State v. Hutchinson

740 S.W.2d 184, 1987 Mo. App. LEXIS 4553, 1987 WL 3819
CourtMissouri Court of Appeals
DecidedAugust 11, 1987
Docket52320
StatusPublished
Cited by9 cases

This text of 740 S.W.2d 184 (State v. Hutchinson) 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. Hutchinson, 740 S.W.2d 184, 1987 Mo. App. LEXIS 4553, 1987 WL 3819 (Mo. Ct. App. 1987).

Opinion

REINHARD, Judge.

Defendant appeals after being convicted by a jury of five counts of first degree robbery and two counts of armed criminal action. He was found to be a prior offender and was sentenced to a term of imprisonment on Count I of 20 years; Count II, 20 years; Count III, 10 years; Count IV, 20 years; Count V, 20 years; Count VI, 20 years; and Count VII, 10 years. Counts I, II, III, IV and VII are to run consecutively, while Counts V and VI are to run concurrent with each other and concurrent with Counts I, II and IV for a total of eighty years. Defendant appeals. We affirm.

*185 The charged offenses occurred on the evening of October 24, 1985. The first incident, referred to in Counts I, II and III, took place outside the Clarion Hotel in downtown St. Louis at approximately 7:30 p.m., and the second, to which Counts IV, V, VI and VII pertain, occurred at a parking garage in the same area at approximately 8:00 p.m.

On the evening of October 24,1985, Richard LeGrand and Christine Messina arrived at the Clarion Hotel where they were to meet friends and watch a baseball telecast. Before they entered the building, they were approached by two men, one black, one white, wlio robbed them at gunpoint of $68 cash and change. Defendant took the victims’ money, while the other man held the gun. The men then fled in a southerly direction. Defendant was described by the victims as wearing light-colored pants, a blue jacket and a blue hat with a “Majie 108” logo sewn on it.

At approximately 8:00 p.m., in an elevated parking garage at 6th and Pine Streets, Mark and Susan Parres and Pat Lada were leaving their car when they were approached by two men, one white and one black. The men robbed the Parreses and Mrs. Lada at gunpoint of $231. The white man held the gun, and the black man took the money. They demanded the keys to Mrs. Lada’s car, which they used to attempt an escape. Defendant was described by the victims as wearing light-colored pants, a short-sleeved t-shirt and a blue hat with the “Majie 108” logo on it.

Mrs. Lada alerted a police officer on the street below the garage and was relating the event to him when she noticed defendant and his cohort exiting an elevator in the garage. Defendant was apprehended by the police officer; defendant’s accomplice ran and was captured a few blocks away by another officer. A routine search revealed that defendant had three bundles of money in his possession in denominations identical to the ones taken from the Parres-es and Mrs. Lada. After defendant was taken into custody, the police brought Mr. Parres and Mrs. Lada to the scene where they identified defendant as the man who had taken the money from them. Defendant was later identified at a police lineup by Mr. LeGrand and Ms. Messina as one of the men who had robbed them. Prior to their identification of defendant at the police lineup, the Parreses and Mrs. Lada discussed the incidents with LeGrand and Messina.

Defendant was indicted by a grand jury on seven counts. In Count I he was charged with first degree robbery from Christine Messina; in Count II with first degree robbery from Christine Messina; in Count III with armed criminal action; in Count IV with first degree robbery from Mark Parres; in Count V with first degree robbery from Susan Parres; in Count VI with first degree robbery from Pat Lada; and in Count VII with armed criminal action.

On the morning of the trial, defendant moved to dismiss the indictment or, in the alternative, to dismiss Counts I and II because both alleged a robbery from Christine Messina. He also filed a motion to sever Counts I, II and III from Counts IV, V, VI and VII. The motion to sever was denied and the state requested leave to file a substitute information in lieu of the indictment. The court overruled defendant’s motion to dismiss and granted leave to file the substitute information. Count II of the substitute information alleged a robbery from Richard LeGrand; in all other respects the substitute information was the same as the indictment.

Defendant first contends that the court erred in allowing the state to amend Count II, by information in lieu of indictment, because the substituted count constituted a new and different offense from that originally charged in the indictment and, therefore, the court was without jurisdiction to try defendant on that offense. We disagree.

Rule 23.08 provides:

any information may be amended or substituted for indictment at any time before verdict or finding if no additional or different offense is charged and if defendant’s substantial rights are not thereby prejudiced. No such amend *186 ment or substitution shall cause delay of a trial unless the court finds that the defendant needs further time to prepare his defense by reason of such an amendment or substitution.

(Emphasis added.)

Relying on this rule and § 545.290, RSMo 1986, “Missouri cases are to the effect that even if an essential element is omitted from the original information, it may be supplied by an amendment if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.” State v. Jackson, 604 S.W.2d 882, 835 (Mo.App.1980) (emphasis added).

The sole change effected by the substituted information involved the name of the victim. However, a change in the victim’s name by substituted or amended information does not constitute a charge of a different offense in a robbery case. State v. Sturrs, 51 S.W.2d 45 (Mo.1932). See also Dye v. Sacks, 173 Ohio St. 422, 183 N.E.2d 380 (1962).

Furthermore, defendant does not allege that he was prejudiced by the substitution of LeGrand’s name for Messina’s. Both LeGrand and Messina were endorsed as witnesses on the indictment, and defendant’s counsel deposed Mr. LeGrand prior to trial. When asked if he was surprised when the substitute information was filed, defense counsel stated he was not. Defendant does not claim to have required a different defense because of the substitution and the facts indicate that he was not prejudiced by it. His point is without merit.

The defendant next posits error in the trial court’s refusal to grant defendant’s motion to sever Counts I, II and III, the Clarion Hotel offenses, from Counts IY, Y, VI and VII, the parking garage offenses. Severance presupposes proper joinder and is addressed to the discretion of the trial court with regard to whether prejudice may or would result if charges properly joined were tried together. State v. Southern, 724 S.W.2d 605, 607 n. 2 (Mo.App.1986). 1 We find no abuse of discretion on the part of the trial court in failing to sever the offenses, having examined the factors to be considered according to State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), rev’d on other grounds sub nom. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

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740 S.W.2d 184, 1987 Mo. App. LEXIS 4553, 1987 WL 3819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hutchinson-moctapp-1987.