State of Missouri, Plaintiff/Respondent, v. Kevin Lee Madison, Defendant/Appellant. Kevin Lee Madison, Movant/Appellant, v. State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Plaintiff/Respondent, v. Kevin Lee Madison, Defendant/Appellant. Kevin Lee Madison, Movant/Appellant, v. State of Missouri, Respondent/Respondent. Case Number: 20715 and 21958 Handdown Date: 10/14/1998 Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott Counsel for Appellant: Amy M. Bartholow Counsel for Respondent: Daniel W. Follett Opinion Summary: None Citation: Opinion Author: James K. Prewitt, Presiding Judge Opinion Vote: 20715 - AFFIRMED IN PART, REVERSED IN PART AND REMANDED; 21958 - AFFIRMED. Crow and Parrish, JJ., concur. Opinion: Following jury trial, Appellant was convicted of first-degree burglary; unlawful use of a weapon; three counts of first-degree endangering the welfare of a child; and three counts of armed-criminal action. He was sentenced as a prior offender to ten years' imprisonment for burglary; five years' imprisonment for unlawful use of a weapon; ten years' imprisonment for each count of armed-criminal action; and five years' imprisonment on each count of endangering the welfare of a child. The sentences were to run concurrently. Thereafter, Appellant filed a Rule 29.15 motion, seeking to vacate the convictions. The motion was denied after an evidentiary hearing. Appellant appeals both matters. Pursuant to Rule 29.15(l), then in effect, the appeals were consolidated.(FN1) There is no claim that the evidence was insufficient to support the convictions. Therefore, to give a better understanding of the issues presented, we briefly set forth the facts which support the verdicts. Appellant and Donna Madison were married July 1, 1980. She had a six-month-old daughter at that time. The

couple had two children born during the marriage: Wendi and Brandon. The couple separated in 1988, but were not divorced until September, 1994. After the separation, Appellant would occasionally visit Donna and the children. Early in 1994, Donna decided she wanted the marriage dissolved and told Appellant. In February of 1994, she obtained an ex parte restraining order against Appellant claiming adult abuse, but he was not served with it. On May 27, 1994, Donna's sister spent the night at Donna's home in Neosho, together with the sister's son and two daughters. Appellant, without Donna's permission, entered Donna's home that night or early morning. Donna's sister left the house early for work, but her children remained there. After she left, at approximately 5:30 a.m., on May 28, 1994, Appellant entered Donna Madison's bedroom where she and her younger niece and nephew were sleeping. Donna testified when she awoke, Appellant was holding a pistol to her neck threatening to kill her. She screamed, which awoke her daughter and older niece. Both then came into Donna's bedroom. They testified they saw Appellant pointing and waving the pistol at everyone in the room and threatening to kill Donna Madison. The girls convinced Appellant to relinquish that pistol, which Appellant then unloaded and gave to his daughter. She and the older niece left the bedroom. Appellant also had another pistol and when Donna saw the pistol, she screamed and the girls returned to the room. The daughter again got the pistol from Appellant. Appellant took Donna to work, but before leaving the house, she told the children to call the police and have them meet her at her place of employment. There, Appellant was served with the restraining order and arrested. Thereafter, he was charged with eight counts of criminal offenses. For his first point, Appellant asserts that the three counts of endangering the welfare of a child charged him "with all the elements of endangering the welfare of a child in the second degree, including criminal negligence, while he was convicted of endangering the welfare of a child in the first degree for knowingly committing the acts." He also contends that the three convictions of armed-criminal action, based upon the counts of endangering the welfare of a child, must also fall.(FN2) Each of the three counts charging endangering the welfare of a child cite Section 568.045, RSMo 1994, which sets forth endangering the welfare of a child in the first degree. The counts following the reference to the statutory section recited that Appellant "committed the class D felony of endangering the welfare of a child in the first degree." That section provides that a person commits the crime of endangering the welfare of a child in the first degree when that offense is committed if a person "knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old." Instead of stating that Appellant acted "knowingly," each count stated that Appellant acted "with criminal negligence." Those charges substantially stated endangering the welfare of a child in the second degree, under Section 568.050, RSMo 1994. The latter section provides that the crime of endangering the welfare of a child in the

second degree occurs when a person "with criminal negligence acts in a manner that creates substantial risk to the life, body or health of a child less than seventeen years old." As applicable here, a person "acts knowingly" "[w]ith respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist." Section 562.016.3(1), RSMo 1994. A person "acts with criminal negligence" when "he fails to be aware of a substantial and an unjustifiable risk that circumstances exist or a result will follow, and that such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016.5, RSMo 1994. The instructions submitting endangering the welfare of a child required the jury to find that Appellant acted "knowingly." There was no challenge to the information prior to the verdict. State v. Parkhurst, 845 S.W.2d 31, 35 (Mo.banc 1992), tells us that in such a situation: When the issue is raised for the first time after the verdict, the 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. The consideration in Parkhurst labeled (1) is dispositive of this issue. The facts stated in the counts of endangering the welfare of a child state the offense in the second degree, although the statutory section cited is that of first degree. The question is whether by a reasonable construction, first degree was charged. Counts III, V, and VII are identical, except for the name of the child. Omitting the name of the child, a count is set forth marginally.(FN3) It is the factual elements which appear to control whether or not an information is sufficient, not the recital of the statutory section or a conclusion as to the charge. "The test for the sufficiency of an information is whether it contains all the essential elements of the offense and clearly apprises the defendant of the facts constituting the offense." State v. Boyd, 927 S.W.2d 385, 389-90 (Mo.App. 1996). Mentioning a statute number is not conclusive as to the offense charged and is treated as surplusage. State v. Cusumano, 819 S.W.2d 59, 61 (Mo.App. 1991). Mistakes in describing the degree of an offense do not affect the sufficiency of an information "where the mistakes do not detract from the factual statements of the charge." State v. Schnelle, 924 S.W.2d 292, 300 (Mo.App. 1996). In Schnelle, the information used "first degree" instead of "second degree" the court recited that the information "did cite the correct statute and more importantly, the facts alleged correctly described the elements of second degree assault." Id. Applying the standard set forth in Parkhurst, State v. Ricker, 936 S.W.2d 167, 171 (Mo.App. 1996), stated: The information in the instant case does not charge the crime of assault in the first degree, the crime upon which [defendant] was convicted. The

necessary culpable mental state is misstated in the information and, under the Parkhurst standard, [defendant's] conviction for assault in the first degree (Count III) and the related charge of armed criminal action (Count IV) must be reversed. In Ricker, the matter was remanded for a new trial on those counts. We conclude that we must do likewise. By no reasonable construction can "knowingly" be equated with "criminal negligence." They have distinct meanings, as set forth above. Appellant was charged with facts constituting endangering the welfare of a child in the second degree, but convicted following an instruction submitting first degree. The convictions under Counts III, IV, V, VI, VII, and VIII are reversed and the cause remanded for further proceedings. The decision regarding Point I makes Appellant's second point moot. There, Appellant asserts that he was subjected to double jeopardy by being convicted in Count II, of the unlawful use of a weapon, and for the same conduct convicted of armed-criminal action. In Point III, Appellant contends that the court plainly erred in sentencing him as a prior offender because his due process and confrontational rights were denied in that he was not allowed to be present when his status as a prior offender was considered. To be entitled to a vacation of sentence and remand, where the determination is of prior offender status, actual prejudice must be established. State v. Lowery, 926 S.W.2d 712, 713 (Mo.App. 1996); Scharnhorst v. State, 775 S.W.2d 241, 246 n.4 (Mo.App. 1989). Appellant admittedly was a prior offender, therefore no prejudice was shown. Point III is denied. Appellant's remaining points contend that he received ineffective assistance of counsel, entitling him to relief on his Rule 29.15 motion. By his Point IV, he contends his counsel was ineffective as he did not file a motion for a new trial in the criminal matter. Following the evidentiary hearing on Appellant's motion, the trial court determined that there was no showing that failing to file a motion for new trial prejudiced him. In reviewing findings in a post-conviction motion, we determine whether they were clearly erroneous. Rule 29.15(k). A criminal defendant's attorney's failure to file a motion for new trial does not entitle the defendant to post- conviction relief, absent a showing of prejudice. State v. Purnell, 792 S.W.2d 635, 636 (Mo.App. 1989). The record does not establish that Appellant would have received any more relief than he is presently receiving, had a motion for new trial been filed. Therefore, there was no prejudice. Point IV is denied. For his final point, Appellant asserts that he was entitled to post-conviction relief because "when defense counsel told the jury during voir dire that Kevin [Madison] would testify, he compelled Kevin to testify against his will in direct violation of his constitutional right." Appellant asserts that he repeatedly told his attorney that he did not wish to testify but

counsel insisted that he do so. On this issue, the trial court found that after having been told that he did not have to testify, Appellant decided to tesify. Appellant contends he was prejudiced by having to take the stand against his will, which brought out his prior conviction for possession of a controlled substance. That conviction was in October of 1986, approximately seven and one-half years before the incident in question here. It neither showed a propensity to commit burglary nor any weapons offense. In charging ineffective assistance of counsel, movant must prove his allegations by a preponderance of the evidence; the court begins with the presumption that counsel is competent. Amrine v. State, 785 S.W.2d 531, 534 (Mo.banc), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1990). On such a contention, movant has a "heavy burden." Id. [quoting from Sanders v. State, 738 S.W.2d 856, 857 (Mo.banc 1987)]. Movant did not testify at the hearing on his motion, nor present other evidence establishing that his counsel acted contrary to his wishes. We must presume that counsel complied with his wishes and, although Appellant may have been reluctant to testify, he did so in accordance with his counsel's trial strategy. Trial counsel's advice whether to testify is a matter of trial strategy which, barring exceptional circumstances, does not entitle a defendant to post-conviction relief. State v. Swims, 966 S.W.2d 368, 369 (Mo.App. 1998). Under our limited review, we cannot say that the trial court's findings on this issue were clearly erroneous. Point V is denied. No. 20715: The convictions on Count I and Count II of the Information are affirmed. The convictions on the remaining counts in the Information are reversed and the cause remanded to the trial court for further proceedings. No. 21958: The judgment is affirmed. Footnotes: FN1.Appellant was sentenced on December 29, 1995. Therefore, Rule 29.15, as it was then in effect, applies. See present Rule 29.15(m). This created a delay in processing his appeal in the criminal matter until after the trial court's ruling on Appellant's Rule 29.15 motion. That motion was denied on September 25, 1997. FN2.Although no timely motion for new trial was filed, questions as to the sufficiency of the information are preserved for our review. Rule 29.11(d); Rule 30.20. FN3.[T]he defendant, in violation of Section 568.045, RSMo, committed the class D felony of endangering the welfare of a child in the first degree, punishable upon conviction under Sections 558.011.1(3) and 560.011, RSMo, in that on or about May 28, 1994, in the County of Newton, State of Missouri, the defendant acted with criminal negligence in a manner that created a substantial risk to the life or body of [child's name], a child less than seventeen years old by waving a gun in front of the child, . . . Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.