No. 12391 | Mo. Ct. App. | Sep 28, 1982
A jury found defendant guilty of attempt, (§ 564.011),
Defendant’s first point is that the information was defective. The information, exclusive of its formal parts and the persistent offender allegations, is set forth below.
These objections to the information are groundless. Defendant was not charged with burglary in the first degree. He was charged with an attempt to commit burglary in the first degree. The information is at least “substantially consistent,” Rule 23.-01(e), with MACH-CR 18.02, and thus it complies with Rule 23.01(b), dealing with
Defendant’s second point challenges the sufficiency of the evidence to support the verdict. The verdict was fully supported by the evidence. Defendant, in support of his second point, seeks to argue that his evidence of alibi was more worthy of belief than the evidence of the state. “[T]he weight of the evidence is not a matter reviewable by an appellate court.” State v. Talbert, 454 S.W.2d 1" court="Mo." date_filed="1970-05-11" href="https://app.midpage.ai/document/state-v-talbert-1719885?utm_source=webapp" opinion_id="1719885">454 S.W.2d 1, 4[6] (Mo.1970); see also State v. Greathouse, 627 S.W.2d 592" court="Mo." date_filed="1982-03-09" href="https://app.midpage.ai/document/state-v-greathouse-1669864?utm_source=webapp" opinion_id="1669864">627 S.W.2d 592, 596[5] (Mo.1982). Defendant’s second point has no merit.
Defendant’s third point is that the trial court erred in giving Instruction 6. The criticism leveled against the instruction was not made at the trial nor set forth in the motion for new trial. Accordingly the criticism has not been preserved for appellate review, Rule 29.11(d). This court has honored defendant’s request to review the criticism as “plain error,” Rule 29.12(b). This court has reviewed the instruction in light of the criticism and no error, plain or otherwise, appears. Defendant’s third point has no merit.
Defendant’s fourth point is that the trial court erred in giving Instruction 8, MAI-CR 2d 2.60, in that the jury was misled by the instruction. Defendant argues that the instruction told the jury, in effect, that the sentence of the court, if for a term of imprisonment, was “not to exceed the term declared and assessed by the jury in its verdict.” The verdict of the jury, in addition to a finding of guilt of the offense charged, assessed the punishment at “not less than one year in county jail.” The same criticism of MAI-CR 2d 2.60 has been reviewed and rejected in State v. Shepherd, 633 S.W.2d 206" court="Mo. Ct. App." date_filed="1982-04-06" href="https://app.midpage.ai/document/state-v-shepherd-5056898?utm_source=webapp" opinion_id="5056898">633 S.W.2d 206, 210[5-7] (Mo.App.1982). For the reasons there stated, defendant’s fourth point has no merit.
The judgment is affirmed.
. All references to statutes are to RSMo 1978, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.
. “The Prosecuting Attorney of the County of Greene, State of Missouri, charges that the defendant, in violation of Section 564.011, RSMo, committed the class C felony of an attempt to commit the offense of burglary in the first degree, punishable upon conviction under Section 558.011, RSMo, in that on or about the 19th day of January, 1981, in the County of Greene, State of Missouri, the defendant Terry A. Johnston pried with a screwdriver on the rear door of an inhabitable structure located at 3037 West Weaver Road, Springfield, Missouri, occupied by Sherry Ellen Payne, and such conduct was a substantial step toward the commission of the crime of burglary in the first degree of such inhabitable structure and was done for the purpose of committing such burglary.”