Dеfendant Ralph Haywood Green appeals from a conviction for assault in the first degree by means of a dangerous instrument resulting in a sentence of 25 years. We affirm.
On July 16, 1982, the defendant arrived at the victim’s apartment, forced her into his ex-wife’s automobile and drove her to his house. After arriving, defendant forced her to smoke PCP (angel dust). He then proceeded to slap her and intermittently beat her with his fists, a belt, club, and a gun. When the defendant was on the phone, the victim went into the basement. She later went back upstairs and managed to get outside and yell for help. The defendant’s brother-in-law heard her yell and took her to his house where his wife called an ambulance. While there was no blood found at the scene, the victim was treated for contusions, abrasions, and particularly a laceration on the scalp. Defendant has filed both a pro se brief and one through his attorney raising a total of sixteen points on appeal none of which we find to be revеrsible error.
We first address his claims of instructional error. He initially claims the trial court erred in submitting instruction five because it was an improper modification of MAI-CR 2d 19.02. The disputed instruction is as follows:
If you find and believe from the evidence beyond a reasonable doubt:
That on or about July 16, 1982, in the County of St. Louis, State of Missouri, the defendant attempted to kill or cause serious physical injury to Sharon Bellon by beating her with his fists, a belt, a club, and a gun,
then you will find the defendant guilty of assault in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
But if yоu further find and believe from the evidence beyond a reasonable doubt that the defendant committed such assault by means of a dangerous instrument, then you will find the defendant guilty of assault in the first degree by means of a dangerous instrument.
However, if you do not find and believe from the evidence beyond a reasonable doubt each аnd all of these propositions, you must find the defendant not guilty of that offense.
Defendant argues that both the failure to include “dangerous instrument” in the first paragraph and the inclusion of the second general converse gave the jury the impression that two separate offenses were being submitted. First, MAI-CR 2d 19.02 does not include the element “dangerous instrument” in the first paragraph as defendant indicates. He is correct that the instruction deviated from 19.02 by including a second general converse.
1
However, while failure to follow the patterned in
*620
struction is error, it will only be prejudicial if the jury may have been adversely influenced by it. Rule 28.02(e) V.A.M.R.
State v. Rodgers,
Defendant also contends the court erred in failing to instruct on assаult in the third degree, in that it was a lesser included offense. We disagree.
The defendant is only entitled to an instruction on a lesser offense if it is supported by the evidence. § 556.046 RSMo 1978;
State v. Robinson,
Finally, defendant contends Instruction 5 failed to advise the jury of the range of punishment as provided in MAI-CR 2d 19.02. This point is also without merit. Section 557.036.2 RSMo 1978 provides that the court shall assess the punishment if the state pleads and proves the defendant is a persistent offender as defined in § 558.016 RSMo 1978. Defendant in this case was found to be a persistent offender and the court was correct in submitting an instruction with no range of punishment.
Defendant next contends the court erred in allowing the state to elicit testimony concerning an incident three days after the assault. Specifically, a Detective Rahn testified that on the day they arrested the defendant, he saw a large framed nickel and stainless steel revolver in his hand. Rahn then told his partner and they both jumped off the porch. When they reached the rear оf the house they saw the defendant leaving and Rahn fired his weapon three times. The gun was never found. Defendant argues this was evidence of a separate crime and therefore inadmissible. While this is normally the case, if such proof has some legitimate tendency to directly establish the guilt of an accused upon the chаrge for which he is standing trial, it is admissible.
State v. Barnett,
The victim in this case testified that defendant not only had a big silver gun in his hand when he forced her from her apartment, but that he later hit her on the head with it. We believe the testimony was relevant to establish the identity of the accused as well as the availability to him of a means of committing the crime in the manner reported by the victim. See
State v. Cuckovich,
In his next point, defendant claims it was plain error for the court to permit evidence concerning defendant’s previous assaults on the victim because such evidence of other crimes was highly prejudicial and irrelevant. The plain error doctrine should be used sparingly and is limited to cases where it is shown that manifest injustice or a miscarriage of justice would result if the rule were not invoked.
State v. Simms,
Defendant next contends the trial court erred in permitting the state during re-direct to elicit testimony concerning threats and bribes made by persons other than the defendant. If a person other than the accused threatens a witness, such statements are inadmissible unless it can be shown the threats were made by the defendant’s request or with his consent and knowledge.
State v. Hicks,
Defendant further contends the court erred in admitting Exhibits 23 and 24 into evidence. First, he argues Exhibit 23, which was a Patricia Bellon’s medical records from 1978 was not relevant to аny fact in issue and that no foundation was presented linking those records to the victim. The record reveals the victim testified she had been hospitalized under the name Carol Bellon, due to previous beatings inflicted by the defendant. She also testified she did not indicate at that time who had beaten her. Hospital records revеaled no admission of a Carol Bellon. However, there were records on a patient Patricia Bellon with the diagnosis as multiple injuries to the face, chest, shoulders, and upper back associated to a physical assault by a known assailant. Patricia Bellon is the victim’s sister-in-law and testified she was not admitted to the hospital. Furthermore, the victim’s mother was listed as the person who brought the patient to the hospital. While the connection between the records and the victim is tenuous, we do not find the trial court abused its discretion in admitting them into evidence.
State v. Pickett,
As to Exhibit 24 which was an inventory return from a search warrant, defendant complains it was improper extrinsic evidence. On direсt examination, defendant testified that Detective Rahn arrived at his house claiming defendant had a large quantity of marijuana along with a machine gun, and proceeded to search the house without a warrant. Defendant claimed he did not have a weapon and had never had drugs in his home. As rebuttal evidence, the statе introduced a search warrant and an inventory return for defendant’s home, listing in part three bottles containing a substance believed to be marijuana, numerous capsules, pills, a shotgun, a .22 rifle, a military rifle, and drug paraphernalia. Defendant argues that a cross-examiner is bound by a witness’s answers to question involving collaterаl matters bearing solely upon the witness’s credibility.
State v. Charles,
Defendant also contends the trial court committed prejudicial error in admitting hearsay testimony. The controverted statement was that “she was crying in the back.” Defendant claims this was offered as proof the victim was indeed crying in the defendant’s backyard, thus constituting heаrsay. It is well settled that the testimony of a witness regarding introduction into evidence of an out-of-court statement offered as proof of the matter asserted therein is improper. See
State v. Harris,
Appellant contends that he was denied the presumption of innocence due a defendant in a criminal trial because the court allowed him tо appear before the jury clothed in his prison garb on the first day of trial. This point is without merit. It is well established that a prisoner cannot be compelled to appear in court in identifiable prison clothing. To compel an accused to display himself to the jury in attire readily identifiable as prison dress, disparages thе presumption of innocence and impairs a fair trial.
Estelle v. Williams,
Defendant next claims the court committed plain error in sustaining objections to questions directed to the victim since such questions were designed to test her credibility. Again, we review cases under the plain error doctrine if failure to do so would result in a miscarriage of justice.
State v. Simms,
Absent a clear abuse of discretion an appellate court will not fault the trial court’s ruling limiting the admission of evidence.
State v. Jones,
Defendant again alleges the court committed plain error in allowing the prosecutor during opening arguments to mаke erroneous statements concerning the victim because they were prejudicial and the prosecutor could not prove them. In order to preserve for appellate review any complaints of improper jury arguments, defendant must make his objections at the time the arguments are made.
State v. Higgins,
*623 “The scope and extent of the opening statement is largely within the discretion of the trial court, and the trial court must necessarily rely on the good faith of counsel in making their opening statеments to a jury as to material facts they intend to prove. The mere fact that no evidence is adduced as to some of the precise facts related to the jury in the opening statement is not sufficient to constitute error so prejudicial as to require the reversal of a conviction except where it сan be established, directly or by inference, that counsel making such statement had not intended to or knew that he could not, produce testimony to support such statement when made.”
We find the trial court was well within its discretion in permitting the prosecutor’s opening statements concerning the victim’s length of stay in the hospital and her knowledge of guns. Moreover, the jury was read MAI-CR 2d 2.02 informing them that opening statements are not evidence. We find no manifest injustice.
Finally, defendant raises several points in a pro se brief concerning the sufficiency of the information, an improper instruction, and failure to establish beyond a reasonable doubt defendant wаs a persistent offender, all of which he asks us to review as plain error. Rule 30.20 V.A.M.R.
Our review of defendant’s points and the record reveals first, that the indictment and information sufficiently apprised him of the crime with which he was being charged, secondly, Instruction 5 submitted the elements necessary to find first degree assault, and third, that the identity of first and last names authorizes a finding that defendant was the person previously convicted. See
State v. Newhart,
Judgment affirmed.
Notes
. MAI-CR 2d 19.02 provides in pertinent part:
"(If) you find and believe from the evidence beyond a reasonable doubt:
"(First, that) (That) (on) (on or about) [date] in the (City) (County) of_, State of Missouri, the defendant ...
attempted to kill or cause serious physical injury to [name of victim] by [insert means by which attempt was made], (and) ... then you will find the defendant guilty (under Count _) of assault in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
If you do find the defendant guilty (under Count_) of assault in the first degree, you will assess and dеclare the punishment at imprisonment for a term of years fixed by you, but not less than five years and not to exceed fifteen years(,)
(But if you further find and believe from the evidence beyond a reasonable doubt that the defendant committed such assault by means of a (deadly weapon) (dangerous instrument), then you will assess and declare the punishment at:
1. Life imprisonment, or
2. Imprisonment for a term of years fixed by you, but not less than ten years and not to exceed thirty years).”