Terry Messa was convicted after a jury trial of forcible sodomy, § 566.060, RSMo 1994 and sentenced to 20 years imprisonment. He filed a pro se Rule 29.15 motion seeking to vacate thе conviction and sentence imposed. Appointed counsel filed an amended motion and requested an evidentiary hearing. The request for an evidentiary hearing was denied, and the motion court entered an order overruling Messa’s motion for posteon-viction relief.
Messa appeals the judgment of conviction and the denial of his motiоn for postconviction relief. The judgment of conviction and the order denying the Rule 29.15 motion are affirmed.
Frances Kroll and Terry Messa met in August 1998 at a private nursing home where they worked. An intimate relationship developed between them and, in September 1993, they rented an apartment together.
On October 11, 1993, Ms. Kroll called the YWCA Shelter for Abused Women and told the director that she was being held hostage and needed to get out of the apartment. The next day, Ms. Kroll went to the YWCA and again talked to the director. She explained that Messa had hit her and showed the director some of her bruises. The director then called the police. Ms. Kroll gave the police a written statement, and pictures were taken of her bruises. She remained at the YWCA until late November 1993.
Messa was arrested on October 12, 1993, at their apartment. He waived his Miranda rights and made a statement to the police. In his statement, he denied abusing Ms. Kroll.
At trial, Ms. Kroll testified that her relationship with Messa became violent and that Messa would beat her causing bruises. She testified that Messa forced her to have anal intercourse at least fivе times during the relationship without her consent. She also stated that she did not attempt to leave the relationship prior to October 12 because she wаs afraid of Messa.
Testifying in his own defense at trial, Mes-sa denied physically or sexually abusing Ms. Kroll. He also denied having anal intercourse with her.
In his first point on apрeal, Messa claims that the trial court erred in permitting the state to amend the information on the morning of trial. He argues that the amendment charged him with an additional and different offense which prejudiced him by rendering his defense inapplicable.
Rule 23.08 permits an information to be amended at any time prior to vеrdict or finding “if no additional or different offense is charged and if a defendant’s substantial rights are not thereby prejudiced.” Rule 23.08. It is, therefore, impermissible to amend an information if the effect of the amendment is to charge a different offense than that originally charged.
State v. Pikey,
In this case, the original felony information charged Messa with the felony of sodomy in that he “had deviate sexual intercourse with Frances Kroll, tо whom [he] was not married, by the use of forcible compulsion.” The first amended felony information, filed on the morning of trial, charged Messa with the felony of sodomy in that he “attempted to have deviate sexual intercourse with Frances S. Kroll, to whom [he] was not married, by the use of forcible compulsion” (emphasis added). An attempt tо commit forcible sodomy is a lesser included offense of forcible sodomy, therefore, Messa was not charged with an additional or different offense.
Furthermore, Messa’s defense that he did not force Ms. Kroll to have anal intercourse and that her allegations were not credible was equally availablе to him after, as well as before, the amendment of the information. Likewise, the evidence regarding Ms. Kroll’s credibility was equally applicable to defend a charge of attempted forcible sodomy. Mes-sa, therefore, was not prejudiced by the amendment before trial. Point one is denied.
In point two, Messа contends that the motion court erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. He claims that his trial counsel was ineffective in failing to remove a venireperson by motion to strike for cause or by peremptory strike.
Appellate review of the denial of a post-сonviction motion is limited to a determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. Rule 29.15(j);
State v. Nolan,
To prevail on an ineffective assistance of counsel claim, a movant must show that (1) his attorney’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced the defense.
Strickland v. Washington,
To be entitled to an evidentiary hеaring, (1) a movant must allege facts, not conclusions, which, if true, would warrant relief, (2) the facts must raise matters not refuted by the record, and (3) the matters complаined of must have resulted in prejudice to the movant.
Gillespie v. State,
During voir dire, the panel was asked if it would have difficulty in giving any weight to the victim’s testimony knowing that she could have left the relationship at any time but chose not to leave because she was afraid. In response, Venireperson Sollars approached the bеnch and answered:
My son and daughter both had abusive marriages which was physical as well as mental. And neither one of them left it, you know, when they could have because they were afraid. And they was — I don’t know — eoerced into believing that it was their fault that they were getting pummeled around.
And I don’t think I have any difficulty with it, but I want you to know that. But I can understand why a women wouldn’t leave. I can understand. I would.
I could see both sides of it. I mean I know I would leave. But I can understand why they didn’t.
Messa’s defense at trial was to show that Ms. Kroll’s allegations were not credible because she did not leave the relationship. He ar *56 gues that there was no reasonable likelihood that he would have convinced Venireperson Sollars of the proposition when her own children had not left abusive relationships.
“Where a venirеman’s answer to a question suggests a possibility of bias, and upon further questioning the venireman gives unequivocal assurances of impartiality, the bare possibility of рrejudice will not disqualify the venireman or deprive the trial judge of discretion to seat him.”
Ogle v. State,
The judgment of conviction and the order denying the Rule 29.15 motion are affirmed.
All Concur.