Opinion
No. WD 60855
April 22, 2003
Appeal from the Circuit Court of Jackson County, The Honorable Peggy Stevens McGraw, Judge.
James R. Wyrsch, Kansas City, Missouri, for appellant.
Philip M. Koppe, Kansas City, Missouri, for respondent.
Before Spinden, P.J., Breckenridge and Newton, JJ.
Mr. Williams was convicted, after a bench trial, of one count of assault in the second degree under section 565.060, RSMo 2000, and one count of armed criminal action under section 571.015. Mr. Williams filed a post-conviction Motion for Arrest of Judgment under Rule 29.13(a). At the hearing on this motion, Mr. Williams also claimed a violation of the rule of Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), and asked that the trial court reverse the convictions and grant him a new trial because the State failed to disclose exculpatory evidence. The trial court denied the motion and the Brady claim and sentenced Mr. Williams as a prior, persistent, and dangerous offender to seven years in prison for assault and five years in prison for armed criminal action, to run concurrently. Mr. Williams raises five points on appeal. In his first point, Mr. Williams challenges the sufficiency of the amended information on count one, assault in the second degree. In his second point, Mr. Williams challenges the sufficiency of the amended information on count three, armed criminal action. In his third point, Mr. Williams claims the trial court erred in failing to grant him a new trial because the State committed a Brady violation. In his fourth and fifth points, Mr. Williams asserts that both the amended information and the evidence were insufficient on the armed criminal action count because there was no allegation or evidence that he used his vehicle with the intent to cause death or serious physical harm to Ms. Mosley. This court finds that Mr. Williams failed to demonstrate prejudice from the alleged deficiencies in count one and count three of the amended information, the trial court did not err in denying Mr. Williams' claim that the State committed a Brady violation, and the amended information and evidence were sufficient to prove armed criminal action because intent to cause death or serious physical injury is not the correct standard for determining if an ordinary object is a dangerous instrument. Accordingly, the judgment of the trial court is affirmed.
All statutory references are to the Revised Statutes of Missouri 2000.
Rule 29.13(a) provides, in pertinent part:
Within thirty days after entry of the judgment and prior to the filing of the transcript of the record in the appellate court, the court may of its own initiative or on motion of a defendant arrest or set aside a judgment upon either of the following grounds: (1) that the facts stated in the indictment or information do not constitute an offense; or (2) that the court is without jurisdiction of the offense charged.
Factual and Procedural Background
On May 9, 2001, around 11:00 p.m., police officers responded to a disturbance call at 3018 Highland in Kansas City. When they located 3018, they saw a man in a white T-shirt run out of the front door. A woman ran out of the house after him. The man, later identified as Mr. Williams, reached the street and got into his car, which was parked in front of the house. The woman, later identified as Marva Mosley, ran into the street, and waved her arms at the police officers. She ran in front of Mr. Williams' car and stood between it and a van that was parked in front of it. She moved to the middle of the street and continued to wave her arms at the police.
At that time, Mr. Williams started his car and began to pull out of his parking space. He went forward, backed up, and then went forward out of the space until Ms. Mosley was directly in front of the car. Ms. Mosley placed both hands on the hood of the car and started backing up while Mr. Williams moved the car forward. Mr. Williams then accelerated, and the front end of the car struck Ms. Mosley in her thighs. The impact caused Ms. Mosley's legs to extend out away from the front of the car as she was thrown onto the hood of the car. She rolled off the hood on the passenger side and fell onto the ground, rolling approximately two times. Mr. Williams continued to drive down the street.
After Ms. Mosley was hit by the car, the police officers called for another police car and an ambulance to treat her. The officers then pursued Mr. Williams. They caught up with Mr. Williams at a stoplight a few blocks away. Mr. Williams ignored their requests to get out of the car, so the police officers forcibly removed him from his car and arrested him for assault. The police officers, with Mr. Williams in custody, returned to 3018 Highland.
There, the police officers found Ms. Mosley inside the house, where emergency personnel were attending to her. She had scratches on her hands, face, and feet and had a bloody lip. Ms. Mosley told the police officers that she and Mr. Williams had an argument that evening and Mr. Williams had kicked her door open, struck her in the mouth, and tried to run her over with his car. The officers noticed some damage to the front door and the doorframe.
The next day, Ms. Mosley applied for an ex parte order of protection against Mr. Williams. She also made a formal statement to the police. She told the police that she and Mr. Williams, who was her boyfriend, had an argument the evening before. She stated that she told Mr. Williams to leave her home, and he complied. Later that evening, Mr. Williams returned to her home to pick up his belongings. Ms. Mosley was on the telephone with her sister when she heard Mr. Williams come in, and she asked her sister to call the police. Mr. Williams and Ms. Mosley continued to argue while Mr. Williams gathered his belongings and, at one point, Ms. Mosley locked him out of the house. She told the police that Mr. Williams then kicked the door open, punched her in the mouth, and ran to his car. Ms. Mosley stated that she asked Mr. Williams not to leave before the police arrived, and she stood in front of his car so he would not drive away. However, Mr. Williams drove his car into the street and "ran into" her. She claimed that she "landed on top of the hood and [Mr. Williams] just kept on going."
Approximately one or two weeks later, however, Ms. Mosley contacted an assistant prosecutor with the Jackson County Prosecuting Attorney's office, Aimee Riederer. Ms. Mosley told Ms. Riederer that she was recanting her statements to the police. Ms. Mosley later gave a sworn affidavit to Mr. Williams' attorney recanting her statements to the police.
Despite Ms. Mosley's change of story, Mr. Williams was charged, by amended information and as a prior, persistent, and dangerous offender, with second degree assault, section 565.060, third degree assault, section 565.070, and armed criminal action, section 571.015. A bench trial was held on August 20, 2001. At trial, the arresting officers testified for the State and related the events that they observed on May 9. At the close of the State's evidence, the trial court sustained the defense's motion for a directed verdict on the third degree assault charge.
Mr. Williams called Ms. Mosley to testify for the defense. She testified that, on May 9, she was angry with Mr. Williams because he had been talking to an ex-girlfriend. She said that she asked Mr. Williams to leave her home, and he left and went to his father's house. He later returned to her house to retrieve his belongings, and she told her sister to call the police. He used his key to enter her home and did not kick in the door. Ms. Mosley and Mr. Williams continued to argue and, when she tried to stop him from taking his television back, it dropped and broke. She also testified that Mr. Williams did not hit her in the mouth, but, instead, she hit it with the broom handle while she was cleaning up glass from the broken television. Finally, she stated that she jumped on the hood of Mr. Williams' car to keep him from leaving before the police arrived at the house. She explained that she lied to the police because she was "really, really mad" at Mr. Williams and "wanted him to get into trouble."
At the end of the trial, the trial court found Mr. Williams guilty of second degree assault and armed criminal action. Mr. Williams then filed a post-conviction Motion to Arrest Judgment under Rule 29.13(a). At the hearing on the Motion to Arrest Judgment, after Mr. Williams noted that he was not required to file a motion for new trial since it was a court-tried case, he raised and presented evidence on a Brady claim that the trial court should reverse the convictions and grant him a new trial because the State failed to disclose exculpatory evidence. The trial court denied the Motion to Arrest Judgment and Mr. Williams' Brady claim and sentenced him as a prior, persistent, and dangerous offender to seven years in prison for assault and five years in prison for armed criminal action, to run concurrently. This appeal followed.
No Prejudice From Deficiencies in Amended Information
In his first point, Mr. Williams challenges the sufficiency of the amended information on count one, assault in the second degree. In his second point, Mr. Williams challenges the sufficiency of the amended information on count three, armed criminal action. Because both of these points concern the sufficiency of the charging instrument, this court will consider them together.
To be sufficient, a charging information must "[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged." Rule 23.01(b)(2). The essential elements of an offense include those "set out in the statute or statutes that define the offense." State v. Briscoe , 847 S.W.2d 792, 794 (Mo.banc 1993). If the indictment or information does not contain facts constituting the offense charged, "the [trial] court may of its own initiative or on motion of a defendant arrest or set aside a judgment." Rule 29.13(a).
Mr. Williams did not contest the sufficiency of the amended information until after his conviction. Under these circumstances, the Supreme Court has held that the defendant's right to relief is limited:
[T]he indictment or information 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 convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.
State v. Parkhurst , 845 S.W.2d 31, 35 (Mo.banc 1992) (footnote omitted). "In either event, a defendant will not be entitled to relief based on a post-verdict claim that the information or indictment is insufficient unless that defendant demonstrates actual prejudice." Id . "A defendant suffers actual prejudice only if the indictment was so deficient that the defendant was not placed on notice as to what crime he was being charged with, or was so lacking in clarity that the defendant was unable to properly prepare a defense." State v. Pride , 1 S.W.3d 494, 503 (Mo.App. 1999).
In his first point, Mr. Williams claims that the trial court erred in overruling his Motion to Arrest Judgment on count one of the amended information because it did not contain all of the essential elements of the offense of assault in the second degree. The crime of second degree assault occurs if a person "[a]ttempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument." Section 565.060.1(2). Count one of the amended information charging Mr. Williams with second degree assault read:
The Prosecuting Attorney of the County of Jackson, State of Missouri hereby charges that the defendant, Paul E. Williams, in violation of Section 565.060, RSMo, committed the Class C Felony of Assault in the Second Degree, punishable upon conviction under Sections 558.011 and 560.011, RSMo, in that on or about 05/09/2001, in the County of Jackson, State of Missouri, the defendant attempted to cause physical injury to Marva Mosley by means of a dangerous instrument, to wit: a car.
Mr. Williams argues that the charge was insufficient because it failed to allege that he engaged in a substantial step toward the commission of the assault and it failed "to specify what activity or conduct of Mr. Williams constituted the alleged `substantial step.'" Mr. Williams asserts that under State v. Withrow , 8 S.W.3d 75, 78 (Mo.banc 1999), a substantial step is an essential element of any attempt under Missouri law, which includes attempt-based assault under section 565.060.1(2). Because the charge did not allege this element and the facts to support it, Mr. Williams contends that the charge was fatally defective.
In Withrow , the Supreme Court determined that section 564.011 governs all attempt crimes "whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime." Id. at 80. The Court also found, as Mr. Williams asserts, that an attempt under section 564.011 has "two elements: (1) the defendant has the purpose to commit the underlying offense, and (2) the doing of an act which is a substantial step toward the commission of that offense." Id. at 78. After Withrow , MACH-CR 19.04, the pattern charge for second degree assault, was amended to require that a description of the conduct constituting the substantial step be included in the charge.
This amendment to MACH-CR 19.04 was not effective until September 1, 2001, however, which was after Mr. Williams was charged and tried. Prior to the 2001 amendment, the pattern charge for second degree assault did not require a description of the conduct constituting the substantial step. See MACH-CR 19.04 (10-1-98). The second degree assault charge in this case followed, word-for-word, the pattern charge in effect at that time. "Rule 23.01 governs the form of indictments or informations, and subsection (e) provides that, `[a]ll indictments or informations which are substantially consistent with the forms of indictments or informations which have been approved by [the Missouri Supreme Court] shall be deemed to comply with the requirements of this Rule 23.01(b).'" State v. Bailey , 760 S.W.2d 122, 124 (Mo.banc 1988) (quoting Rule 23.01(e)). This court has held that where "[t]he State's charges followed word-for-word the applicable MACH-CR approved charges and contained the elements of the charged offenses as set out by statute," the charging instrument was not defective. State v. Woodworth , 941 S.W.2d 679, 693 (Mo.App. 1997) (holding that indictment not defective for failing to include the mental element of the crimes charged). See also State v. Hyler , 861 S.W.2d 646, 649 (Mo.App. 1993); State v. Dunmore , 822 S.W.2d 509, 514 (Mo.App. 1991). Despite the language in Rule 23.01(e) and the case law that has followed it, Mr. Williams argues that because the pattern charge conflicted with substantive law, i.e., Withrow , the omission of the description of the substantial step "constitutes reversible error of constitutional dimension."
Rule 23.01 was amended, effective January 1, 2003. The provision that was formerly found in subsection (e) is now found in subsection (b).
The problem with Mr. Williams' argument is that even if this court were to find that the second degree assault charge in this case should have included a description of the conduct constituting the substantial step, Parkhurst requires that he demonstrate actual prejudice to be entitled to relief. State v. Madison , 997 S.W.2d 16, 19 (Mo.banc 1999) (referring to Parkhurst , 845 S.W.2d at 35 ). The conduct that constituted the substantial step was Mr. Williams' driving into Ms. Mosley with his car. Mr. Williams makes the bare assertion that the absence of this description in the amended information prejudiced him because he "could not know the allegations or evidence, precisely, against which he should be prepared to defend." At trial, Mr. Williams' defense was that Ms. Mosley jumped on the hood of his car. Mr. Williams does not detail how the failure to include a description of the substantial step in the amended information hindered his ability to make this defense. This court has held that a defendant who claimed the charging instrument was insufficient because it "failed to contain an essential element of the crime" with which he was charged did not demonstrate actual prejudice where he "failed to identify any aspect of his defense that was in fact hindered by the variance of the indictment from the statute." Pride , 1 S.W.3d at 503 .
Furthermore, the defense Mr. Williams asserted was sufficient to defend against the element that he took a substantial step toward the commission of causing serious physical injury to Ms. Mosley with his car. His defense essentially was that he did not take any steps towards injuring Ms. Mosley with his car because she jumped on the hood of his car. See State v. McCullum , 63 S.W.3d 242, 250 (Mo.App. 2001) (holding defendant was "in no way prejudiced" by omission of a description of the substantial step in first degree assault charge because "his defense was that he did not intentionally set Victim on fire, i.e., he tried to show he was merely reckless," which would not have changed if information had included description of substantial step).
Mr. Williams further asserts that the absence of a description of the substantial step in the charge hindered his ability to plead former jeopardy. He does not specify in what way, however. When a court analyzes a double jeopardy claim, "[t]he information alone is not conclusive." Instead, the court "must look to the proceedings as a whole." Id . An alleged defect in a charging instrument does not preclude the defendant from later pleading double jeopardy when "it is abundantly clear from the facts and the record exactly what activity was alleged to constitute [the crime] and exactly what section of the law was alleged to be violated[.]" Pride , 1 S.W.3d at 503 . Here, it is clear from the information that Mr. Williams was charged with violating section 565.060.1(2). It is also clear from the information and the record that Mr. Williams was charged with violating section 565.060.1(2) because on May 9, 2001, at a location on Highland Street, he tried to run Ms. Mosley over with his car. The amended information and the record are sufficient to enable Mr. Williams to plead former jeopardy.
In his second point, Mr. Williams claims that count three of the amended information was defective because it did not contain all of the necessary elements for armed criminal action. A person is guilty of armed criminal action if that person "commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon[.]" Section 571.015.1. Count three of the amended information alleged, in pertinent part:
The Prosecuting Attorney of the County of Jackson, State of Missouri hereby charges that the defendant, Paul E. Williams, in violation of Section 571.015, RSMo, committed the Felony of Armed Criminal Action, punishable upon conviction under Section 571.015, RSMo, in that on or about 05/09/2001, in the County of Jackson, State of Missouri, the defendant committed the felony of Assault charged in Count One, all allegations of which are incorporated herein by reference, and the defendant committed the foregoing felony of Assault by, with and through the use, assistance and aid of a dangerous instrument[.]
Mr. Williams contends that the amended information was insufficient because it did not allege that he acted with the culpable mental state required for armed criminal action. Mr. Williams argues that the information should have alleged that he knowingly committed second degree assault by, with, or through the use, assistance and aid of a dangerous instrument. He notes that the pattern charge for armed criminal action, MACH-CR 32.02 (10-1-98), contains the following mandatory language: "[t]he defendant knowingly committed the foregoing felony of [ name of felony] by, with and through the use, assistance and aid of a (dangerous instrument)."
This court has held that the prescribed mental state for armed criminal action is the same as that for the underlying felony. State v. Cruz , 71 S.W.3d 612, 619 (Mo.App. 2001). The underlying felony charged in this case was assault in the second degree, as defined in section 565.060.1(2). Under this section, Mr. Williams was charged with committing assault in the second degree for attempting to cause physical injury to Ms. Mosley by means of a dangerous instrument, namely, a car.
This court's opinion in Cruz was readopted on April 30, 2001, after retransfer from the Supreme Court.
The mental state for attempt crimes was discussed by the Supreme Court in State v. Whalen , 49 S.W.3d 181, 186 (Mo.banc), cert. denied , 534 U.S. 1030, 122 S.Ct. 567, 151 L.Ed.2d 440 (2001). In Whalen , the Court referred to its holding in Withrow that the definition of attempt, set out in 564.011, applies to all attempt crimes, "`regardless whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime.'" Whalen , 49 S.W.3d at 186 (quoting Withrow , 8 S.W.3d at 80 ). Thus, a person attempts to commit an offense "when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A `substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Section 564.011.1. Because the definition of attempt requires the person to act "with the purpose of committing the offense" in taking a substantial step towards commission of the offense, the Supreme Court reasoned that the required mental state for an attempt crime is purposely. Whalen , 49 S.W.3d at 186 .
"Purposely" is defined in section 562.016.2, which states that "[a] person `acts purposely', or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result."
Therefore, the culpable mental state for assault in the second degree, defined in section 565.060.1(2) as "attempt[ing] to cause . . . physical injury to another person by means of a deadly weapon or dangerous instrument," is purposely. Since the mental state applicable to the assault in the second degree charge was purposely, the mental state applicable to the armed criminal action charge was that Mr. Williams purposely attempted to commit the felony of assault in the second degree by, with and through the use, assistance and aid of a dangerous weapon.
Obviously, the amended information did not include the word "purposely" in the armed criminal action charge. Because Mr. Williams raised this deficiency in the amended information for the first time after the verdict, however, this court will deem the charge insufficient only if "(1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced." Parkhurst , 845 S.W.2d at 35 (footnote omitted).
Mr. Williams' specific claim of error is that the armed criminal action charge should have expressly included the mental state of "knowingly," as provided in MACH-CR 32.02, the pattern charge for armed criminal action. The current version of MACH-CR 32.02 was promulgated before this court held in Cruz , an opinion that was readopted upon retransfer from the Supreme Court, that the mental state for armed criminal action is the same as that for the underlying felony. 71 S.W.3d at 619. Thus, had the armed criminal action charge included the mental state of knowingly, it would have conflicted with substantive law, since the prescribed mental state under Cruz and Whalen is purposely. The issue then arises as to whether the substantive law or the pattern charge controls, in light of Rule 23.01(e) (now Rule 23.01(b)). Because the resolution of this case turns on whether Mr. Williams suffered actual prejudice by the State's omitting the mental state from the armed criminal action charge, it is not necessary to reach that issue.
Mr. Williams does not claim in this point that the amended information failed, by any reasonable construction, to charge him with armed criminal action. Instead, he argues that the absence of the culpable mental state in the armed criminal charge prejudiced his ability to prepare a defense. Specifically, he claims that the omission of the mental state rendered him unable to make a "materially informed decision on whether or not to testify," since he was unaware that whether he possessed the requisite mental state was a central issue in the case. Mr. Williams does not indicate how the inclusion of the culpable mental state in the armed criminal action charge would have impacted his decision to testify. Moreover, Mr. Williams' defense had nothing to do with his mental state. His defense was that he did not hit Ms. Mosley with his car because Ms. Mosley jumped on the hood of his car. The Supreme Court has held that a defendant was not prejudiced in preparing and presenting his defense when the charging instrument incorrectly stated the requisite mental state for the crime because "[w]hen his defense is that he did not do the act, his mental state is irrelevant." Madison , 997 S.W.2d at 18-20 . By analogy, this court finds that the failure to expressly state "purposely" in the armed criminal action charge did not prejudice Mr. Williams' ability to prepare and present his defense, because Mr. Williams' mental state was irrelevant to his defense.
Mr. Williams' first and second points are denied.
No Brady Violation
In his third point, Mr. Williams claims that the trial court erred in failing to grant him a new trial because the State did not disclose to him that, shortly after the May 9 incident, Ms. Mosley told a member of the prosecuting attorney's office, Aimee Riederer, that she lied to the police concerning the events of that night. Mr. Williams argues that the State's failure to disclose this information violated Brady , 373 U.S. at 87, 83 S.Ct. at 1196 , and, thus, requires a new trial.
When reviewing a trial court's denial of a motion for a new trial, this court determines whether the trial court abused its discretion. State v. Jackson , 969 S.W.2d 773, 775 (Mo.App. 1998). "`Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration[.]'" Id. (quoting King v. Copp Trucking, Inc. , 853 S.W.2d 304, 307 (Mo.App. 1993)). "Rulings made within the trial court's discretion are presumed correct and the appellant has the burden of showing that the trial court abused its discretion." Id .
The principle established by Brady , which Mr. Williams claims was violated, is that the State must disclose evidence that is favorable to the defendant "where the evidence is material either to guilt or to punishment, irrespective of the good faith and bad faith of the prosecution." Brady , 373 U.S. at 87, 83 S.Ct. at 1196 . A prosecutor's failure to disclose such evidence to the defense violates the defendant's due process rights. Id. at 87, 83 S.Ct. at 1196-97 . "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A reasonable probability is that which undermines one's confidence in the outcome. Id . "A Brady violation occurs if: (1) the evidence is favorable to the accused because it is exculpatory or impeaching; (2) the evidence was suppressed by the state either willfully or inadvertently; and (3) the suppression must have prejudiced the defendant." State v. Goodwin , 43 S.W.3d 805, 812 (Mo.banc), cert. denied , 534 U.S. 903, 122 S.Ct. 234, 151 L.Ed.2d 168 (2001).
Here, Mr. Williams claims that the State committed a Brady violation because it failed to disclose that, soon after May 9, Ms. Mosley told Ms. Riederer that she had lied to the police about the events of May 9. Mr. Williams admits that the prosecuting attorney's office told his trial counsel that Ms. Mosley had recanted her statements to the police and refused to testify for the State. He argues, however, that the State still committed a Brady violation because it failed to disclose the "particulars of the incident," i.e., that Ms. Mosley spoke with Ms. Riederer and that this contact occurred a week or two after May 9. He argues that these specifics of Ms. Mosley's recantation are material because they "would squarely rebut any argument by the State that the victim's testimony was the product of recent fabrication, which was precisely the argument advanced by the State in the trial court below."
Mr. Williams' claim is not meritorious. The record shows that the particulars of Ms. Mosley's recantation were disclosed. Ms. Mosley testified at a post-trial hearing on Mr. Williams' Motion to Arrest Judgment that she specifically told Mr. Williams' trial counsel that she had spoken with Ms. Riederer:
I had talked to him and let him know that I had been speaking with Aimee Riederer, because she had called me and told me — or informed me of what it was that she wanted me to do, and I told her I lied and I wasn't going to testify.
Ms. Mosley further testified that she discussed this with Mr. Williams' trial counsel before trial, and "probably" "quite a while before trial." In addition, at the post-trial hearing on Mr. Williams' motion, a different assistant prosecutor advised the court that she personally told Mr. Williams' attorney that "almost immediately from the start of this case Ms. Mosley has been telling us that she lied to the police." At the time of sentencing, Mr. Williams stipulated that this statement was made by the assistant prosecutor as an officer of the court and, in effect, under oath. The trial court expressly found that, based on the statement of the assistant prosecutor, no violation of Brady occurred.
While under Brady , "the prosecution has an affirmative duty to disclose exculpatory evidence," "the state cannot be faulted for nondisclosure if the defendant had knowledge of the evidence at the time of trial." State v. Calvert , 879 S.W.2d 546, 548 (Mo.App. 1994). Because the trial court believed that (1) the State disclosed to defense counsel that Ms. Mosley recanted; (2) Ms. Mosley told defense counsel it was Ms. Riederer she spoke with; and (3) defense counsel was advised that she recanted "almost immediately from the start," the trial court did not abuse its discretion in failing to grant Mr. Williams a new trial. Mr. Williams' third point is denied.
Intent to Cause Death or Serious Physical Injury Not an Element of Armed Criminal Action
In his fourth and fifth points, Mr. Williams claims that both the information and the evidence were insufficient on the armed criminal action count. Specifically, Mr. Williams claims that they were insufficient because the information did not charge and the evidence did not prove that Mr. Williams employed his vehicle as a "dangerous instrument," since there was no allegation that he used his vehicle with the intent to cause death or serious physical injury to Ms. Mosley.
Under section 571.015.1, a person who "commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action." A dangerous instrument is defined in section 556.061(9) as "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or serious physical injury." Serious physical injury is "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." Section 556.061(28).
In applying these statutory provisions, Missouri appellate courts have held that an ordinary object can constitute a dangerous instrument. To determine whether an ordinary object constitutes a dangerous instrument, the court looks at the circumstances under which it was used. See , e.g. , State v. Daniels , 18 S.W.3d 66, 68 (Mo.App. 2000); State v. Anderson , 663 S.W.2d 412, 416 (Mo.App. 1983). In looking at the circumstances, the court focuses on whether the defendant used the ordinary object in a manner in which it was readily capable of causing death or serious physical injury. See section 556.061(9). See also State v. Carpenter , 72 S.W.3d 281, 283 (Mo.App. 2002); State v. Burch , 939 S.W.2d 525, 530 (Mo.App. 1997). If the defendant used the ordinary object in a manner in which it could cause death or serious physical injury, then it is a dangerous instrument. For example, the Southern District has held that handcuffs were a dangerous instrument when the defendant struck a police officer in the face with them. Carpenter , 72 S.W.3d at 283-84 . This court has also held that an elbow was a dangerous instrument when the defendant repeatedly struck the victim in the face with it. Burch , 939 S.W.2d at 530 . Similarly, the Eastern District has held that a butter knife with a serrated edge was a dangerous instrument when the defendant held it against the victim's throat. State v. Tankins , 865 S.W.2d 848, 851-52 (Mo.App. 1993). See also State v. Kobel , 927 S.W.2d 455, 460 (Mo.App. 1996) (metal bar was a dangerous instrument when used to strike victim twice in the head) ; Anderson , 663 S.W.2d at 416 (bottle of gasoline was a dangerous instrument when defendant threatened to use it as an explosive). In these cases, the standard for determining if an ordinary object was a dangerous instrument was whether the defendant used the object in a manner in which it was readily capable of causing death or serious physical injury.
The Southern District applied a different standard for determining whether a utilitarian instrument was a dangerous instrument in State v. Pogue , 851 S.W.2d 702 (Mo.App. 1993), however. The facts in Pogue were that the defendant, while driving with a blood alcohol level of .12%, drove through a red light and hit a car proceeding through the intersection. Id. at 703. The State charged the defendant with involuntary manslaughter for "recklessly" causing the death of the victim. Id. at 704-05. The State also charged him with armed criminal action for committing involuntary manslaughter "by, with and through the use, assistance and aid of a dangerous instrument." Id. at 704. He was convicted of both offenses. The defendant challenged his armed criminal action conviction by arguing that the State had not proven that he used his vehicle as a dangerous instrument with a purpose to commit harm. Id. at 706.
In determining whether the defendant's vehicle was a dangerous instrument, the Southern District first set out the definition of dangerous instrument, as found in section 556.061(9), and then focused upon the phrase "under the circumstances in which it is used" in the definition. Id. at 705-06. The court found that "[i]n determining the circumstances in which defendant used his automobile at the time in question, the user's intent and motive must be considered." Id. at 706. The court held that "for an automobile to become a dangerous instrument for purposes of [section] 571.015, the operator or user of the automobile must possess an intent or motive for the automobile to be an instrument of harm." Id . In reaching this conclusion, the court relied upon the rationale of Reed v. U.S. , 584 A.2d 585, 588-89 (D.C.App. 1990). Pogue , 851 S.W.2d at 706 . In a quote from Reed , the court discussed the need for an intent that the object be used as a weapon:
While certain objects are weapons by design, for instance, a handgun or a switch-blade, other objects become weapons only when there is some general intent for them to be a weapon. For instance, if an individual carries a bat to the baseball field for a game, the bat is certainly not a weapon. However, if the individual should swing the bat purposely at another, the bat then becomes a weapon. Similarly, a car driven for purposes of transportation is not a weapon, but a car driven with the purpose of injurying another definitely is a weapon.
Id . (quoting Reed , 584 A.2d at 588-89 ). Relying on this rationale, the court went on to say that "an instrument not by design a weapon becomes a dangerous instrument when utilized with the purpose of injuring another. A utilitarian instrument becomes a dangerous instrument when circumstances in which it is used demonstrate an intent and motive to cause death or serious harm to a person." Id. (emphasis added).
Applying that standard, the court found that the State had not proven that the defendant's car was a dangerous instrument. Id . The court stated that "[t]here was no evidence nor allegation that defendant intended to drive his motor vehicle, the pickup, so as to cause it to crash into the victim's automobile or that defendant intended to drive the pickup so as to cause the victim's (or any person's) death." Id .
This court subsequently followed Pogue to hold that, in determining if an ordinary object is a dangerous instrument, "[t]he key issue is whether the instrument, article or substance is capable of causing death or serious physical injury by the manner of use, and whether the circumstances of use demonstrate an intent and motive to cause such death or serious harm." State v. Idlebird , 896 S.W.2d 656, 664 (Mo.App. 1995). See also State v. Dowdy , 60 S.W.3d 639, 644 (Mo.App. 2001). Under these cases, to convict for armed criminal action for use of an ordinary object, the State must prove circumstances of use that show the defendant intended to cause death or serious physical injury to the victim.
The holdings of these cases are the basis for Mr. Williams' claims that the information and evidence in this case are insufficient because there is no charge or evidence that Mr. Williams intended to use the vehicle in a manner to cause death or serious physical injury to Ms Mosley. Mr. Williams further supports his claim by pointing to the second degree assault charge, which was the predicate offense for the charge of armed criminal action offense, and noting that it only charged that Mr. Williams attempted to cause "physical injury," rather than serious physical injury or death to Ms. Mosley.
Because this court finds that Pogue , Idlebird , and Dowdy misstate the law, it is not necessary to examine the sufficiency of the information or determine whether the circumstances of the use of the vehicle show an intent to cause death or serious physical injury. The analysis of Pogue , that was followed in Idlebird and Dowdy , is generally sound. It is only the last conclusion of the court, that proof of an intent to cause death or serious injury is necessary, with which this court disagrees. This court agrees that "[i]n determining the circumstances in which defendant used [an ordinary object] at the time in question, the user's intent and motive must be considered." Pogue , 851 S.W.2d at 706 . But this court finds that the user must intend only to use the ordinary object under circumstances readily capable of causing death or serious physical injury, and need not intend to cause death or serious physical injury. This conclusion is reached because section 556.061(9), which defines a dangerous instrument, requires only that the use of the instrument be under circumstances that are "readily capable of causing death or serious physical injury." There is no language in section 556.061(9) that requires a subjective intent of the defendant to use the object with an intent to cause death or serious physical injury. In fact, this requirement is contrary to the legislature's objective standard in the statute, apparent from its use of the language "readily capable of causing death or serious physical injury."
The language in the statute requires only that, for an ordinary object to constitute a dangerous instrument for purposes of section 571.015.1, there must be proof that the defendant had the requisite mental state to commit the underlying felony offense and, in the course thereof, used the ordinary object under circumstances and in a manner in which it was readily capable of causing death or serious physical injury to the victim. It is not necessary to prove that the defendant intended that the harm be death or serious physical injury. To the extent that Idlebird and Dowdy hold otherwise, they are hereby overruled. Therefore, neither the information nor the evidence was insufficient for failing to allege or prove that Mr. Williams intended to cause death or serious physical injury to Ms. Mosley.
Approved by the court en banc.
The amended information in this case did, by a reasonable construction, charge Mr. Williams with armed criminal action. Parkhurst , 845 S.W.2d at 35 . The armed criminal action count alleged that Mr. Williams committed second degree assault by, with, and through the use of a dangerous instrument in violation of section 571.015. This count incorporated all of the allegations contained in the second degree assault count, which alleged that the dangerous instrument was a car. While the amended information may have had deficiencies, Mr. Williams' defense was not prejudiced.
The evidence supported the allegation that Mr. Williams employed his car as a dangerous instrument. The evidence showed that Mr. Williams drove his car into the street while Ms. Mosley was standing in the middle of the street. Once Ms. Mosley was directly in front of Mr. Williams' car, he did not stop. She put her hands on the hood of the car and started to go backwards as fast as she could. Mr. Williams then accelerated directly into her, causing her to be thrown onto the hood of the car. She rolled off the hood toward the passenger side of the vehicle and fell onto the ground, rolling two times. While Ms. Mosley suffered only scratches to her face, hands, and feet as a result of Mr. Williams driving his car directly into her, her injuries could have been much worse. When a vehicle is used in this manner, it is readily capable of causing death or serious injury. Therefore, the circumstances showed that Mr. Williams used his car in a manner in which it was readily capable of causing death or serious physical injury to Ms. Mosley and, as such, that he used his car as a dangerous instrument as contemplated by the armed criminal action statute.
Mr. Williams' fourth and fifth points are denied.
The judgment of the trial court is affirmed.
All concur.
Mr. Williams moved to arrest judgment on the first ground.