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STATE of Missouri, Plaintiff-Respondent, v. Edward BARNES, Defendant-Appellant

Missouri Court of Appeals2010-05-19No. No. SD 29904
312 S.W.3d 442

Summary

Holding. The judgment of conviction was affirmed. A variance between the charges alleged in the information and the facts proven at trial does not constitute reversible error when the defendant was adequately able to defend against the proven charges and suffered no prejudice from the inconsistency.

Edward Barnes was convicted of endangering a corrections officer after a bench trial in which he spit on the officer. The charging document alleged he endangered officer Charles Mitchell on July 23, 2007, but the prosecution presented evidence that he spit on officer Edward Cantrell on August 15, 2007. The defense did not object to this discrepancy between the charges and the evidence presented. Barnes appealed, arguing that the variance between the alleged date and victim and the proven date and victim constituted reversible error.

The appellate court applied plain error review because defense counsel failed to object at trial. The court determined that a variance between charges and proof is not automatically reversible error; the defendant must demonstrate prejudice resulting from the variance. The court found no prejudice here because the defense clearly understood that the case concerned the August 15 incident with Cantrell, actively litigated that specific incident by introducing conduct violation reports, and was therefore fully able to defend against the actual charges proven at trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether variance between charged allegations and proven facts constitutes reversible error
  • Whether defendant was prejudiced by the variance between the information and trial evidence
  • Whether defense counsel's failure to object to the variance requires plain error review

Procedural posture

Following a bench trial conviction for endangering a corrections officer, the defendant appealed on the ground that the information charged him with endangering one officer on one date but the prosecution proved he endangered a different officer on a different date.

Authorities cited

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Opinion

majority opinion

NANCY STEFFEN RAHMEYER, Judge.

Edward Barnes (“Appellant”) was convicted of one count of endangering a corrections officer, a felony under section 565.085, for spitting on a corrections officer. Following a bench trial, the trial court sentenced Appellant to a two-year prison term, to..run concurrently with a sentence he was already serving. The information charged Appellant with spitting on corrections officer Charles Mitchell on July 23, 2007. At the bench trial, however, the prosecution proved that Appellant spit on a different corrections officer, Edward Cantrell, on August 15, 2007. Cantrell was the only witness that testified at the trial. A videotape showing Appellant spitting on Cantrell was admitted into evidence. The defense made no objection to the variance between the facts alleged in the information and the facts proven at trial. Appellant now appeals the conviction.

Appellant’s sole point on appeal is that the trial court committed reversible error in convicting him of the August 15, 2007 felony of endangering corrections officer Cantrell, when the information charged Appellant with the felony of endangering corrections officer Mitchell on July 23, 2007.

Because the defense counsel failed to object to the variance between the facts alleged in the information and the facts proven at trial, our review is for plain error. State v. Rogers, 970 S.W.2d 402, 405 (Mo.App. W.D.1998).

This review involves a two step-process. First, we determine whether the claim of error facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted.... Absent a finding of facial error, an appellate court should decline its discretion to review the claim. If plain error is found, we proceed to the second step to consider whether the error actually resulted in manifest injustice or a miscarriage of justice.

State v. Stallings, 158 S.W.3d 310, 315-16 (Mo.App. W.D.2005) (internal citations omitted). The outcome of plain error review, furthermore, “depends heavily on the specific facts and circumstances of each case.” State v. Roper, 136 S.W.3d 891, 900 (Mo.App. W.D.2004). After a review of the record, we find no reversible error, and, consequently, no plain error, here.

“A variance alone is not conclusive to the question of whether there is reversible error.” State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992). The defendant must also be prejudiced by the variance between allegations in the information and evidence presented at trial. See State v. Crossman, 464 S.W.2d 36, 42 (Mo.1971). That is, “ ‘[ujnless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information’ ” not varied from the evidence presented at trial, the defendant “ ‘should not be entitled to relief on account of the variance.’ ” State v. Lemons, 294 S.W.3d 65 (Mo.App. S.D. 2009) (quoting State v. Darden, 263 S.W.3d 760, 763-64 (Mo.App. W.D.2008)).

The record shows that Appellant was adequately able to defend against the charge that he endangered corrections officer Cantrell, despite the inconsistency between the information and the proof offered at trial. Defense counsel’s actions clearly demonstrate knowledge that the facts the prosecution sought to prove at trial were in regard to the August 15th incident, rather than the July 23rd incident. At trial, no evidence was presented regarding the July 23rd incident. In fact, defense counsel offered three conduct violation reports, specifically identifying Cantrell and detailing the events of the August 15th incident, into evidence during the cross-examination of Cantrell. The State did not object and the trial court admitted the reports.

Here, Appellant fully litigated the issue of whether he was guilty of endangering a corrections officer on August 15, 2007, not the July 23rd incident. The defense, therefore, was not prejudiced by the variance. Appellant was charged with and convicted of a violation of section 565.085. Appellant suffered neither a manifest injustice nor a miscarriage of justice.

The judgment is affirmed.

SCOTT, C.J., LYNCH, P.J., concur.

. All references to statutes are to RSMo Cum. Supp.2005, and all rule references are to Missouri Court Rules (2010), unless otherwise specified.