State v. Mansfield

793 S.W.2d 609, 1990 Mo. App. LEXIS 1052, 1990 WL 91967
CourtMissouri Court of Appeals
DecidedJuly 6, 1990
DocketNos. 15934, 16444
StatusPublished
Cited by3 cases

This text of 793 S.W.2d 609 (State v. Mansfield) 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. Mansfield, 793 S.W.2d 609, 1990 Mo. App. LEXIS 1052, 1990 WL 91967 (Mo. Ct. App. 1990).

Opinion

PREWITT, Judge.

Following nonjury trial defendant David Mansfield was convicted of first-degree murder and sentenced to life imprisonment without eligibility for probation or parole. After he was sentenced Mansfield filed a direct appeal (No. 15934) and a Rule 29.15 motion. His motion was denied after an evidentiary hearing. Mansfield appeals (No. 16444) from that denial. Pursuant to 29.15(l), the appeals have been consolidated. Mansfield presents six points relied on, the first five relating to his criminal trial. Those points are discussed in the order presented.

For his first point Mansfield contends that the trial court erred in finding him guilty of first-degree murder “in that no rational trier of fact could have found every essential element of first degree murder beyond a reasonable doubt.” To determine if the evidence was sufficient to support the conviction, this court views the evidence and proper inferences therefrom in the light most favorable to the state. State v. Miller, 772 S.W.2d 782, 783 (Mo.App.1989); State v. Cook, 711 S.W.2d 208, 210 (Mo.App.1986).

So viewed, the evidence disclosed that the following occurred: On July 30, 1987, at approximately 11:40 p.m., Daniel Recker was lying on the floor with his fiancée in the den of his residence near Portageville. They heard an outside door leading into the den open unexpectedly, and Recker raised up on his elbows. He was killed by a shot [611]*611from a shotgun. Law enforcement investigators found an expended 20 gauge shotgun shell on a couch in the den.

On May 27, 1987, Joe Neely borrowed $9,000 from Recker which he was obligated to pay back in thirty days with interest. Neely gave this money to Mansfield to buy marijuana in Florida. With a friend Mansfield went to Florida and purchased marijuana. The marijuana was contaminated and was difficult to sell, resulting in Neely not having the money to pay Recker. Neely was able to sell some of the marijuana and with other money which he had, paid Recker $1,500 on July 19, 1987.

A few days prior to the shooting Mansfield, Neely and Robert Bell drove to Recker’s house. Neely pointed out the house to Mansfield. On July 29, 1987, Mansfield discussed killing Recker with Bell. That evening Mansfield and Bell borrowed an “over and under” weapon from Bob Robinson. It had a 22 rifle barrel on top and a 20 gauge shotgun barrel below. Mansfield gave it to Bell and told him he would pay him a thousand dollars to shoot Recker.

On that day Bell drove to near Recker’s house where he left the weapon and returned to Mansfield’s house and told him that Recker had company. Mansfield phoned Neely and talked with him and then Mansfield and Bell drove back to near Recker’s house and picked up the weapon. Bell then told Mansfield that he didn’t want to kill Recker and Mansfield said that “he’d take care of it.”

On the evening of July 30, 1987, the date Recker was shot, Bell and Mansfield went to a restaurant in Portageville where Neely was the manager. Mansfield talked to Neely there. Bell testified that they parted at approximately 11:00 p.m. and he went to Kennett. He said he returned to Mansfield’s house about 1:30 a.m. the next day. Mansfield was there with the weapon and told Bell to take it back to Robinson.

Neely testified that the day after the shooting he saw Mansfield at Mansfield’s house. Neely said that Mansfield told him that he and Bell went to Recker’s house, that Mansfield went up to the door, shot Recker and then returned home with Bell. Neely also testified that Mansfield told him that Bell did the shooting. Bell denied shooting Recker. Neely said he paid Mansfield $300 for killing Recker. Bell testified that Neely gave Mansfield more than $1000 and that Mansfield gave him $300. There was additional evidence indicating Mansfield’s involvement in Recker’s death, but that above set forth demonstrates that there was more than adequate evidence for the trier of fact to find that Mansfield committed or aided the commitment of the offense charged.

Mansfield argues that the credibility of the witnesses was such that the trial court could not have made its finding beyond a reasonable doubt. That credibility generally is not for this court but for the trier of fact. State v. Martin, 702 S.W.2d 942, 947 (Mo.App.1986); State v. Casey, 683 S.W.2d 282, 286 (Mo.App.1984).

“The trier of the facts, be it court or jury, and here it was the court, had leave to believe or disbelieve all, part or none of the testimony of any witness or to accept or reject in whole or in part such testimony just as a court or jury may find the same to be true or false when considered in relation to the other testimony and circumstances of the case.” Casey, supra 683 S.W.2d at 286. Viewed by the standards above set forth there was evidence sufficient to support the conviction. The first point has no merit.

Mansfield’s second point asserts that the trial court erred “in permitting an implied amendment of the information”. This point is premised upon the trial court's finding that “Mansfield either shot Daniel Recker with the purpose to kill him or made arrangements with or contracted with Robert Bell to shoot Daniel Recker with purpose to kill him”.

The information charged that “the defendant, after deliberation, knowingly killed Danny Recker by shooting him”. Mansfield acknowledges that amendment of an information to include acting alone or knowingly in concert with another does not constitute an additional or different charge. [612]*612See Fulsom v. State, 625 S.W.2d 249, 251-252 (Mo.App.1981).

Even though the information charges the defendant as a principal, a trial court may properly submit to a jury active participation or aiding and abetting. State v. Crumbaker, 753 S.W.2d 76, 78 (Mo.App.1988); State v. Randleman, 705 S.W.2d 98, 101 (Mo.App.1986). If a jury as the trier of fact can properly consider and find a defendant guilty as an accomplice based upon an information charging the defendant as a principal, then the trial judge as the trier of fact can also properly find the defendant guilty as an accomplice. The second point has no merit.

For his third point Mansfield contends that the trial court erred in not excluding the testimony of Joe Neely because the state did not comply with discovery by providing a videotape statement and informing Mansfield’s counsel of an oral statement Neely made until after Neely had taken the witness stand and testified. The record does not disclose that Mansfield’s attorney expressly sought to exclude any of Neely’s testimony on this ground.

Neely testified as a part of the state’s case. The record reflects that the following occurred during his cross-examination:

MR. BUCKLEY: [Mansfield’s criminal trial counsel] Your Honor, in one of Mr. Neely’s last answers to my question I understood him to say that there had been a videotape made of what he orally said when he made the statement in writing or signed on the 22nd of October at Poplar Bluff.

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Related

State v. Levesque
871 S.W.2d 87 (Missouri Court of Appeals, 1994)
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813 S.W.2d 379 (Missouri Court of Appeals, 1991)
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812 S.W.2d 799 (Missouri Court of Appeals, 1991)

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Bluebook (online)
793 S.W.2d 609, 1990 Mo. App. LEXIS 1052, 1990 WL 91967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mansfield-moctapp-1990.