371 S.W.3d 30
Mo. Ct. App.2012Background
- Durham was convicted by jury of two counts of harassment under §565.090.1 for repeated voicemails and texts to Leffingwell and her husband.
- The State filed an original information alleging harassment against both victims in one count; later amended on the day of trial to two separate counts.
- Durham argued the original information was flawed and the amendment was improper, and raised related evidentiary and constitutional challenges.
- The trial court admitted evidence rulings and denied mistrial requests; Durham did not preserve a constitutional challenge to the jury instructions.
- The appellate court upheld the judgments, finding no plain error or abuse of discretion, and held constitutional challenges were waived due to lack of preservation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proceeding under the original information and amending on the day of trial was proper | Durham (State) | Durham | No error; amendment proper under Rule 23.08; original information not fatally flawed. |
| Whether excluding Waltz’s testimony about Leffingwell’s truthfulness was an abuse of discretion | Durham | Durham | No abuse; testimony about general reputation allowed, but extrinsic evidence of a collateral specific act was improper. |
| Whether the State’s sentencing argument regarding not guilty plea constitutes plain error | Durham | State | No manifest injustice; plain error not shown. |
| Whether the jury’s request to consider community service warrants a mistrial | Durham | State | No; no manifest injustice; mistrial not warranted based on note and sentencing record. |
| Whether Durham waived constitutional challenge to the Missouri Approved Instruction for harassment | Durham | Durham | Waived; not preserved at earliest opportunity; review declined. |
Key Cases Cited
- State v. Severe, 307 S.W.3d 640 (Mo. banc 2010) (plain-error standard for manifest injustice in criminal appeals)
- State v. McGinness, 215 S.W.3d 322 (Mo.App. E.D.2007) (abuse of discretion in information amendments)
- State v. Forrest, 183 S.W.3d 218 (Mo. banc 2006) (abuse of discretion in evidentiary rulings for character evidence)
- State v. Sumowski, 794 S.W.2d 643 (Mo. banc 1990) (preservation of constitutional claims; earliest opportunity rule)