A jury convicted Leo A. MeCullum (“Defendant”) of first-degree assault in violation of § 565.050. 1 Defendant was sentenced to thirty years’ imprisonment per the jury’s recommendation. Defendant’s brief on appeal contains six points relied on. This court affirms the judgment of conviction and sentence.
FACTS
The State charged in its information that on August 22, 1999, Defendant “attempted to kill or cause serious physical injury to Piper O’Neal (“Victim”) by setting her on fire, and in the course thereof inflicted serious physical injury on [Victim].”
The evidence adduced at Defendant’s trial included the following. Victim lived in Springfield, Missouri, with Defendant and his three children. On August 22, 1999, Defendant and Victim argued intermittently during the day about various topics.
After returning from shopping at approximately 9:30 p.m., Defendant and Victim quarreled again, this time in the ga
Eyewitness testimony by neighbors included the following. Barbara Lee, who lived next door, heard a “commotion” in her front yard. She stepped out to look and saw Defendant chasing Victim, and then Victim was engulfed in flames. Victim was screaming, “He set me on fire.” Also, Barbara witnessed Defendant drag Victim by her hair. Barbara ran back into her house where she told her son, Stan Lee, to call 911. When Barbara went back outside to get a water hose, Victim was lying on the ground and screaming for help. Defendant was gone.
Stan Lee testified he looked out his bedroom window after hearing a noise outside. He saw two people, a man and woman, chasing one another. Stan then saw the male figure reach out, saw a “flick of a cigarette fighter,” and saw the woman go “up in flames.” Next, Stan saw the male individual grab the female by the hair of her head. After calling 911, Stan went outside and found the Victim who was screaming, “He set me on fire.”
An emergency medical technician, Katherine Knapp, called to the scene to treat Victim, assessed Victim’s injuries as second and third-degree burns. While attending to Victim, Knapp heard Victim say, “Oh my god ... I can’t believe he fit me on fire!” When Knapp asked Victim who set her on fire, Victim responded, “Leo A. McCullum, the son of a bitch.”
After sheriffs deputies arrived and checked with Victim, they went to Victim’s and Defendant’s house. There they were met by Danielle, Defendant’s fifteen-year-old daughter. After Danielle let the officers in the house, they walked through its various rooms and into the garage to assure themselves the children were safe and that Defendant was no longer on the premises. During this walk-through, the officers saw blood in the entry hall and blood and a broken beer bottle in the garage.
Later, a search warrant was obtained. During its execution, the officers found and seized from the garage a broken bottle, blood, and an open five-gallon container of lacquer thinner. Pictures of these items and the can of lacquer thinner were admitted at trial over Defendant’s objection.
Additional facts are recounted as necessary during the analysis and discussion of Defendant’s points on appeal.
DISCUSSION AND DECISION
Point I: Information Error: No “Substantial Step” Attempt Charged
Defendant’s first point maintains the trial court erred when it refused to dismiss
The information here was filed before Withroiv was decided and was never amended. Until Withrow changed the law, if a first-degree assault information charged a person with attempt to kill or cause serious physical injury, the State’s burden was to prove a “common law” attempt; the State could not get a sustainable conviction with evidence that only met the lesser “substantial step” definition of § 564.011. MACH-CR 19.02 (10-1-98) “Notes on Use 6.”
Defendant argues that Withrow mandated the filing of an information in this case that conformed to MACH-CR § 18.02, i.e., an information that contained both an allegation Defendant engaged in described conduct and express language that “such conduct was a substantial step toward the commission of the crime.” Defendant asserts the “substantial step” allegation is now an element of a first-degree assault crime. 4 Based on that premise, Defendant insists the trial court committed reversible error when it refused to dismiss the information because it did not contain the “substantial step” language comparable to that found in MACH-CR 18.02(7-l-97). 5
When an essential element is omitted from an information, the sufficiency of that charging instrument is called into question. Any analysis of the sufficiency
In considering what is the appropriate standard of review, we note that the
Park-hurst
court relied on several federal cases in its analysis. Also, “[e]ach time our courts have compared the state and federal constitutional provisions, they have concluded that art. I, § 18(a) of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution.”
State v. Hester,
A sufficient charging instrument serves three constitutional purposes: (1) inform the accused of the charges against him or her so that he or she may prepare an adequate defense, (2) prevent retrial on the same charges in case of an acquittal, and (3) inform the court of the facts alleged to determine if those facts as alleged are sufficient, as a matter of law, to withstand motions (such as to dismiss) or support a conviction if one is to be had.
United States v. Hess,
Omitting an essential element from a charging instrument hinders these aforementioned purposes, but the extent and prejudicial effect of the hindrance must be judicially determined. Under the federal standard of review, constitutional errors can be held harmless only if found harm
Here, we need not decide if the Chapman standard, the Stringer standard, or another standard of review is to be used when a defendant timely challenges an information that omits an element. This follows because we find Defendant suffered no prejudice at all due to the omission of “substantial step” language from the information.
The first reason we find no prejudice is that Defendant’s trial counsel was on the committee that drafted the newly approved MACH-CR 19.02 which incorporates the substantial step language. Accordingly, in arguing to the trial court that it should dismiss the information against Defendant, defense counsel told the trial judge the committee would soon seek approval by the Supreme Court of Missouri of a charge form that contained such language; consequently, he insisted the information in Defendant’s case should include the substantial step language. To argue now that Defendant did not have adequate notice of the charges to prepare a defense is disingenuous.
Second, the
Withrow
decision was handed down approximately eight months before trial, and during that interim, Defendant failed to make any objection to the information until the day of trial. Also, it would be specious to argue one does not have adequate notice of “substantial step” attempt to prepare one’s defense because this was, in effect, included in the information that originally charged “common law” attempt. The
Withrow
court, in discussing the more difficult burden of proof under “common law” attempt, observed that the “[s]ubstantial step attempt was, in effect, a lesser included offense of common law attempt.”
Third, Defendant was in no way prejudiced because his ability to prepare a defense was not hindered depending on the type of attempt charged. This follows because his defense was that he did not intentionally set Victim on fire, i.e., he tried to show he was merely reckless. This defense would not have changed depending on the type of attempt.
Finally, the information was sufficient to plead former jeopardy. The information cited the statute and detailed the conduct from which the charges arose, i.e., setting Victim on fire. Moreover, the jury instructions made it clear that Defendant was convicted upon substantial step attempt. The information alone is not conclusive of the question regarding double jeopardy; one must look to the proceedings as a whole when analyzing double jeopardy claims.
State v. Stigall,
Point II: Instructional Error
Under Defendant’s second point, he argues that “a fatal variance and/or constructive amendment existed between the information, proof at trial, and instructions submitted to the jury in this case.” Defendant directs the court’s attention to Instruction No. 5 in which the term “attempt” was defined as the commission of “any act that is a substantial step toward
Initially, we note the concept of constructive amendment has no application here. Defendant has cited several federal cases that define when a constructive amendment occurs, but cites no Missouri precedent.
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A constructive amendment is reversible error
per se
because it is a direct violation of the Grand Jury Clause of the Fifth Amendment of the U.S. Constitution.
U.S. v.
Stuckey,
First, the Fifth Amendment right to a grand jury is inapplicable to the states through the Fourteenth Amendment.
Alexander v. Louisiana,
Second, Defendant was charged by
information
and not indictment. Consequently, no grand jury was involved and a prejudice analysis would be required even under federal precedent.
See Stuckey,
The second prong of Defendant’s Point II asserts there is a fatal variance between the information and the verdict-directing instruction. At the outset, we note Defendant has failed to preserve this alleged error for appellate review. This follows because Defendant has failed to adduce any argument beyond mere conclusions that he was prejudiced thereby.
State v. Perry,
A variance, standing alone, is not conclusive to the question of whether reversible error exists.
State v. Lee,
841
“To justify a reversal, the variance must be material and prejudicial to the rights of the accused. A variance is material when it affects whether an accused received adequate notice from the information. A variance is prejudicial when it affects the defendant’s ability to adequately defend against the charges presented in the information and given to the jury in the instruction.”
State v. Jones,
In this case, the reasons given in Point I on why the allegedly defective information did not prejudice Defendant are dispositive of Point II. Those reasons support our belief that the variance, if any, between information and instruction, was neither material nor prejudicial. We need not repeat those reasons here, other than to express our conviction Defendant had adequate notice and his ability to prepare a defense was in no way hindered. Point II is denied.
Point III: Error in Failure to Instruct on Third-Degree Assault?
In Defendant’s third point on appeal, he alleges the trial court committed reversible error when it failed to submit Defendant’s three proposed jury instructions on third-degree assault to the jury for consideration. Specifically, Defendant claims there was an evidentiary basis for the jury to have reasonably concluded that Defendant acted recklessly rather than purposely when he set Victim on fire.
Dispositive of Defendant’s third point is the fact that his proposed Instructions A, B, and C, on third-degree assault, were erroneous. As framed and proffered, Defendant’s instructions would have submitted third-degree assault as additional different offenses, not as lesser-included offenses. This follows because Defendant left out the following language that is mandated for a lesser-included offense instruction:
If you do not find the defendant guilty of [name of offense from immediately higher verdict director ] as submitted in Instruction No_, you must consider whether he is guilty of [name of offense from lesser verdict director ] under this instruction.
See
MAI-CR 3d 304.02, Notes on Use 3. Without this paragraph, Defendant’s proposed Instructions A, B, and C would not have correctly instructed the jury. A trial court does not err when it refuses to submit an erroneous instruction.
Parkhurst,
Moreover, for the jury to consider third-degree assault, it was first required to find Defendant not guilty of first-degree assault. Instruction number “9” proposed to the jury, reads as follows:
“If
you do not find the defendant guilty of assault in the first degree as submitted in Instruction No. 5, you must consider whether he is guilty of assault in the second degree .... ” (Emphasis supplied.) As stated in
State v. Householder,
“It is unnecessary to discuss the question of whether a third degree assault instruction was supported by the evidence, as the lack of an instruction of such nature, even if error, was harmless. The jury, by finding [Defendant] guilty of first degree assault, did not take the first step in reducing the offense to second degree assault. Under these circumstances, the jury could not have considered a third degree assault instruction, even if it had been given.”
Id.
at 328.
See also State v. Arellano,
In relying on
Householder,
we do not ignore
State v. Hibler,
“[T]he serial approach to instructing a jury is logical and should continue to be followed. If there is a basis for acquittal of the offense charged, it is indeed logical to instruct on any lesser included offenses in descending order to determine whether there is a basis for conviction. Once the court determines that a basis for a conviction on a lesser included offense exists and that there is no basis to convict of a (lower) lesser included offense, it is fair to stop the inquiry.”
Point IV: Did Publicity Preclude Use of Greene County Jury?
Defendant’s fourth point maintains that reversible error resulted when the court rejected Defendant’s many efforts to have a jury drawn from somewhere other than Greene County, Missouri. Defendant insists that “pretrial publicity occurred in this case which rendered it impossible for the potential jurors of Greene County to impartially render a decision as to [Defendant’s] innocence or guilt.”
Defendant urges reversal by asking this court to invoke a constitutional principle applied in
Irvin v. Dowd,
In
State v. Johns,
“ ‘In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.’ [quoting Irvin,366 U.S. at 722 ,81 S.Ct. 1639 ] The relevant question, then, is whether the pretrial publicity ‘so permeated the community as to render impossible the seating of an impartial jury.”
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“[To invoke the Irvin ] doctrine requires a high threshold of proof that is reserved for extreme situations. Consequently, a mere finding of exposure to pretrial publicity is insufficient to overcome the jurors’ assertions of impartiality.... ‘They [Irvin and its progeny] cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.’ To invoke the doctrine announced in Irvin, there must be a ‘pattern of deep and bitter prejudice’ or a ‘wave of public passion’ such that the seating of an impartial jury is impossible.”
Id. at 107-08[17-18] (citations omitted except for Irvin).
Contrary to Defendant’s claim, there was not here a “pattern of deep and bitter prejudice” or “wave of public passion” that made the seating of an impartial jury impossible. Questionnaires sent to prospective jurors asked if they had heard about the case through the media or Mends. Of the eighty-one prospective jurors summoned for this case, twenty-six answered this question affirmatively and were, therefore, questioned at length by the court and counsel concerning what they had heard. Those who remembered the ease had only vague, general recollections that a man was accused of setting a woman on fire. Some did not even remember the correct circumstances as reported. Moreover, thirteen of those twenty-six were struck for cause by the court. Only five of the remaining thirteen potential jurors who had some information regarding the case served on the petit jury.
Juror Morrison stated she received information from the newspaper and coworkers when the incident first occurred over one year prior. She further stated she did not remember any facts and had formed no opinions regarding the innocence or guilt of Defendant. Juror Brown stated she did not remember where she received pretrial information, but that it was probably from the newspaper. Moreover, she stated she had no opinion regarding the case because she only read the headlines. Juror Vance said she read about the case in the newspaper and heard about it on television, but “didn’t pay much attention” to the case. She assured the court that whatever she had heard about the case, it had not caused her to have any opinion about Defendant’s guilt or innocence. Juror Love said she did not remember much about the case because it had been a long time since she heard anything about it. The only thing she remembered was that a woman was set on fire and her limited knowledge had not led her to form any opinion about guilt or innocence. Juror Jenkins stated she had read something in the newspaper and heard something on TV about the case when the incident occurred, but hadn’t read anything since then. She remembered the case involved liquid that was thrown and the victim was allegedly set on fire. She stated she could judge the case solely on thev facts as adduced and the exhibits and the law as instructed by the court.
Therefore, the jury that convicted Defendant included five people who had heard “something” about the case, but did not remember any specific details.
12
The
In reaching this conclusion, we have considered when the publicity occurred, whether the media accounts were primarily factual, and whether the publicity contained inflammatory, prejudicial information not admissible at trial.
See State v. Deck,
The “high threshold” of proof needed to invoke the doctrine of presumptive prejudice has not been met here. Unlike
Irvin
and its progeny, this is not a case that was entirely lacking in the solemnity and sobriety to which Defendant was entitled in a system that demands due process and avoidance of mob rule.
See Murphy v. Florida,
Point V: E'iror in Ovemling Motion to Suppress?
Defendant alleges the trial court erred in denying his motion to suppress and admitting at trial over his objections certain alleged illegally obtained evidence. Specifically, Defendant “sought suppression of: (1) physical evidence seized after an initial warrantless search of his home and testimony related thereto; and (2) physical evidence seized from his home after issuance of an invalid search warrant and testimony related thereto.” We find no merit in this point.
In order to obtain reversal, Defendant must show the trial court’s ruling on the motion to suppress was clearly erroneous.
State v. Wright,
When considering whether a warrantless search and seizure is reasonable under the Fourth Amendment, we must first determine if the police are lawfully in the place from which they seized the evidence.
State v. Johnston,
There was ample evidence from which the trial court could reasonably infer exigent circumstances existed which justified the warrantless police entry into the home. Deputy Pounds (“Pounds”) stated he had been to the home on prior occasions and knew Defendant resided there. Moreover, Victim was screaming, “He set me on fire. He burnt me[;]” and Pounds believed Victim was referring to Defendant. Pounds testified he entered the home initially “to check” because he was not sure where Defendant was and “what state of mind he was in,” and due to the large number of people at the scene, he wanted to secure the scene, for “safety purposes.” Furthermore, Pounds knew children were in the home due to his prior contacts. Pounds also testified this “search” was done only for protection purposes and involved no searching for evidence.
The heinous offense was committed against Defendant’s live-in girlfriend who told Pounds that Defendant was the person responsible. The crime was committed next door to Defendant’s residence, and it was reasonable to assume Defendant fled there. It was also reasonable to believe that if Defendant was willing to harm his girlfriend, he might be willing to harm other loved ones, such as his children. When requesting to enter the residence, Defendant’s fifteen-year-old daughter consented to the entry. She told Pounds and his sergeant that Defendant was not in the house. However, this fact standing alone would not negate a reasonable belief Defendant was hiding therein and had told his daughter to lie to the police. In fact, the daughter admitted to lying to the police regarding other matters. Considering the nature of this atrocious crime, an eyewitness identification by Victim, the proximity of time and location to Defendant’s residence, and the potential harm to police, children, and others, the police would have been wholly remiss in failing to conduct a cursory sweep for protection.
The evidence of which Defendant complains in this regard, i.e., blood spatters and a broken beer bottle, was in plain view and discovered by Pounds and another officer during a lawful protective sweep and could have been seized at that time.
See Johnston,
The second prong of Defendant’s fifth point relates to a search warrant obtained by Detective Mark Hall (“Hall”) which Defendant claims is not supported by probable cause. Defendant points to false information contained therein which he claims Hall made knowingly or in reckless disregard of the truth. This subpoint is also without merit.
To successfully attack a search warrant on the basis of a misrepresentation, Defendant must make a substantial showing the affiant knowingly, intentionally, or with reckless disregard for the truth, included a false statement in the affidavit.
Franks v. Delaware,
The evidence seized pursuant to the warrant obtained by Detective Mark Hall (“Hall”) was the following: (1) a photograph of a container of lacquer thinner, (2) a photograph of a broken beer bottle and blood, (3) a container of lacquer thinner, and (4) the testimony of Hall that he saw these items in Defendant’s home. Hall admitted at the suppression hearing that some of the averments in the affidavit were false. However, this alone did not automatically invalidate the warrant. Hall testified that the crime scene was “mass hysteria,” and he believed every statement contained in the warrant application was true. Even assuming Hall intentionally misled the court or made the averments in reckless disregard for the truth, we must still examine the remaining statements to determine if the warrant was supported by probable cause.
In so doing, there was ample information contained therein establishing probable cause. Hall was an 18-year veteran of the police force. Hall saw the lacquer thinner, beer bottle, and traces of blood when he first arrived on the scene in plain view because the garage door was open and the light was on.
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Hall knew this to be the home of Defendant and Victim, the two had been “fighting” in the garage, Victim suffered severe burns, and Victim stated Defendant was the assailant. In determining probable cause, the issuing judge looks to the totality of the circumstances “to make a practical, common sense decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates,
Point VI: Trial Court Rulings of Defendant’s Motion In Limine
Defendant’s sixth and final point charges that the trial court committed reversible error by “ruling that [Defendant’s] prior
city conviction
in 1993 for trespassing and related bad acts were admissible [and] in overruling objections by [Defendant] to
Defendant filed a motion in limine in which he asked the trial court to “exclude any evidence of [Defendant’s] bad acts or municipal violations in either the State’s case in chief or in cross-examination of defendant should he take the stand to testify in his own defense.” As a pre-trial matter, the court asked the prosecutor if he conceded this motion. The prosecutor replied, “At this point I concede the motion.” He immediately qualified that answer, however, by explaining that if Defendant presented evidence of his alleged diminished capacity or otherwise advanced a defense that he lacked the requisite mental state to be convicted of felonious assault, the prosecutor would then ask the court to reconsider whether Defendant’s “in limine” motion should be sustained or overruled. Thereon, the trial judge ruled, “The motion in limine ... is granted for the moment[,]” but stated he might have to revisit the issue depending on what evidence was adduced at trial.
Not surprisingly, this “in limine” issue resurfaced. During defense counsel’s cross-examination of detective Arnott, the prosecutor suggested to the trial judge that defense counsel had gotten into the issue of intent. Specifically, he argued defense counsel had framed his questions to police officers about Defendant’s post-arrest statements so as to advance Defendant’s theory that Victim set herself on fire, that Victim was accidently set on fire, or that Defendant never intended to cause Victim serious physical injury. With that as his premise, the prosecutor insisted the defense had opened the door for him to present rebuttal evidence of Defendant’s prior bad acts toward Victim and his 1993 conviction for trespass.
14
To support his position, the prosecutor cited
State v. Smotherman,
Later, and just before the State rested, the trial judge ruled that his suspension of Defendant’s motion in limine would remain in effect for the time being. The judge explained: “[W]hile the defendant may or may not testify, I have chosen to not lift the motion in limine but ... will analyze the defendant’s ... case-in-chief and we’ll have that information in hand before I make a final decision on whether I’ll lift the motion for rebuttal.”
After the State rested, Defendant called his daughter, Danielle, as his first witness. After Danielle testified, defense counsel addressed the trial judge as follows:
“Before we make a final decision on whether to put [Defendant] on the stand, it appeared that you might — we weren’t sure ... but we thought you were inclined to let [the prosecutor] examine about the '93 incident if [Defendant] got on the stand and basically indicated that he didn’t set her on fire. If that is the court’s ruling, if it’s not thecourt’s ruling then we might make a different decision.”
This prompted a colloquy between the trial judge, defense counsel, and prosecutor that fills fifteen transcript pages. When fairly summarized, the outcome of them discussion was an announcement by the trial judge that if Defendant presented additional evidence on the issue of his intent, either by his own testimony or via an expert, he (the judge) was “leaning toward letting [the prosecutor] bring in the '93 incident by independent evidence[ ]” by use of rebuttal witnesses. Near the end of their discussion, defense counsel asked:
“Q. [I]f we don’t put on either [Defendant] or [the expert witness], would you permit [the prosecutor] to get into this other evidence?”
“A. THE COURT: Probably not.”
“Q. [DEFENSE COUNSEL]: Not?” “A. THE COURT: [I]f I have to just make it out of [Danielle’s] testimony beyond what I heard in the case-in-chief, I don’t think that would be enough to push it over the edge.”
A recess was then taken to allow defense counsel to talk with Defendant. When court reconvened, they announced Defendant was resting; that neither Defendant nor his expert would testify.
A motion in limine has the salutary purpose of pointing out to the court and to opposing counsel which anticipated evidence might be objectionable,
Gage v. Morse,
Here, the trial court’s rulings and announcements during trial regarding the questioned evidence were no more than extensions of the pre-trial motion in li-mine ruling and thus, were not final or conclusive of the matter. This follows because, after Danielle testified and the judge announced his “probable” ruling on the evidentiary issues posed by Defendant’s motion in limine, Defendant made two strategic decisions, i.e., not to take the stand and not to call his expert witness. Thereon, the State opted not to offer rebuttal evidence about Defendant’s prior bad acts or the related trespass conviction. Since the State never tried to present the questioned evidence, Defendant never had to object; consequently, the trial court never had a chance to rule on its admissibility against the backdrop of Defendant’s and his expert’s testimony or in light of other circumstances that might have existed had the State actually proffered the testimony. As the trial judge intimated during his colloquy with the respective lawyers, he could not make a reasoned and fully advised decision on admissibility of the bad conduct and trespass conviction evidence until he had either heard Defendant’s evidence, or at a minimum, until an offer of proof was made regarding that evidence. Neither of those events occurred; consequently, the trial judge’s rulings and comments were merely interlocutory and could not have constituted reversible error.
State v. Myszka,
Defendant’s real complaint appears to be that the trial court erroneously-ruled his motion in limine and that such error “materially impacted his decision not to testify.” Based on this reasoning, Defendant argues we must reverse his conviction. We disagree. Assuming
arguen-do
that the trial court’s in limine rulings were erroneous, they cannot, in this instance, constitute reversible error. Defendant and his lawyer simply made a strategic and justifiable decision not to testify based on the court’s interlocutory rulings.
See State v. Johnson,
Finally, to the extent Defendant’s Point VI seeks reversal on the theory the trial court “overruled objections” to evidence actually proffered for admission into evidence, Defendant is in effect asking us to convict the trial court of an error it did not commit. This we will not do.
See Mercantile Trust Co., NA v. Hardie,
The judgment of conviction and sentence are affirmed.
Notes
. All statute references are to RSMo 2000 unless otherwise indicated.
. Section 565.050, provides:
"1. A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.”
"2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.”
. In
Withrow,
the Supreme Court of Missouri specifically rejected the notion that there are two definitions of attempt in Missouri; the common law definition (evidence of “at least an apparent ability to commit the crime[,]”
State v. Reyes,
. We note that the Missouri Supreme Court has now promulgated MACH-CR 19.02 (effective 9-1-01), a new form for charging assault in the first degree. As worded, MACH-CR 19.02 (9-1-01) includes the "substantial step” language as part of the charging form information. Even so, "MACH-CR forms are not mandated for usage in the same sense that the MAI CR forms of pattern criminal instructions are required.” MACH-CR 1.00.2;
State
v.
Mitchell,
. In pertinent part, the MACH-CR 18.02 (7-1-97) charge reads;
"The ... (Prosecuting Attorney) ... charges ... that ... (on) ... [date], the defendant [Briefly describe the conduct of the defendant.'], and such conduct was a substantial step toward the commission of the crime of [name of the offense
. The Parkhurst court overruled cases which held that a court acquires no jurisdiction when an essential element is omitted from the charging document reasoning that sufficiency of the information and subject matter jurisdiction are two distinct concepts.
. In
State v. Isa,
. Defendant does not claim the state constitution reaches further than the federal constitution; consequently, we need only address his claims in light of the federal guarantees. See State v. Shaw, 847 S.W.2d 768, 773 n. 3 (Mo.banc 1993).
. These purposes are derived from the Fifth and Sixth Amendments to the United States Constitution in federal criminal prosecutions.
Russell,
. Federal constitutional rights against double jeopardy are commensurate with those guaranteed under the state constitution.
State v. Murphy,
. Independent research has uncovered one case which uses the term "constructive amendment.”
See State v. Marks,
. Although not dispositive in an
Irvin
analysis, the fact that the five jurors who had heard about the case claimed to have no pre-con-ceived notions about guilt or innocence, dis
. Defendant seems to argue that Hall should not have been believed because there was testimony from another officer that the light in the garage was off. This was a credibility determination for the trial court and will not be upset by this court.
. Although no offer of proof exists concerning Defendant's 1993 trespass conviction, we glean from the lawyers' colloquy that the facts associated with it were as follows: Defendant and Victim began arguing in public, Defendant called Victim a whore, and accused her of sleeping with someone other than him. After Victim went to a friend’s home. Defendant reacted by going there, kicking in the door, entering the bathroom, and holding Victim’s head under water.
. We decline to give plain error review of Point VI per Rule 30.20 due to the lack of any offers of proof. In the colloquy with the trial judge, defense counsel talked only in hypothetical and general terms about Defendant’s testimony and that of his expert. However, no offer of proof was made. The same situation attends as to the State’s rebuttal evidence. Without offers of proof, any discussion of Defendant’s Point VI argument would be merely advisory.