State v. Greathouse

789 S.W.2d 50, 1990 Mo. App. LEXIS 314, 1990 WL 17015
CourtMissouri Court of Appeals
DecidedFebruary 27, 1990
DocketWD 42078
StatusPublished
Cited by13 cases

This text of 789 S.W.2d 50 (State v. Greathouse) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Greathouse, 789 S.W.2d 50, 1990 Mo. App. LEXIS 314, 1990 WL 17015 (Mo. Ct. App. 1990).

Opinions

[51]*51GAITAN, Presiding Judge.

Defendant, William L. Greathouse, was convicted by a jury of assault in the third degree, a class A misdemeanor, in violation of Mo.Rev.Stat. § 565.070.1(1) (1986), and received a sentence of one hundred and eighty days in the county jail and a fine of two hundred and fifty dollars. The defendant appeals his conviction, contending that the trial court erred in: (1) granting the prosecution leave to file a first amended information on the day of the trial; and (2) overruling the defendant’s objection to the introduction of evidence regarding the issuance of two permits to acquire firearms applications and a permit to acquire firearms issued to the defendant’s brother-in-law. Judgment reversed and remanded.

Herbert Edmonds managed a trailer park where the defendant’s rented trailer home was located. He testified that on October 30,1988, at approximately 8:00 p.m., he and the owner of the rented trailer, Steven Crawford, drove in Crawford’s automobile to the defendant’s residence, in order to remove a light meter connected to the rental trailer; the defendant owed Crawford rent and the trailer park money for a past due electricity bill. After removing the meter, the two men went to Edmonds’ trailer, which was a short distance from the Greathouse trailer.

The defendant, who was in the trailer, immediately noticed the loss of electricity. He left his trailer and walked to the Ed-monds’ trailer to check on the power outage. The defendant confronted Edmonds, who was getting out of the Crawford automobile. Edmonds told the defendant that he and Crawford removed the meter for delinquent debts. Upon hearing the explanation, the defendant attempted to grab the meter, which Edmonds held in his hand. Edmonds testified that he and the defendant struggled; that the defendant struck him on the forehead with a semi-automatic pistol. The blow knocked Edmonds to the ground. As he fell, Edmonds struck a piece of metal pipe and allegedly suffered a broken rib. Crawford, responding to Ed-monds’ cry for help, grabbed the defendant and threw him against the side of a building. Crawford testified that he slipped and fell on the ground; that as he lay on the ground, the defendant pointed the pistol in his face and told him not to move. Despite the warning, Crawford got up and ran from the scene. The defendant grabbed the meter, which was on the ground, and returned to his trailer.

Edmonds returned to his trailer and called the police. Officers of the Riverside Public Safety Department responded to the scene. After speaking with Edmonds, the officers went to the Greathouse trailer, interviewed the defendant and frisked him. With the defendant’s permission, the officers searched his trailer for a semi-automatic pistol. They did not find a pistol, but found a box for a Raven .25 caliber semiautomatic pistol. After their investigation the officers issued to the defendant a general ordinance summons for assault.

Defendant Greathouse testified in his own defense, asserting that Edmonds assaulted him with a flashlight and that he acted in self defense. The defendant denied owning or possessing a gun.

In his first point, the defendant contends that the trial court erred in granting the prosecution leave to file a first amended information on the morning of the trial. The original information charged the defendant with a class C misdemeanor of assault in the third degree in that “the defendant knowingly caused physical contact with Herbert P. Edmonds, knowing that such person would regard such contact as offensive or provocative,” in violation of § 565.070.1(5). The amended information charged the defendant with a class A misdemeanor of assault in the third degree in that “the defendant recklessly caused physical injury to Herbert P. Edmonds by hitting him with his fists,” in violation of § 565.070.1(1). The defendant argues that the amended information charged him with a different and distinct offense than that which he was originally charged, thereby causing substantial prejudice to the defendant.

Rule 23.08 provides that “[a]ny information may be amended ... at any time before verdict or finding if no addi[52]*52tional or different offense is charged and if a defendant’s substantial rights are not thereby prejudiced.” See Mo.Rev.Stat. § 545.300 (1986). A judgment rendered on an amended information charging a different offense is a nullity because the impermissible amendment rises to a denial of due process of law. McKown v. State, 682 S.W.2d 38, 40 (Mo.App.1984). If an amended information charges a different offense, the amended information is inherently prejudicial. “It is patently and undeniably prejudicial to convict a person of a crime with which he has not been charged.” State v. Gladies, 456 S.W.2d 23, 25 (Mo.1970). Rule 23.08 is in the conjunctive thereby requiring that an information may only be amended if it charges no additional or different offense and is not prejudicial to the defendant’s substantial rights. Wickline v. State, 718 S.W.2d 604, 605 (Mo.App.1986). Thus, the first question presented by defendant’s point on appeal is whether § 565.070.1(1) is a different offense from § 565.070.1(5).

The elements of assault in the third degree, a class A misdemeanor as charged under § 565.070.1(1) are: (1) a reckless act which (2) causes physical injury. The elements of assault in the third degree, a class C misdemeanor as charged under § 565.070.1(5) are: (1) a knowing act which (2) causes physical contact which (3) the victim would find offensive or provocative. Physical contact is defined as the touching of the person of another or something so intimately associated with, or attached to his person to be regarded as a part thereof. 6A C.J.S. Assault and Battery § 70 (1975). The touching does not have to be in the form of a blow but may consist of any sort of contact. Id. Mo.Rev.Stat. § 556.061(20) (1986) defines physical injury as physical pain, illness or any impairment of physical condition. It is clear that these two terms describe different conditions required to have been caused by the defendant’s conduct.

In State v. Garms, 750 S.W.2d 702, 704 (Mo.App.1988), the eastern district held that § 565.070.1(5) was not a lesser offense of § 565.070.1(1). The court found that subsection (1) of § 565.070.1, which required reckless conduct causing physical injury, did not include any of the legal or factual elements of subsection (5), which required proof of a knowing act, physical contact, and a mental condition of the victim. See also State v. Boschert, 693 S.W.2d 128, 129 (Mo.App.1985) (physical injury is an element of § 565.070.1(1)). This Court agrees that subsections (1) and (5) do not contain any common, essential elements and, therefore, are two different offenses. Additionally, we note that the two offenses are of different classes, requiring different punishments. While punishment enhancement is not dispositive of a claim that offenses are different, see State v. Adams, 741 S.W.2d 781, 785 (Mo.App.1987) (First degree assault, Mo.Rev.Stat. § 565.050 (1986), can be either a class A or class B felony with the distinguishing factor being whether serious physical injury is inflicted on the victim.

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State v. Greathouse
789 S.W.2d 50 (Missouri Court of Appeals, 1990)

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Bluebook (online)
789 S.W.2d 50, 1990 Mo. App. LEXIS 314, 1990 WL 17015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-greathouse-moctapp-1990.