proven,

would satisfy the necessary elements for a charge of first-degree or second-degree

4 Prior to the date of the alleged robbery, Section 569.030 had been transferred to § 570.025 as part of the

revision and reorganization of Missouri’s Criminal Code effective January 1, 2017.

3 robbery. The Amended Information upgraded the robbery charge to first-degree, but the

factual allegations remained identical to those in the original information. The second-

degree assault count remained unchanged. The felony stealing count was dismissed in

exchange for Appellant’s waiver of jury trial. Appellant lodged no objection to the

Amended Information. The court accepted the Amended Information, Appellant was

arraigned on the amended charges, and a bench trial commenced on the first-degree

robbery and second-degree assault charges in the Amended Information.

At trial, Appellant and his sister testified that Appellant was at band practice and

not at home at the time of the robbery. In summation, defense counsel stated,

“[Appellant’s] contention remains that he was not there[,]” and he argued that the co-

defendants’ testimony was not reliable. Appellant was found guilty moments after closing

arguments. The court generally did not find the alibi testimony persuasive, specifically

stating, “[T]he primary alibi witness . . . didn’t help the [Appellant’s] case at all.”

Appointment of Counsel (Points One and Two)

Appellant first contends that the court erred in failing to appoint him counsel for

the Hearing, violating Rule 31.025 and his constitutional right to counsel at critical stages

of his criminal proceedings.

The Hearing clearly was Appellant’s initial appearance before the court, subject to

the procedures and requirements in Rule 31.02, including “the right to appear and defend

. . . by counsel.” But the attachment of the right to counsel does not automatically render

any pretrial hearing one at which counsel’s presence is required. State v. Woolery, No.

85530, slip op. at *4 n.9 (Mo.App. W.D. June 27, 2023). The U.S. Constitution requires

5 Unless otherwise indicated, Rule references are to Missouri Court Rules (2019).

4 the appointment of counsel within a reasonable time to allow for adequate representation

at any “critical stage” before trial and at trial. Rothgery v. Gillespie Cnty., Tex., 554

U.S. 191, 212 (2008). A “critical stage” involves a trial-like confrontation during which

counsel could assist with legal issues or in meeting the adversary’s challenge. Id. at n.16.

Rule 31.02(a) anticipates at least some defendants will be self-represented at their

initial appearance before a judge. The absence of counsel does not compel the

appointment of counsel before proceeding with the initial appearance; rather, it triggers

the court’s duty “to advise [the defendant] of his right to counsel, and of the willingness

of the court to appoint counsel to represent him if he is unable to employ counsel.” Rule

31.02(a). Appointment of counsel is required only after a showing of indigency or when

the gravity of the offense charged or other circumstances affecting the defendant are such

that failure to appoint counsel may result in injustice to the defendant. Rule 31.02(a).

The Hearing was an initial appearance but it was not an arraignment as Appellant

contends. “[A]rraignment shall consist of reading the indictment or information to the

defendant or stating to him the substance of the charge and calling on him to plead

thereto. He shall be given a copy of the indictment or information before he is called upon

to plead.” Rule 24.01. The docket entries use the label “arraignment” and reflect a “Not

Guilty” plea was entered; however, no indictment or information had been filed by the

state prior to the Hearing. Regardless of the “arraignment” label, a trial court cannot hold

a proper arraignment until after the state has filed an information or indictment. State

v. Heidbrink, 670 S.W.3d 114, 134 (Mo.App. 2023). The record reflects that a felony

information was not filed until March of 2019 and the hearing at which Appellant actually

waived formal arraignment and entered a “Not Guilty” plea occurred in April of 2019. The

Hearing in January of 2019 was not an arraignment.

5 Even if the Hearing had been an arraignment, the Supreme Court of Missouri has

repeatedly stated that arraignment is not a critical stage in a criminal proceeding and

therefore the absence of counsel does not violate due process absent a showing of

prejudice to the accused. Woolery, slip op at *5 and cases cited therein. If an

arraignment is not deemed a critical stage per se, then an initial appearance, which is not

subject to the formalities and procedures of an arraignment hearing or trial-like

confrontation, also would not qualify as a critical stage for counsel appointment purposes

unless a defendant could show he was prejudiced by the absence of counsel.

In this case, Appellant has not shown any recognizable prejudice, i.e. that he lost

any rights or defenses, that the state gained an advantage, or that the lack of counsel at

the Hearing deprived him of a fair trial. See id. at *6. He also has not shown that he was

indigent and would have qualified for appointed counsel. Instead, the record shows

Appellant knew he could hire an attorney to represent him and he had the means to do so

because counsel entered an appearance 19 days after the Hearing and appeared with

Appellant at his arraignment and preliminary hearing. As in Woolery, counsel made no

complaint about Appellant appearing without counsel at the Hearing, and no defenses

had been foreclosed to Appellant before counsel entered an appearance. Id. Points One

and Two are denied.

Record of the Hearing (Point Three)

The Hearing was not recorded and therefore could not be transcribed for review

on appeal. Appellant argues the failure to record the Hearing precludes meaningful

appellate review because he cannot prepare and file “all of the record, proceedings and

evidence necessary to the determination of all questions to be presented . . . to the

6 appellate court for decision.” Rule 81.12(a) (2022). He requests the case be remanded to

make a proper record.

We deny this point for three reasons. First, as set forth in our discussion of Points

One and Two, we are not convinced that the Hearing qualifies as an “arraignment.”

Second, Appellant has not shown that he waived counsel at or prior to the Hearing, an

express condition necessary to trigger the preservation requirement in Rule 31.02(b).

Finally, and perhaps most importantly, the absence of a transcript or recording of the

Hearing did not hamper our ability to meaningfully review Points 1 and 2 as presented.

See Woolery, slip op at *7 (When an appellant requests remand due to noncompliance

with Rule 31.02(b), the relevant question is whether the absence of a transcript or

recording hampers the appellate court’s ability to meaningfully review the points raised

on appeal.). Point Three is denied.

Amended Information (Points Four and Five)

Appellant next contends the court erred in permitting the state to amend the felony

information.

“Typically, we review the decision to allow leave to file an amended charging

document for abuse of discretion.” State v. Nelson, 505 S.W.3d 437, 442 (Mo.App.

2016). Rule 23.08 (2021) permits the amendment of an information “at any time before

verdict or finding if: (a) No additional or different offense is charged, and (b) A

defendant’s substantial rights are not thereby prejudiced.” To preserve a claim that the

court erred in permitting amendment of an information, a defendant must make a

specific, contemporaneous objection. Id. Appellant did not do so; therefore, appellate

review, if any, would be for plain error under Rule 30.20. Id.

7 “Plain error review is discretionary, and this Court will not review a claim for plain

error unless the claimed error ‘facially establishes substantial grounds for believing that

manifest injustice or miscarriage of justice has resulted.’” State v. Brandolese, 601

S.W.3d 519, 526 (Mo. banc 2020) (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc

2017)). Appellant has not satisfied this threshold to obtain plain error review.

Appellant contends his alibi defense was frustrated by the amendment of the

robbery charge, but an alibi defense was equally available to Appellant under a charge of

either first-degree or second-degree robbery. The defense was not precluded (1) from

cross-examining the state’s witnesses about Appellant’s alibi, (2) from presenting their

own alibi witnesses, or (3) from arguing alibi in summation. The court’s remarks after

summation and before the finding of guilt indicate the court considered, but was not

persuaded by, the alibi evidence.

Appellant further contends the court’s decision was erroneous in that he was

entitled to, but did not receive, a preliminary hearing on the Amended Information

pursuant to § 544.250. Contributing to this error was the prosecutor’s misstatement to

the court that Appellant had been bound over from associate court on a first-degree

robbery charge. Yet Appellant makes no argument that the outcome of the trial would

have been different if he had received the benefit of another preliminary hearing on the

same robbery facts that had already been considered. The elements charged and facts

alleged in the original information could have constituted first-degree robbery even

though it was charged as second-degree robbery.

“[H]aving reviewed and considered the record on appeal, the parties’ briefs, and

the alleged trial errors for which plain error review is requested, [Appellant] has failed to

8 persuade us that we should exercise our discretion to engage in plain error review.” State

v. Sinor, 593 S.W.3d 113, 116 (Mo.App. 2020). Points Four and Five are denied.

Sufficiency of Serious Physical Injury Evidence (Point Six)

The state alleged Appellant forcibly stole from Victim “and in the course thereof

[Appellant] caused serious physical injury” to Victim. There is no question Victim

sustained physical injuries during the robbery. Appellant acknowledged the injuries and

defense counsel commented, “[It] is rather obvious that [Victim] was [injured].”

Appellant contends the state did not meet its burden to prove Victim’s physical injuries

were “serious,” as is required for a first-degree robbery conviction.

We review to determine “whether there was sufficient evidence from which a

reasonable fact-finder could have found each element of the offense to have been

established beyond a reasonable doubt.” State v. Tilton, 660 S.W.3d 500, 502

(Mo.App. 2023). We accept as true all evidence and inferences favorable to the judgment,

and we disregard all evidence and inferences to the contrary. Id.

“Serious physical injury,” as defined in § 556.061(44), “can be described as

consisting of three categories of injuries: (1) physical injury ‘that creates a substantial risk

of death;’ (2) physical injury ‘that causes serious disfigurement;’ or (3) physical injury that

causes ‘protracted loss or impairment of the function of any part of the body.’” State v.

Carpenter, 592 S.W.3d 801, 805 (Mo.App. 2019) (quoting State v. Hughes, 469

S.W.3d 894, 900 (Mo.App. 2015)).

The record, when viewed in the light most favorable to the court’s decision,

contains sufficient evidence from which the court could have reasonably found that

Appellant created a substantial risk of death to Victim, thereby satisfying the element that

Defendant caused serious physical injury. Appellant sucker punched Victim in the back

9 of the head, causing him to fall to the ground, briefly lose consciousness, break an orbital

bone, and break his nose. Appellant and the co-defendants then continued to beat Victim,

who was unable to get up until after the beating stopped.

“Considerable precedential authority establishes that a defendant strangling or

striking the victim to a loss of consciousness supports a . . . finding that serious physical

injury occurred.” State v. Madrigal, 652 S.W.3d 758, 767 (Mo.App. 2022). Punching

the victim’s head with a fist, victim’s loss of consciousness from an aggressor’s attack, and

an aggressor’s continual infliction of injuries on a victim after the victim’s loss of

consciousness have all been factors that supported findings of “serious physical injury.”

State v. Hall, 561 S.W.3d 449, 453 (Mo.App. 2018), and cases cited therein. See also

State v. Norwood, 8 S.W.3d 242 (Mo.App. 1999) (serious physical injury resulted from

defendant striking the victim in the back of the head, causing victim to fall to the ground

and lose consciousness, followed by defendant stomping on victim’s head twice).

The degree of physical injury was a fact question for the trial judge. State v.

Fuller, 267 S.W.3d 764, 766 (Mo.App. 2008). “We do not reweigh the evidence, but

determine only if the conviction is supported by sufficient evidence. The cases cited above

so indicate.” Id. (internal citation omitted). Point Six is denied.

Sufficiency of Second-Degree Assault Charge (Point Seven)

In both the original and amended information, the state alleged that Appellant

committed second-degree assault in that he “knowingly caused physical injury to [Victim]

by hitting him in his face and body causing multiple lacerations and sever[e] bruising to

his face and both legs.” Appellant contends the charge was insufficient because it did not

contain an allegation that the injuries were caused “by means of deadly weapon or

dangerous instrument,” an essential element of second-degree assault under

10 § 565.052.1(2). Appellant argues the state only alleged facts that, if proven, would have

constituted third-degree assault under § 565.054, a class E felony.

“Whether a charging document is sufficient to state an offense is a question of law,

which we review de novo.” State v. Hendricks, 619 S.W.3d 171, 183 (Mo.App. 2021).

In determining sufficiency, we look at the information from its four corners and in its

entirety. State v. Wright, 431 S.W.3d 526, 533 (Mo.App 2014).

As stated in State v. Rohra,

The purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of an acquittal. A challenge to the sufficiency of a charging document tests whether it alleges the essential elements of the offense and clearly apprises the defendant of facts constituting the offense.

545 S.W.3d 344, 347 (Mo. banc 2018) (internal citation, footnote, and punctuation

omitted). “Where the information expressly refers to a statutory section that contains the

elements of the crime, the information is not fatally insufficient even if the information

itself does not repeat all of the elements of the offense.” Hendricks, 619 S.W.3d at 183

(quoting State v. Allen, 905 S.W.2d 874, 879 (Mo. banc 1995)).

An objection to the sufficiency of the charging document typically would be raised

prior to trial. In this case, the issue was raised for the first time on appeal.6 While the

timing does not preclude our review on the merits, it does narrow our scope of review.

State v. Sparks, 916 S.W.2d 234, 237 (Mo.App. 1995).

[W]hen a defendant objects to the sufficiency of the charging document only after he already has been convicted, the charging document will be deemed insufficient only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was

6 Appellant argues his oral motions for directed verdict and written motions for judgment of acquittal raised

this issue. The oral motions included no substantive argument and the written motions were cookie-cutter documents containing only bare generalities, which did not apprise the circuit court of any objection to or defect in the Amended Information.

11 convicted, or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced. The defendant also must establish actual prejudice.

State v. Collins, 328 S.W.3d 705, 708 n.4 (Mo. banc 2011) (internal citations and

punctuation omitted).

Appellant’s construction of the charge is reasonable, but not to the exclusion of

another reasonable construction: that the state intended to prove Appellant knowingly

caused serious physical injury to Victim. Section 565.052.1(3) provides that a person

commits second-degree assault if he or she “[r]ecklessly causes serious physical injury to

another person.” Although “recklessly” and “knowingly” are different mental states, the

former, being the less culpable, is encompassed within the latter. “When recklessness

suffices to establish a culpable mental state, it is also established if a person acts purposely

or knowingly.” Section 562.021.4.

While we do not condone the omission of “serious” before “physical injury” in the

charge, the Amended Information, considered in its entirety, put Appellant on notice that

the state intended to show Appellant caused serious physical injury to Victim. Appellant

had adequate notice and opportunity to prepare a defense contesting the seriousness of

Victim’s physical injuries on the robbery charge. Such a defense also would have been a

defense against the second-degree assault charge. Moreover, the main defense Appellant

chose to pursue, alibi, would have been equally effective regardless of which degree of

assault was charged, had the court been persuaded by that defense.

The second-degree assault charge, though not ideal, provided adequate notice to

Appellant so that he had the opportunity to prepare a defense and to prevent retrial on

the same charge in the case of acquittal. Furthermore, Appellant has not convinced us

12 that the court’s decision would have been different if the state had pleaded the second-

degree assault charge more precisely. Point denied. Judgment and convictions affirmed.

JACK A. L. GOODMAN, C.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

GINGER K. GOOCH, J. – CONCURS