author: PREWITT, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jason Clay CARR, Defendant-Appellant.
    No. 13594.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 8, 1985.
    Motion for Rehearing or Transfer to Supreme Court Denied March 4, 1985.
    Application to Transfer Denied April 30, 1985.

      John D. Ashcroft, Atty. Gen., Gary L. Gardner, Thomas Carter, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    C.J. Larkin, Columbia, for defendant-appellant.
   PREWITT, Chief Judge.

A jury found defendant guilty of three counts of capital murder for killing his stepmother, his stepsister and his brother. For each offense, defendant was sentenced to life imprisonment without eligibility for probation or parole for fifty years. He appeals.

On March 15, 1983, defendant was 16 years of age and lived east of Hartville in Wright County with his father, his brother, his stepmother, and her daughter. Defendant was enrolled in high school and that was a regular school day, but he did not attend. He had stayed with his grandmother the night before and then returned to the house where he lived after the others had left. The record indicates that defendant had not previously been in serious trouble and that he was a good high school student, generally getting “A’s and B’s”.

At approximately 4:15 p.m. defendant’s brother, Andrew Carr, and his stepsister, Emma Downey, got off a school bus near their home. After they entered the house defendant shot Andrew in the left side of the back of his head and in front of his right ear. Gunpowder residue indicated that the shot to the right ear occurred at close range. Emma was shot in the back and in the left eye. After Patricia Carr arrived home from work at approximately 4:35 p.m., defendant shot her above the right eye and in the right temple. The wound to the temple indicated the shot was from close range.

Aaron Carr, defendant’s father, came home at approximately 5:10 p.m. He saw a shovel in the front yard which had not been there when he had left that morning and the front curtains of the house were closed. Normally they were open. After Aaron Carr entered the house, defendant attempted to shoot him with a single shot .22 caliber rifle but it did not fire. As defendant tried to insert a different .shell in it, his father took the rifle from him. The others had been shot with that rifle. After defendant was disarmed he cried and. told his father, “I killed them all”. He said he killed his brother, even though he loved him.

A psychiatrist employed by plaintiff at the State Hospital in Farmington was called as a witness by defendant. He testified that defendant did not suffer from a mental disease or defect excluding criminal responsibility. He said defendant “saw his father as an extremely evil force in his environment” and “as patronizing his stepmother, stepsister and his brother”. The psychiatrist said defendant killed them “to get back at his father”. The psychiatrist testified that defendant thought his father was evil because he placed restrictions on him.

Defendant’s parents were divorced “about 10 or 11 years” before the trial. For some time defendant’s father had a “problem with drinking” and in 1965 was sent to the penitentiary for statutory rape. Ten years before the trial he quit drinking alcoholic beverages and became a devout member of a Jehovah’s Witnesses congregation. Apparently because of his religious beliefs he placed restrictions on defendant about which they conflicted. Defendant, who was six foot seven inches tall, was not allowed to play on the high school basketball team because its schedule conflicted with the family’s “home bible study”. He was prohibited from playing video games or from watching certain television programs.

Defendant was not allowed to date a girl who did not go to the same church. There was evidence that when his father learned of defendant’s fondness for the girl he made him renounce her in church, and that on the night prior to the shooting defendant was “rebuked and ridiculed by his father during church services because of his failure to recite a passage from the Bible”. The evidence indicated that defendant was hostile toward his brother because his conduct received approval from their father.

The first contention of defendant that we discuss is that the trial court erred by refusing his instruction submitting to the jury the defense of mental disease and defect excluding criminal responsibility. He asserts there was substantial evidence to support the instruction.

Defendant is presumed to be free of mental disease or defect excluding responsibility, and whether he had such a mental disease or defect was for the jury to decide if there was substantial evidence of lack of such responsibility. § 552.030.7, RSMo Supp.1982. An instruction submitting mental defect or disease excluding responsibility should be given only where there is substantial evidence to support it. State v. Middlemas, 654 S.W.2d 355, 357 (Mo.App.1983).

The psychiatrist employed by the state was the only expert witness on this issue. He testified that defendant did not suffer from such a disease or defect. The record also indicates that defendant was examined by another psychiatrist at his mother’s expense. Apparently that psychiatrist reached the same conclusion. In this point defendant relies primarily upon the testimony of his mother, Chris Dillingham. That testimony is summarized in the next four paragraphs.

After his parents were divorced, defendant initially lived with his paternal grandmother. He stayed there for approximately a year and a half and then lived with his mother and her then husband. Mrs. Dill-ingham had “legal custody”, but because her husband verbally threatened defendant and physically abused him, he left to live with his father.

Following her second divorce, defendant lived with his mother in Cahokia, Illinois, from the fall of 1982 until the last week of January 1983. Early in January he received a phone call from his father and afterwards quit the basketball team. After the call he became moody and would eat little and would not see his friends. When he came back to live with his mother he had brought “a lot of Jehova Witness books and pamphlets”. At that time he wanted to throw them away but his mother said he should not because of their cost. He stored them in a closet and after the phone call he brought them out and started reading them.

The last week of January of 1983, apparently at defendant’s request, his mother took him back to Wright County to live with his father. About “a week or two” prior to the shooting Mrs. Dillingham received a phone call from defendant. She said defendant was “upset” and she knew something was wrong. “He kept saying he was trying to do the right thing but everything he did it was bad and he said his dad kept telling him he was bad because he wanted to play basketball and he wanted to drive and he wanted to date this one girl that wasn’t Jehovah Witness and that he tried to be good but he was always getting into trouble for something.”

Defendant told her that his problem “had to do with the church because he wanted to do these -things and they kept telling him that he was bad because he wasn’t going by their rules.” She said he asked, “Is there only one religion and one church?” She told him that there was not. Mrs. Dillingham testified that at the time of the phone call defendant suffered from a mental disease or defect and she had no reason to believe that he changed in the seven to ten days after the phone call. She said that at the time she talked to him by phone he did not have “a mental state where he could calmly and coolly reflect on killing someone.”

Defendant’s father testified regarding defendant’s conduct after returning to Wright County. He said that one evening after the family had gone to bed, he found a large meat fork on the kitchen counter and a baseball bat next to the door of the parents’ bedroom. Neither article had been there when the family retired. He then found an eight to twelve inch butcher knife lying on the floor underneath defendant’s bed. When questioned about it, defendant stated that he “barely” remembered getting the knife.

Aaron Carr further stated that after he reprimanded defendant for watching a violent television movie defendant said “something was after him.” Defendant then told his father that he was scared and had difficulty sleeping. Mr. Carr testified that he didn’t think defendant had a mental problem at the time of the shooting, “I couldn’t tell it at that time if he had one.” While in jail defendant attempted suicide and had nightmares and inability to sleep.

Obviously, the defendant’s acts were not those of a rational person. No normal person would have done the things with which defendant is charged for the reasons advanced. Those acts, more than Mrs. Dill-ingham’s testimony, indicate that defendant had severe mental problems.

However, based upon the previous decisions of this state, we reluctantly conclude that the killings and the other evidence fall short of being substantial evidence that “as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct 6r was incapable of conforming his conduct to the requirements of law.” See § 552.030.1, RSMo Supp. 1982.

The inquiry we are to make is whether there existed substantial evidence of defendant’s mental irresponsibility at the time of the homicides. State v. Brizendine, 391 S.W.2d 898, 901 (Mo.1965). While great latitude is allowed in the admission of evidence, where a defense of insanity is interposed, the evidence must be relevant and material to defendant’s mental condition at the time of the commission of the act charged. Id.

In Brizendine the report of a psychiatrist concluded that the defendant did not suffer from mental disorder which would render him incompetent and irresponsible. The court found the psychiatrist’s determination that the defendant was a “schizoid personality” together with his unusual conduct before, during and after the killing did not establish insanity which is a defense under our law and that an instruction on mental disease or defect excluding responsibility was not required. 391 S.W.2d at 902-903.

In State v. Thomas, 625 S.W.2d 115, 124 (Mo. 1981), the court found that evidence of hostility and antagonism which the defendant felt toward the police, and specifically toward the victim, was insufficient to support a submission that defendant had a mental defect excluding responsibility. Two psychiatric evaluations indicated no mental disease or defect.

A psychiatrist testified in State v. Foerstel, 674 S.W.2d 583, 591 (Mo.App.1984), that at the time of the incidents defendant was charged with, the defendant had “dissociative neurosis”. The opinion describes this as “a dream-like state brought on by stressful situations.” At the time he was examined by the psychiatrist defendant “could not conform his conduct to the requirements of law because of the trance-like or dream-like state.” When asked on cross-examination, “is it your opinion that the defendant does not suffer from a mental disease or defect,” the psychiatrist answered, “yes, sir.” The psychiatrist did not say that at the time of the occurrences in question the defendant suffered from mental disease or defect. The court concluded that there was not substantial evidence of a mental disease or defect under § 552.030.1 and ruled that the trial court properly refused an instruction on that defense. 674 S.W.2d at 592.

In State v. Vansandts, 540 S.W.2d 192, 196 (Mo.App.1976), reports of three psychiatric examinations showed that the defendant “had a history of antisocial behavior and suffered from alcoholism but did not suffer from a psychosis or a mental disease within the meaning of Chapter 552.” Defendant’s conduct was unusual during the acts charged and the trial, and he had been hospitalized and had attempted suicide. The court found that this was not substantial evidence of a mental disease or defect showing lack of responsibility requiring its submission to the jury. 540 S.W.2d at 205.

Expert testimony was offered in State v. Olinger, 396 S.W.2d 617, 620 (Mo.1965), that the defendant’s acts were “incompata-ble and inconsistent with normal behavior” and that he did not have “full possession of his mental faculties” at that time. The court held that an instruction on mental disease or defect was unnecessary because the psychiatrist’s “testimony was so speculative, vague, and contradictory that it lacked the certainty necessary for probative value with respect to the issue on which it was offered.” On the whole record the court determined there was no substantial evidence to support the instruction.

Defendant’s conduct was abnormal, but there was no evidence at the time of the acts charged that his mental condition was such as to prevent him from knowing or appreciating the nature, quality or wrongfulness of his conduct or that it made him incapable of conforming his conduct to the requirements of law. Absent such a showing there was no substantial evidence to require an instruction on this issue. The point is denied.

We next discuss defendant’s contention that the trial court erred in denying his motion to dismiss the charges because the juvenile proceedings against him were improperly dismissed due to his receiving ineffective assistance of counsel in the juvenile court. He asserts that his attorney was ineffective because the attorney did not present “evidence in appellant’s favor and did not adequately cross-examine the witnesses presented against the appellant.” At the time of that hearing defendant was represented by hired counsel, apparently secured by his mother. Thereafter and through the trial he was represented by the public defender.

Five days before trial defendant filed a motion to dismiss the information on this ground “due to the Court’s lack of jurisdiction because of the improper transfer of this case from the Juvenile Division.” The transcript contains the proceedings during the hearing on the juvenile officer’s motion to dismiss, see § 211.071, RSMo 1978 (since amended, see § 211.071, RSMo Supp.1983), but does indicate a hearing was held on defendant’s motion.

A contention of ineffective assistance of counsel may be raised on direct appeal. State v. Lumsden, 589 S.W.2d 226, 230 (Mo. banc 1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2967, 60 L.Ed.2d 841 (1980). However, it must be denied if the record is not sufficiently developed to make the determination that counsel was ineffective. State v. Mitchell, 620 S.W.2d 347, 348 (Mo. banc 1981).

To establish ineffective assistance of counsel defendant must show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Powers v. State, 673 S.W.2d 506, 507 (Mo.App.1984). No such showing was present here.

The record does not reveal what, if any, witnesses could have been called or in what manner the cross-examination was ineffective. Allegations in a motion or in a brief unsupported by the record cannot be the basis of error. State v. Hummel, 652 S.W.2d 749, 751 (Mo.App.1983); State v. Friend, 607 S.W.2d 902, 904 (Mo.App.1980). This point is denied.

Defendant’s remaining contention is that the trial court erred in denying his request for a change of venue. He asserts that the inhabitants of Wright County were prejudiced against him because of pretrial publicity regarding charges filed against him ten days before the trial on these charges.

A motion for change of venue was filed on November 21, 1983, seven days before the trial commenced. The motion alleged that the inhabitants of the county were prejudiced against defendant and that the plaintiff had undue influence over them. It requested that venue be changed “to a county not extensively covered by the Springfield news media; or in the alternative, to an adjoining county within the Circuit, such as Douglas County.” This request was caused, according to the motion, by news media reports of sodomy and assault filed against defendant on November 18, 1983, allegedly for activities of the defendant while he was in the Wright County jail. Counsel for defendant stated that he first became aware of the charges “while listening to the radio on Friday evening Nov. 18, 1983.”

The motion alleged that a change of venue was required by Rule 32.09(c) “due to reasons of fundamental fairness”. Attached to the motion were affidavits of three residents of Wright County stating that defendant could not receive a fair trial in Wright County because of the prejudice of the inhabitants against him. Also attached were newspaper articles published in the Springfield Leader and Press on November 18, 1983, and in the Springfield News and Leader on November 19, 1983. Both refer to charges of sodomy and assault filed against defendant for incidents occurring in the Wright County jail and state that he is scheduled to stand trial on three capital murder charges on November 28, 1983.

Defendant’s brief contains an appendix with three exhibits, a report of the Bureau of Census, estimating the population of Wright County to be 16,400 people, an affidavit of Jane A. Meyer, Vice President and General Manager of radio station KTXR, including a coverage map which shows that the radio station is heard in Wright County, and an “ABC Audit Report: Newspaper”, showing that for the 52 weeks ending December 25, 1983, the average circulation of the Saturday morning and Sunday Springfield newspapers in Wright County was 1,511.

The record does not indicate that these exhibits were presented to the trial court and plaintiff in its brief denies every “fact” defendant claims is established by reference to these exhibits. Plaintiff does admit that Wright County has fewer than 75,000 inhabitants. Obviously, as these exhibits are not part of the record, we cannot consider them, but even had we, the result is the same.

As the application for change of venue was not filed within thirty days after defendant’s arraignment, it was not timely under Rule 32.03(a) and defendant did not have an absolute right to a change. However, as defendant contended at trial and here, a trial judge should order a change of venue even when that rule is not followed “when fundamental fairness so requires”. Rule 32.09(c).

A hearing on the motion was held on November 21, 1983. At the hearing evidence was presented regarding the newspaper articles and that KTXR, a Springfield radio station, had reported that defendant was charged with three counts of sodomy and one count of assault.

After the judge indicated he might deny the motion, counsel for defendant asked “for permission to voir dire the individual jury members, the ones that say they have individual knowledge of the case in camera.” The judge said that he would allow it, “I’ll rule that you can examine each and every one of them individually or however you want to in camera.” Then the trial judge denied the motion and stated to defendant’s counsel, “perhaps it may develop that there’s enough passion and prejudice in the jury panel that you may choose to renew your motion.”

Granting or denying a change of venue rests within the trial court’s discretion. State v. Boggs, 634 S.W.2d 447, 457 (Mo. banc 1982); State v. Chaney, 663 S.W.2d 279, 286 (Mo.App.1983); State v. Molasky, 655 S.W.2d 663, 665 (Mo.App.1983), cert. denied, — U.S. -, 104 S.Ct. 727, 79 L.Ed.2d 187 (1984). See also State v. Harris, 670 S.W.2d 73, 77-78 (Mo.App.1984). To find an abuse of discretion the record must establish that the minds of the inhabitants of the county are so prejudiced against defendant that a fair trial cannot be had there. State v. Molasky, supra, 655 S.W.2d at 666. The trial judge is in a better position than an appellate court to assess the effect of publicity on the inhabitants of the county and to determine whether the people in the county are so prejudiced against defendant that a fair trial would be impossible. Id.

We cannot say that there was abuse of discretion here. Also, prejudice to defendant was not established by the voir dire of the jury panel. The names of 86 potential jurors were called. The record does not disclose the number of jurors who indicated they heard about the case from the news media. When asked, eleven said they could not set what they had heard from the media aside and decide the case only on the evidence. They were excused for cause. Ten veniremen said they had talked to someone who professed to have personal knowledge of the case and six of those said this would prevent them from deciding the case solely on the evidence. Those six were also excused for cause. No one was asked specifically what they had heard or about the sodomy or assault charges.

Prior knowledge about a case does not require that a potential juror be stricken when such knowledge does not preclude their reaching a verdict based upon the evidence at trial. State v. Hayes, 624 S.W.2d 16, 19 (Mo.1981).

Exposure to publicity is not deemed inherently prejudicial and a juror may be sworn if he is able to set aside any opinion formed from the publicity. State v. Molasky, supra, 655 S.W.2d at 667. The trial court is in a better position than we are to measure and evaluate a venireman’s demeanor. Id.

The court struck for cause everyone that defendant’s counsel asked be stricken because of prior knowledge. The record shows that everyone who stated they could not decide the case on the evidence apart from what they may have seen or heard was excused. No jurors were individually examined, but there is no indication that defendant’s counsel sought to do so nor does the record indicate that defendant’s counsel was denied any request he made during the voir dire pertaining to prior knowledge. Nothing indicates that the jurors could not or did not put what they had heard aside or that defendant did not receive a fair trial.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


source: Caselaw Access Project

author: BERREY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Danny CLOSTERMAN, Appellant.
    No. WD 34870.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.

      Fred Duchardt, Public Defender, Peter M. Sehloss, Asst. Public Defender, Liberty, for appellant.
    John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   BERREY, Judge.

The defendant, Danny Gene Closterman, was convicted of manslaughter in the death of his three and one-half year old stepdaughter, Colleen. The jury imposed a sentence of ten (10) years in the Missouri Department of Corrections. From this sentence defendant appeals and raises three points of trial court error: (I) insufficient evidence existed to support a guilty verdict, (a) because evidence established a number of possible causes of death, (b) because no credible or substantial evidence that defendant committed any act upon decedent causing her death existed in that the State established date and time of death as 1:49 p.m. on July 19, 1982. The State acknowledged that the only evidence of criminal agency attributable to the appellant was that he struck blows upon the decedent in the late evening of July 19, 1982; (II) the trial court erred by not suppressing appellant’s statements because they were not voluntary and there was no probable cause to arrest defendant in the first instance; (III) the Superior Court of Navajo County, Arizona, erred in refusing to issue a summons directing defendant’s wife to attend and testify at trial in Missouri. The three page multi-faceted point is contrary to Rule 84.04. It fails to state “briefly and concisely what actions or rulings of the court are sought to be reviewed.” Nevertheless, an attempt is made herein to dispose of this point which pertains generally to out-of-state witnesses.

Initially the defendant errs in stating the time and date of the death of Colleen. The State’s hypothetical to the pathologist accurately reflects the time and date of death as July 20, 1982 at 1:49 p.m., at least twelve hours after defendant stated he struck the child in her stomach with his fist. In addition, Officer Steve Duke, of the Kansas City, Missouri, Police Department, who responded to the emergency call, a defense witness, acknowledged the call and his response occurred on July 20, 1982.

Dr. Bonita Peterson, Jackson County Medical Examiner, stated unequivocally that the injury to the abdominal area was the cause of death. It should be pointed out that the decedent was three and one-half years of age and weighed approximately thirty pounds; that the defendant, her step-father, was a large man who weighed about two hundred twenty-five pounds and had large hands.

From a complete reading of the transcript there is no doubt that the little girl was terribly abused over a prolonged period of time. Defendant maintains that his wife, Colleen’s mother, was the abuser. According to Joan Capps, defendant’s sister, early in June, 1982, Colleen’s arm had been burned from the shoulder to the elbow about halfway around, “It was pure red and no skin whatsoever.” Mrs. Gail Thompson, a sister of defendant, had Colleen in her care the last week of June in 1982, and testified, “She was really quiet and her stomach was big and hard.... She drank an extra lot of water and didn’t have a bowel movement while she was there, so I thought that was the reason that it [stomach] was hard.” Thompson thought she was starving due to the bloated condition of the stomach and though she fed Colleen, Colleen could not keep the food down.

Craig Jones, a stranger to defendant, went to visit Mimi Wilson, a neighbor of the Closterman’s when they lived in Phoenix, Arizona. While waiting at Mimi’s door he heard a female child whine and an adult female tell her to “shut up” and then a couple of blows. It sounded like a whip and then smack to the skin and then a scream. This went on at least two minutes. The incident took place at the end of May or the first of June, 1982.

Mimi Wilson, testifying by deposition, acknowledged she was a neighbor of defendant and his wife and knew them for six months. They moved into an apartment across from her in January or February and left in June or July. Mimi stated she was aware of unusual activity in the defendant’s apartment, “The abuse of Colleen.” When they first started moving in Mimi observed Mrs. Closterman strike Colleen with her belt, heard Colleen crying, and Mrs. Closterman yelling and screaming. The episode lasted about ten minutes.

Grace Souder, next door neighbor of the Closterman’s, in July, 1982, testified she observed Colleen at play and that despite the hot weather, Colleen did not have a lot of energy. She barely was able to walk. “And she was holding her stomach and she threw the little ball and she’d just barely pick it up. And finally she just sat down underneath the tree and held her stomach again.”

On July 19, the defendant had been watching television with his wife Sherry. During the course of the evening he drank a couple of beers and several Jim Beam bourbons mixed with Pepsi. According to defendant, he had between three and six drinks. Sherry left to go for snacks. During her absence defendant went through Colleen’s room to the bathroom and Colleen was awake. The following is excerpted from defendant’s statement:

As I went in I saw her setting up in bed. She said, “Hi” to me, or something like that. I told her to lay down and go to sleep. Her bed was a mattress on the floor, and she should have already been asleep_ When I finished [in the bathroom] and came out, I asked Colleen why she didn’t mind me, about laying down and going to sleep. She shrugged her shoulders and said she didn’t know. I told her something like, for her to talk with me and to answer me. I asked her again, why she hadn’t minded, and she said she didn’t know, she just wanted to sit in bed. Then she was laying flat down on the mattress. I may have knelt over her, or beside her. I hit her with my fist several times, in the stomach. Then I found myself out in the hall, shaking and sweating. This has happened to me when I had hit her before. ...

The MAST Ambulance Company responded to the Closterman’s home at 4151 North Hardesty to pick up a little girl named Colleen, “a non-breather.” Attendant Klate picked up the child in the house and ran to the ambulance. The child was administered CPR and mouth to mouth resuscitation and taken to the emergency room at the North Kansas City Memorial Hospital, where further life saving techniques were employed, to no avail. The Clay County coroner was not available and the Jackson County Medical Examiner was contacted to perform the autopsy. The autopsy took place July 21, 1982.

Dr. Peterson stated she had:

Four diagnosis. The first one is the most important, blunt force abdominal injury, acute and chronic, with scarring and fat necrosis, especially in the region of the pancreas and root of mesentery; old blood in peritoneal cavity, apparently related to omental and mesenteric lacerations; recent hemorrhage along mesen-teric border of small intestine and pericecal area, that’s in (indicates) the region of the appendix. Both leafs of the diaphragm and focally in intercostal muscle. That’s in the chest between the ribs.
The State then asked:
Q. Can you put that in lay language, doctor?
A. Okay, blunt force admoninal injury in the pit of the stomach causing the scarring and hemorrhage in various areas.

Dr. Peterson was asked if the injuries to the abdominal area caused the death, her plain answer was yes. She was asked:

Q. Do you have an opinion consistent with reasonable medical certainty of the cause of death?
A. Yes, it was my opinion that the child died as a result of blunt force injury to the abdomen.
Q. To the abdomen?
A. Yes.

The doctor testified that there was a causal connection between the blows to Colleen’s stomach and her death. It would serve no purpose to detail the many other injuries that Colleen had had inflicted on her tiny body.

The trial court properly denied defendant’s motion for acquittal because as alluded to there was ample evidence both direct and circumstantial viewed in light most favorable to the State to sustain the conviction. State v. Mayes, 654 S.W.2d 926, 928 (Mo.App.1983).

In each case we must review the evidence and determine whether the finding of guilt was supported by substantial evidence. The weight of the evidence is for the jury if the reviewing court can first find substantial evidence. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51 (1936); State v. Mayes, supra, at 928.

Dr. Peterson’s medical opinion coupled with the corroboration evidence is sufficient to establish that defendant caused the death of Colleen. The evidence does not have to exclude other possibilities of the cause of death.

In appellate review of sufficiency of evidence, all evidence and inferences in the record tending to support the jury’s finding the defendant guilty are accepted as true, and all contrary evidence and inferences are to be disregarded.

State v. Mondaine, 655 S.W.2d 540, 543 (Mo.App.1983).

The State is required to prove the cause of death beyond reasonable doubt and may do so by circumstantial evidence. Holtkamp v. State, 588 S.W.2d 183, 188 (Mo.App.1979).

In the instant case there is ample evidence to demonstrate the victim died from a blunt force blow to the abdomen.

The prosecutor asked Dr. Peterson:

Q. Did you, from the examination do you have an opinion consistent with reasonable medical certainty of the cause of death?
A. Yes, it was my opinion that the child died as a result of blunt force injury to the abdomen.

The appellant alleges the State failed to accurately prove the date and time of death. Yet, Dr. Peterson acknowledged that the death occurred at 1:49 p.m. on July 20, 1982. Dr. Peterson also gave evidence that if Colleen had not suffered previous abuse the fact that appellant hit her in the stomach would not have resulted in her death. The combination of the old injuries and the blows defendant inflicted on July 19, 1982, was more than Colleen could endure.

Dr. Peterson’s testimony reveals that Colleen endured extreme hardships for her three and one-half years. Dr. Peterson testified:

There was an abrasion of the nose and there was blood in the nostrils, which may have related to resuscitative attempts.
There were old scars on the knees and shins. There was three inch irregular smooth area of scarring of the upper arm. The abdomen was distended. On the back there were areas of depigmentation of the skin, in other words scarring, areas of scarring. Also there was a small abrasion on the left side of the mid-back.
There were some areas of old scarring, white, smooth surface scars on the right forearm near the elbow.

Upon opening the body cavity Dr. Peterson found:

There was about two hundred c.c.’s of old, brown liquid and semi-liquid blood free and also coating the surfaces of the intestines and the liver.
There were multiple areas of laceration of the omentim and mesentery. And there were areas of ... fat necrosis, in other words disentigration of the fat representing injury with extensive scarring in the same area idicative of old injury.
There was some damage under the capsular surface of the liver which represented injury also.

Dr. Peterson testified the injuries were not a “one time thing,” and the scarring and hemorrhaging of various abdominal areas were, “multiple areas of trauma, or multiple incidents of trauma, episodes of trauma.”

The doctor found no causal connection between the old injuries to the back, arm and nose with the death of Colleen. Accordingly, “the child died as a result of blunt force injury to the abdomen.”

Appellant’s Point I is denied.

The appellant was apprehended pursuant to a decision of Kansas City, Missouri, Police Department Officer Watts. The decision was based upon the fact that: the child was in the continuous custody of the Clostermans immediately prior to her death; that Dr. Rodas, the first physician to examine her found her dehydrated with a swollen stomach; that the autopsy itself revealed previous and present trauma; that a Phoenix, Arizona, officer upon hearing of Colleen’s death from relatives in Arizona called Officer Watts and informed him that both Mr. and Mrs. Closterman were under investigation in Arizona for child abuse and fled Arizona while under investigation; and finally that Dr. Peterson “was ruling it a homicide, child abuse.” Such information when taken together constituted probable cause for Watts to seek defendant’s arrest.

At the suppression hearing and again at trial, the appellant raised issues of unlawful arrest and involuntary statements. In a complete and thorough recitation the trial court found that there was probable cause vis-a-vis the aforementioned facts that Watts was operating under, and that Clost-erman’s rights against unreasonable search and seizure as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, Section 15 of the Missouri Constitution were not violated.

Probable cause does not mean absolute certainty and the facts at hand justified the action taken by Watts. State v. Morris, 522 S.W.2d 93, 96 (Mo.App.1975).

The court held in State v. Purnell, 621 S.W.2d 277, 284-85 (Mo.1981), that the facts enumerated gave rise to probable cause, however, police may stop a person when they entertain a reasonable suspicion that criminal activity may be afoot. Id., at 284.

“The reasonable suspicion that entitles an officer to stop an individual exists when the officer is able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant intrusion.” Id., at 285.

In Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), the court stated, “In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act.”

Appellant’s motion to suppress his statements because there were not facts enough to establish probable cause for his arrest is without merit and ruled against him.

Appellant alleges that his statements were not freely and voluntarily given; that he did not make a knowing and intelligent waiver of his rights to remain silent and to counsel. Appellant also alleges he had suffered severe emotional shock, was coerced, undue influence was used to obtain his statement, and he was denied contact with friends and loved ones and denied food and sleep.

This court must give due regard to the trial court to judge the credibility of a witness. State v. Dixon, 655 S.W.2d 547, 554 (Mo.App.1983). The admission of a confession is within the trial court’s discretion and will not be lightly disturbed. State v. Flowers, 592 S.W.2d 167, 170 (Mo. banc 1979).

As mentioned the trial judge was very thorough and complete in his decision regarding the defendant’s motion to suppress. Further, trial counsel for defendant presented an exhaustive argument urging suppression.

The defendant was arrested in the parking lot of a shopping center at Parvin and Brighton (in Kansas City, Clay County, Missouri). At that time defendant was advised he was wanted in regard to a homicide. When he was so advised he became upset, emotional and cried. At this time Kansas City Police Detective Saunders “advised him of his rights with a Miranda card.” From this point he was taken “downtown.” Saunders was in the car with him during this trip and did not notice the odor of alcohol being present on defendant.

At the request of the Prosecuting Attorney, Officer Saunders read the Miranda warning, that he had given defendant off of his card, into the record. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Officer Buckle, who made the initial stop of defendant in the parking lot, substantiated Saunders’ testimony that defendant did not appear intoxicated, that he was, in fact, crying and had stated he was enroute to the funeral home. Sergeant Mitchell of the Kansas City, Missouri, Police Department also corroborated this fact.

Officer Merl, of the Kansas City, Missouri, Police Department conducted the interrogation of Closterman at police headquarters and received “background” information such as where he lived, where he grew up, number of siblings, etc. Merl next advised Closterman that the medical examiner had ruled Colleen’s death a homicide. He provided Closterman with the “standard police department form that contains the Miranda warning.” Closterman read this out loud and at trial Officer Merl read it into the record.

Merl stated that Mr. Closterman refused to sign the form because he was “afraid that I would put words in his mouth.” However, he did make an oral statement. Merl testified Closterman did not ask for a lawyer, did not want to quit the questioning, and did not complain. He also testified that he did not detect the odor of alcohol on Closterman.

Following the oral statement Closterman was told that it would be typed up and his response was “that’s fine.” According to Merl both he and Closterman went to the typist. Merle dictated the story to her as Closterman had told him; Closterman was present and was advised to correct any mistakes or make additions as he chose. He was provided coffee and contacted a relative, Vicky Cousins, during this period. Following the preparation of the statement he read each page and signed the bottom of each page. Closterman denied abusing Colleen or hitting her in his first statement. Following this statement his wife and another woman appeared. He talked with the woman who accompanied his wife.

Subsequently, Detective Floyd Smith entered the interrogation room and inquired if Closterman had been given his rights per Miranda and was informed, “Yes, he has.” Smith then recited, from memory, the Miranda warning to Closterman. The police then told Closterman they had information that he had hit this “little girl” in the stomach. After a period of silence Closter-man stated “he had struck Colleen in the stomach the night before she went to the hospital.”

A second statement was then given by Closterman in which he stated that he had hit Colleen several times in the stomach with his fists and that he had hit her and slapped her on previous occasions.

The trial court found the statements “were given intelligently and voluntarily and knowingly and without the benefit of any undue coercion or force, threats, or promises.”

The state has met the burden imposed by State v. Haas, 610 S.W.2d 68 (Mo.App.1980), by establishing the statement was freely and voluntarily given without threat or promise.

Closterman was fully advised of his rights on at least three separate occasions. Miranda v. Arizona, supra.

It is hot for us to second guess the trial court on matters of credibility. The trial judge is in a unique position to observe and hear a witness and we must defer to the trial court’s decision regarding witness credibility unless it appears a manifest error has been committed. State v. Crowley, 571 S.W.2d 460, 465 (Mo.App.1978); State v. Riggs, 586 S.W.2d 447, 449 (Mo.App.1979).

Voluntariness is determined by evaluating all the circumstances under which a statement was made. State v. Craig, 642 S.W.2d 98, 100 (Mo. banc 1982). The trial court did this in a detailed oral finding made at the suppression hearing. The defendant alleged he was suffering emotional shock. Such a showing “creates a jury question but does not preclude admission of an inculpatory statement.” Id., at 101. Under all of the evidence the trial court did not err in admitting the statements.

Point II is ruled against defendant.

Finally, defendant alleges the action of the Arizona court denied him confrontation with witnesses against him.

The defendant had requested that his wife, Linda (Sherry) Closterman, be summoned as a witness under the “Uniform Law to Secure Attendance of Witnesses from Within and Without a State in Criminal Proceedings,” § 491.400, RSMo 1978, (herein referred to as “The Act”).

The trial court issued the summons directed to a court of record in Arizona, witness Linda Closterman’s home state, and deposited funds as required by Chapter 491, with the Arizona court. The Arizona court concluded that an “undue hardship to the witness to be compelled to attend and testify” would occur and denied Missouri’s request.

According to a footnote in State v. Sykes, 611 S.W.2d 278, 281 n. 1 (Mo.App.1980), the uniform act is not constitutionally mandated. The court there cited People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 488, 444 P.2d 110 (1968) and People v. McCartney, 38 N.Y.2d 618, 381 N.Y.S.2d 855, 345 N.E.2d 326 (1976) as supportive of this position.

Closterman alleges the trial court erred by not personally phoning the Arizona judge and requesting the issuance of the summons, by not ordering the assistant prosecuting attorney of Clay County, Missouri to endorse Mrs. Closterman as a State’s witness and not permitting hearsay testimony regarding what Mrs. Closterman would testify to if present.

Compulsory process usually runs only to those persons who can be located in its jurisdiction; constitutional provisions do not give a defendant the right to compel attendance of a witness from beyond its jurisdiction. People v. Cavanaugh, supra; Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967); State v. Pagels, 92 Mo. 300, 4 S.W. 931 (1887); State v. Butler, 67 Mo. 59 (1877); State v. Ivory, 609 S.W.2d 217 (Mo.App.1980).

Following a hearing on “The Act” the trial court shall enter an order requiring a witness to appear in a requesting state if it finds, (1) witness is material and necessary to criminal or grand jury proceeding, (2) no undue hardship bestowed on witness by attending proceeding in sister state, and (3) witness protected from arrest and civil process in demanding state and all states through which witness must pass. Ex parte Armes, 582 S.W.2d 434, 438 (Tex.Ct.Cr.App.1979).

Oregon has addressed this question in State v. Blount, 200 Or. 35, 264 P.2d 419, 428 (1953). There the court noted that in a proceeding under “The Act” the requisite of materiality could only be made on the basis of an affidavit or other competent evidence which sets forth to what the proposed witnesses would testify; a court was not justified in issuing a certificate for a witness if there was no evidence as to materiality.

In the instant case the defendant filed a bare motion requesting a certificate issue for Linda Closterman. The trial judge acted favorably on this motion.

Since the uniform act contemplates the testimony sought is material it should be shown on the certificate of the demanding state or else by separate proceedings on the certificate in the requesting state. Commonwealth v. Edgerly, 6 Mass.App. 241, 375 N.E.2d 1, 11-12 (1978).

That the Arizona court subsequently determined that undue hardship would be placed on Linda Closterman by ordering her to return to Missouri as a witness cannot be attributed to the Missouri trial judge or the prosecuting attorney.

The court in U.S. v. Bolden, 461 F.2d 998 (8th Cir.1972), observed “clearly the government cannot be required to be successful in its efforts to subpoena witnesses in every instance. All that is required is a good faith effort to secure service of process.” Certainly a good faith effort was made by the circuit court of Clay County to secure Linda Closterman’s attendance.

Finally, in State v. Ivory, supra, the court made the following observations:

Though obscure, defendant’s point may also be read as complaining that because defendant failed to comply with § 491.020 the court should have found some other means of procuring the attendance of the witnesses. The defendant claims that the failure to do so deprived defendant of his right to compulsory process under the Sixth Amendment to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. We cannot agree.

In the instant case the certificate was issued to Arizona and the Arizona court found an undue hardship would be placed on Linda Closterman by issuing the summons. The defendant would have the trial judge personally intervene. However, the court has no duty to enforce its process sua sponte. State v. Mixen, 426 S.W.2d 92, 94 (Mo.1968).

The trial judge relied upon the Arizona decision as a matter of comity. The fact that defendant was aggrieved by the Arizona decision should have been pursued in Arizona courts.

Point III is denied.

Judgment affirmed.

All concur.

      . The point contained eighteen issues.

      . All prosecutors are urged to follow this exam-pie.


author: FLANIGAN, Judge.

text:
    Ralph E. PARCEL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13435.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 14, 1985.
    Motion for Rehearing or Transfer Denied March 11, 1985.
    Application to Transfer Denied April 30, 1985.

      Michael R. Radosevich, Jefferson City, for movant-appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Mary Elise Burnett, Asst. Attys. Gen., Jefferson City, for respondent.
   FLANIGAN, Judge.

Movant Ralph E. Parcel appeals from a denial, after evidentiary hearing, of his Rule 27.26, V.A.M.R. motion to set aside a judgment and sentence for felony murder (§ 559.010 RSMo 1969). This court affirmed the conviction in State v. Parcel, 546 S.W.2d 571 (Mo.App.1977). The motion alleged that defendant’s trial counsel in the murder case, attorney Richard Franks, rendered him ineffective assistance of counsel in several respects. On this appeal movant asserts that counsel was ineffective and the trial court erred in ruling otherwise. Appellate review of the trial court’s order denying the motion is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j).

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 104 St.Ct. at 2068.

Movant’s first point is that attorney Franks inadequately represented movant during voir dire examination by failing to object to the prosecutor’s questions directed to veniremen Meade, Gibbs, Sharp, Williams, Womack, Powell, McCoy and Vermillion, and failing to object to the prosecutor’s motion to excuse those veniremen.

This court has examined the transcript of the voir dire examination of the named veniremen. Both the prosecutor and attorney Franks participated in that examination. Each of the veniremen was properly excused by the court. None of the prosecutor’s questions was objectionable. Attorney Franks may not be faulted for failure to make an invalid objection to those questions or to the prosecutor’s motion to excuse those veniremen. The trial court found that attorney Franks was not incompetent with respect to the manner in which he conducted voir dire examination. That finding is fully supported by the record and is not clearly erroneous. Movant’s first point has no merit.

Movant’s second point is that attorney Franks was ineffective in failing to object to inadmissible evidence offered by the state and admitted by the trial court.

The statement of facts portion of movant’s brief, which does not set forth the challenged evidence, refers this court to three pages of the murder trial transcript where it purportedly appears. This court has made a gratuitous examination of those pages. They contain statements attributed to state’s witness Teitsworth which are in essence consistent with and cumulative of testimony of Teitsworth himself given earlier in the trial. The trial court found that the evidence was admissible as a statement of a co-conspirator and that attorney Franks had no duty to object to it. That finding is supported by the record and is not clearly erroneous.

Movant’s brief also states: “[Attorney Franks] failed to assert that the search and seizure of items introduced into evidence resulted from an unconstitutional search by Trooper Behrns. The trial transcript is somewhat unclear on this point, but it appears as though movant was not a suspect on the day he was arrested and searched and, therefore, the items seized from his person were inadmissible at trial.”

At the motion hearing movant testified that Trooper Behrns arrested movant “but not on this charge.” The trial transcript, which movant says is “unclear,” tends to indicate that the search and seizure were incident to a lawful arrest and that a motion to suppress would have been unavailing. Moreover, during cross-examination of the trooper, attorney Franks developed evidence of a written report, inconsistent with the trooper’s testimony on direct examination, which tended to incriminate a third person. The failure to object to the evidence could well have been a matter of trial strategy. The trial court found that the evidence was admissible and that counsel had no duty to challenge same. That finding is not clearly erroneous. Movant’s second point has no merit.

Movant’s third point is that attorney Franks was ineffective in failing to object to a statement made by the prosecuting attorney during the course of his closing argument to the jury. The prosecutor said, “Even if you believe the defendant, which I don’t, and which I believe the evidence overwhelmingly shows was not what happened, he is guilty of first degree murder in connection with the burglary.” Movant argues that it was improper for the prosecutor to argue that he personally did not believe the defendant.

“The law is well settled that the prosecuting attorney may not express his private opinion or knowledge of a defendant’s guilt but where it is apparent that his opinion is based solely on the evidence in the case he may properly argue that, in his opinion, defendant is guilty.” State v. Groves, 295 S.W.2d 169, 173 (Mo.1956).

The trial court found that the prosecutor’s statement “does not show that the prosecutor was expressing his personal belief on anything other than what was covered in evidence and that his belief was based on the evidence.” The trial court also found “there was no error and trial counsel had no duty to raise the issue and even if it were error which he should have raised, his non-action was trial tactics_” Those findings are not clearly erroneous. Moreover, as stated in Fitzpatrick v. State, 578 S.W.2d 389, 341 (Mo.App.1979), “Even if it be assumed that the prosecutor’s argument exceeded permissible limits, mere failure of defense counsel to preserve the issue on appeal is not a basis to grant relief under Rule 27.26. An error or mistake in trial strategy or judgment must, to justify vacating judgment of conviction, have been of such character as to deprive movant substantially of his right to a fair trial. McConnell v. State, 530 S.W.2d 43 (Mo.App.1975). Such is not demonstrated to have been the effect in this case.” Mov-ant’s third point has no merit.

Movant’s fourth point is that attorney Franks inadequately investigated witness Raymond Hoover who testified as a character witness for the defense. Movant argues that Hoover “gave testimony harmful to the defense.” This court has reviewed the testimony of Hoover and its general tenor was favorable to the defense. Some portions of that testimony which may have been unfavorable had previously been elicited during the testimony of movant, who had testified earlier in his own defense. The trial court found that the decision to call Hoover was a matter of trial tactics and not a basis for a finding of ineffective assistance of counsel. That finding is not clearly erroneous. Movant’s fourth point has no merit.

Movant’s fifth point is that attorney Franks was ineffective in failing to advise movant of his “constitutional right against self-incrimination.” Prior to the murder trial of movant, movant testified at an evi-dentiary hearing held in connection with a motion for new trial filed by Earl Weeks, movant’s accomplice in the murder. Weeks had previously been tried and convicted. Before movant testified at the Weeks hearing, the trial judge and attorney Franks separately, and on the record of that proceeding, informed movant of his constitutional privilege against self-incrimination. On cross-examination at that hearing mov-ant, who had been advised by attorney Franks not to testify at all, frequently invoked his Fifth Amendment rights. In the instant proceeding the trial court found that movant “obviously at all times knew his rights under the Fifth Amendment.” The trial court also found that movant was willing to testify “irrespective of any Fifth Amendment considerations.” Those findings are supported by the record and are not clearly erroneous. Movant’s fifth point has no merit.

Movant’s sixth point is that attorney Franks did not provide him effective assistance of counsel in that, during the murder proceedings against movant, attorney Franks also represented Earl Weeks, “who had been involved in the same offense which created a conflict of interest, and movant was thereby prejudiced because attorney Franks employed a theory of defense which was contrary to what movant said had happened and was not exculpatory.”

Weeks and movant were jointly charged with the murder and a joint preliminary hearing was held. At that hearing attorney Lawrence Johnson represented Weeks and attorney Franks represented movant. After the two men were bound over to the circuit court and jointly charged in an information, movant’s motion for severance was granted and the cases were tried separately. The Weeks trial ended on April 5,1975, and movant’s trial began on July 28, 1975. At his trial Weeks was represented by attorney Johnson, as lead counsel, and attorney Franks served as local counsel. See State v. Weeks, 603 S.W.2d 657 (Mo.App.1980). At movant’s trial he was represented by attorney Franks and attorney Bruce Kirby.

In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court dealt with constitutional aspects of “multiple representation,” that is, a situation where two defendants, tried for the same offense, were represented by the same counsel. At 100 S.Ct. 1718, the court said:

“Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissi-bly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. Such a presumption would preclude multiple representation even in cases where ‘[a] common defense ... gives strength against a common attack’ ” ...

“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”

Since movant made no objection at the murder trial with regard to the conduct of attorney Franks in representing, with different co-counsel, Weeks and movant at their separate trials, it was incumbent upon movant to demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.

In Strickland v. Washington, supra, quoted near the outset of this opinion, the court enumerated certain “Sixth Amendment contexts” where “prejudice is presumed.” Those contexts included actual or constructive denial of the assistance of counsel altogether and various kinds of state interference with counsel’s assistance. The court then said, 104 S.Ct. at 2067:

“One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct. at 1716-1719, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, 100 S.Ct., at 1719, 1718 (footnote omitted).” (Emphasis added).

Weeks did not testify at the Parcel trial and Parcel did not testify at the Weeks trial itself. Against the express advice of attorney Franks, Parcel did testify, briefly, at the evidentiary hearing. There, under questioning by Weeks’ attorney Johnson, Parcel testified that “at no time during that weekend [the weekend of the murder] were Weeks, Teitsworth, and I, the three of us, together.” Under cross-examination by the prosecuting attorney, Parcel repeatedly invoked the Fifth Amendment but did say that he was not with Weeks “that weekend” and did not know where Weeks was.

At his own trial, Parcel testified in his own behalf. Under cross-examination by the prosecutor he testified that he had lied when he said “Weeks wasn’t there” and the reason was that he was “under great duress and fright” caused by Weeks.

At the outset of Parcel’s murder trial the court stated, “The defense has this morning announced that it will not rely on a defense of alibi.” At the hearing on the instant motion Parcel testified, “I told Franks that I in fact was not present at the time of the [felony murder].” The trial court was not required to believe that testimony. Indeed the trial court found that Parcel “never testified as to what he told attorney Franks the facts were.... Parcel never testified [at the motion hearing] as to what his ‘version’ was.” The essence of Parcel’s trial testimony was that he was a willing accomplice to a burglary but had no intention of participating in a robbery or a murder.

The trial court’s findings included the following: “The [state’s verdict-directing instruction] required belief that Parcel caused the death of [the victim] by striking her, and he did so in robbing her or in committing a burglary of her home, and acted either alone or knowingly and with ‘common purpose’ together with Weeks and Teitsworth in the conduct referred to_ [T]he transcript shows that [attorney] Franks wanted the jury to believe that Parcel was a thief but not a murderer; it was reasonably foreseeable that a jury would have been unwilling to convict mov-ant of murder; and Franks’ theory of defense was the only reasonable alternative and was one of ‘jury nullification’.... In view of the state’s strong case against Parcel, there was very little choice but to have Parcel take the stand and tell the jury that he did not intend any killing and was just a burglar. Under the verdict-director, there was at least room for argument that Parcel was not in the ‘common purpose’ .... This perhaps is no reason under the law to acquit him of murder but it was about all the defense had to argue.... The court believes and concludes that mov-ant has not sustained his burden of proving by preponderance of the evidence that Franks’ pursuing the burglary theory (or any of his actionfs] or non-action[s]) had any direct connection with Parcel’s being found guilty or caused Parcel not to have a fair trial. This is because he would have, in any event, been found guilty regardless of how competent the attorney or what kind of theory might have been adopted.”

The foregoing findings are not clearly erroneous. It cannot be properly said that attorney Franks “employed a theory of defense which was contrary to what movant said had happened,” because the record does not show “what movant said had happened.” Further, there is nothing in the record to show that movant had any version which was in fact “exculpatory.” Movant has failed to show “that an actual conflict of interest adversely affected his lawyer’s performance.” Strickland v. Washington, supra. The trial court found that there was no credible evidence to support movant’s claim that he was denied a fair trial because attorney Franks had an impermissible conflict of interest. That finding is not clearly erroneous. Movant’s sixth point has no merit.

The judgment is affirmed.

TITUS, P.J., and MAUS, J., concur.

GREENE, J., recused.


author: GREENE, Judge.

text:
    Mabel ASHER and Vernie Asher, Plaintiffs-Respondents, v. Bertrand MORRIS and Roberta Morris, his wife, Defendants-Appellants.
    No. 13740.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 19, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 7, 1985.

      Robert M. Ramshur, Robert M. Ramshur & Assoc., P.C., Piedmont, for plaintiffs-respondents.
    Randy P. Schuller, Hackworth & Schul-ler, Piedmont, for defendants-appellants.
   GREENE, Judge.

In 1983, plaintiffs, Mabel and Yernie Asher, brought a quiet title action against defendants, Bertrand and Roberta Morris, in which they claimed title by reason of adverse possession to a triangular shaped piece of real estate containing roughly .05 acres. By counterclaim, defendants asserted they were owners of the disputed tract, through record title, as well as by adverse possession, and asked that title be quieted in their favor. They also sought an injunction to prevent plaintiffs from dumping waste water and trash on their land.

After hearing evidence, the trial court entered judgment in favor of plaintiffs on the adverse possession issue, quieted title in their favor, and enjoined them from “disposing of waste water upon the defendants’ real estate.”

Defendants appealed, claiming that the trial court erred in finding that plaintiffs had acquired title to the disputed tract by adverse possession because there was insufficient evidence 1) to tie any acts of adverse possession to the specific tract in question, 2) to determine the legal description of the tract which plaintiffs claimed by adverse possession, and 3) to show acts of adverse possession for a continuous ten year period.

In court-tried cases such as this, our duty is to sustain the trial court’s judgment, if there is substantial evidence to support it, if it is not against the weight of the evidence, and if it is not based on any erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); City of South Greenfield v. Cagle, 591 S.W.2d 156, 159 (Mo.App.1979).

In the trial court, no findings of fact were requested or made. In such cases, all fact issues are deemed to be found in accordance with the result reached, with the appellate court accepting as true all evidence, and inferences therefrom, favorable to the prevailing party, and disregarding any contradictory testimony. Porter v. Posey, 592 S.W.2d 844, 848 (Mo.App.1979). Applying these guidelines, there was sufficient . evidence, as set out below, for the trial court to find plaintiffs acquired title to the disputed tract by adverse possession.

On August 11, 1964, Mabel and Vernie Asher, sisters, purchased real estate from W.E. Watts and Helen Watts, husband and wife. The Asher sisters thought, and Mrs. Watts thought, that the transaction included the disputed tract, which lies between the Asher property and real estate to their north purchased in 1974 by defendants from their predecessors in title, Mr. and Mrs. Whitehead, who had previously purchased it from Mrs. Watts.

The triangular tract runs from A) a point on the east right-of-way line of Highway 49 along the north side of the tract in a generally eastern direction for 101.6 feet, then B) in a generally southern direction for 40 feet, then C) back westerly 113.6 feet to the point of beginning. These measurements were obtained from surveys prepared for plaintiffs and defendants by surveyor Dennis Barfield. A map showing an outline of the tract and showing features that were in evidence is shown below.

Mrs. Watts helped the Asher sisters clear the north side of the property they had purchased from her, and in late 1964, or early 1965, helped them build a fence along what the three of them thought was the north side of the Asher property. Trees and shrubs, as well as flowers, were then planted along the fence line. Fruit trees, grapevines and a willow tree were planted by the Ashers in the area immediately south of the north fence line. The fence was removed some years later, but the Ashers continued to treat the disputed tract as their own. They tended to the trees, shrubs, and flowers they had planted along the fence line, stacked concrete blocks and erected a partial concrete block wall along the fence line, grew grapes, apples and peaches on the disputed tract, and mowed it, up until the time the case was tried in January of 1984.

In surveying the disputed tract, Barfield ran the northern boundary along the tree and shrub line that had been planted by the Ashers next to the fence. The line extended east until it joined an extension of the east property line of the Ashers. Tom Brawley, who testified he had worked on the Asher property for at least 15 years prior to trial, recalled seeing either the fence, or the trees, shrubs, and bushes along the fence line, for at least ten years prior to trial. He also stated that the Ash-er sisters mowed the disputed strip to keep the grass and weeds down.

Mary Whitehead, the immediate predecessor in title to the defendants, stated that during her ownership of the property, which was from 1968 to 1974, she regarded the fence between her property and that of the Ashers as the boundary line. She cleaned out the fence herself, but only claimed the real estate north of it. She was also aware that the trees, shrubs and bushes were planted by the Ashers along the fence line, and identified photographs which showed these along the fence line in question.

Witness Olin Talley testified he had seen the fence in question, but did not remember when it had been removed. He knew where the trees and shrubs along the old fence line were planted. Opal Ruble, who had known the Ashers since 1964 and had visited in their home, remembered the fence and the concrete wall on the fence line, and also knew the Ashers treated the tree and shrub line as their property line.

A person who claims title to real property by adverse possession must prove that their possession has been actual, open and notorious, exclusive, hostile and continuous for a period of at least 10 years. Schaumburg v. Heafey, 650 S.W.2d 697, 698 (Mo.App.1983). Here, the evidence shows that the disputed tract was a small plot of cleared land over which the Asher sisters had exercised dominion and control, under a claim of right, since 1964. They considered the tract a part of their property, and tended it accordingly. Their testimony, the testimony of their witnesses, and the evidentiary photographs provide conclusive and substantial evidence that the Ash-ers have had actual, open and notorious, exclusive, hostile and continuous possession of the property in question for a period of almost 20 years.

Defendants also claim that adverse possession was not established in this case because there was insufficient evidence to establish the north boundary line of the disputed triangular tract. The evidence was conclusive that a fence was established along such line in 1964 or 1965, and, although later removed, the old fence line was clearly established by trees, shrubs and bushes that had been planted along the fence. The surveyor used the tree and shrub line to establish the north boundary. The fact that the land claimed by the Ash-ers by adverse possession is not physically enclosed by a fence did not render the boundary line incapable of location and description. Ross v. McNeal, 618 S.W.2d 224, 228 (Mo.App.1981). The contention has no merit.

There was substantial evidence to support the trial court’s judgment. The judgment is not against the weight of the evidence, and was not based on any erroneous declaration or application of law.

Judgment affirmed.

CROW, P.J., TITUS and FLANIGAN, JJ., concur.

      . Mr. Watts did not testify at trial.


text:
    John W. CHAMBERLAIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13714.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 19, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 7, 1985.
    Application to Transfer Denied April 30, 1985.
    Blair Buckley, Jr., Public Defender, Ca-ruthersville, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Movant, John W. Chamberlain, was jury-convicted of first degree sexual assault (§ 566.040) on his 15-year-old daughter, Faye, and, in accordance with the jury verdict, was sentenced to seven years’ imprisonment. The conviction was affirmed on appeal. State v. Chamberlain, 648 S.W.2d 288 (Mo.App.1983).

Evidence introduced at trial in support of the verdict was that while Chamberlain and Faye were en route to the hospital to check on a younger child who was ill, Chamberlain stopped the pickup truck, forced Faye to disrobe, and had sexual intercourse with her. Faye reported the assault on a child abuse hot line. She testified that her father had been having sexual intercourse with her since she was thirteen, but that she had not reported it previously because her father had threatened to hurt her, or kill her, if she did. In his testimony, Chamberlain admitted that Faye accompanied him on the trip to the hospital, but denied the sexual intercourse.

After affirmance of his conviction, Chamberlain filed a Rule 27.26 motion to vacate his sentence and set aside his conviction. Grounds alleged in the motion were:

1) His trial counsel was ineffective in that he did not interview and present evidence from several witnesses who would have contradicted Faye’s testimony;

2) His trial attorney “colluded with the prosecuting attorney as well as the judge;” and

3) His daughter, Faye, his wife, and two other women alleged to be his wife’s lesbian lovers conspired to file the sexual assault charge because the daughter did not like him and the mother wanted to be free to pursue her deviant sexual behavior.

An evidentiary hearing was held, after which the motion court filed findings of fact, conclusions of law, and a judgment denying relief. In its findings and conclusions on the three issues raised by Chamberlain in his motion, the motion court found:

1)“Movant has not carried his burden of proof on his claim of ineffectiveness of counsel. The Court finds that movant’s attorney did exercise the customary skill and diligence that a reasonably competent attorney would exercise under the circumstances. There was no prejudice to movant arising from any acts or omissions on the part of his attorney;”

2) “There is no evidence of collusion between movant’s attorney, the prosecuting attorney, and the judge;” and

3) “There is no credible evidence proving a conspiracy to prosecute or convict mov-ant.”

On appeal, Chamberlain contests only those findings and conclusions concerning effectiveness of counsel. Our review is limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous; i.e., that we are firmly convinced that the motion court made a mistake. Howard v. State, 627 S.W.2d 643, 644 (Mo.App.1981); Rule 27.26(j).

In his sole point relied on here, Chamberlain argues the motion court erred in finding his trial attorney was competent because the attorney did not interview nor call as witnesses persons who could have discredited the testimony of the complaining witness by “showing she was at a different place from the place where she testified she was assaulted at the time of the alleged assault.” A synopsis of the testimony of movant’s witnesses given at the 27.26 hearing, and the rebuttal testimony of Chamberlain’s trial attorney, Terry McVey, is as follows:

(A) JOHN CHAMBERLAIN, JR., mov-ant’s son, testified that he was at the family home the evening of the alleged assault when a younger child became ill. John’s mother sent him “downtown” to retrieve Chamberlain and to have him call an ambulance, which he did. When Chamberlain and the ambulance arrived at the home, Mrs. Chamberlain accompanied her sick daughter to the hospital in the ambulance. Chamberlain left the house to borrow a pickup and returned. He instructed John to tell Faye to stay there and tend to the younger Chamberlain children when she came home. John said Faye came in 30-40 minutes later, and refused to stay. He said McVey never asked him what he knew about the alleged assault, nor was he used as a witness at trial.

REBUTTAL:

McVey did interview John Jr. but was not told that Faye came home after Chamberlain had left for the hospital and, therefore, did not have any reason to call John Jr. as a witness at trial. Should John Jr. have testified in this manner, his testimony would have contradicted his father’s because Chamberlain testified that Faye did accompany him to the hospital.

(B) REBECCA WARD, movant’s niece, said that Faye ate dinner with her at her mother’s house the night of the alleged assault. At a later date, Becky was at Judy Cook’s home when Faye arrived crying. She told Becky and other persons at the house that Chamberlain had hit her, and she wanted “to get him back.” Judy suggested that Faye call the child abuse hot line and tell them that her father had molested her. Becky “thinks” she told McVey about this, and did tell him that on several occasions, Faye had told her her father was molesting her.

REBUTTAL:

McVey talked to Becky twice and had subpoenaed her, but decided not to call her as a witness because she would be open, on cross-examination, to testifying that Faye had complained to her on several occasions about her father sexually assaulting her. Becky never told him that Faye made the hot line call to “get even” with her father, nor did she tell him that other witnesses had heard Faye say that she wanted to find a way to get back at her father.

(C) RICHARD CHAMBERLAIN, mov-ant’s brother, testified he was present when Faye told several persons gathered at Judy Cook’s residence that she wanted to get her dad out of the way so that she could do as she pleased. Richard said that Judy told Faye to call the hot line and to say that her father was sexually abusing her. Faye later told Richard that she had lied when she said her father had sexually abused her. Richard could not be located by McVey to be interviewed prior to the trial, and would not reveal his whereabouts so that he could be subpoenaed as a witness. On cross-examination, Richard admitted three prior felony convictions and stated he was in the state of Texas at time of trial.

REBUTTAL:

McVey made several attempts to locate Richard, but was unsuccessful. He did not seek a continuance to try to locate Richard because he was afraid that if he did so, the state would amend its information to charge movant as a persistent offender, since he had been convicted of two prior felonies, thus raising a possibility that Chamberlain would receive a 15-year sentence, if convicted, rather than a maximum of seven, which he did receive.

Chamberlain testified in his own behalf and recanted his trial testimony that Faye had ridden in the truck with him on the way to the hospital. In explanation as to why he now alleged that she was not with him, Chamberlain said, “I had my times mixed up — going to Kennett, I’ve been there so many times.”

McVey testified he had visited Chamberlain in jail on 12-15 occasions for 45 minutes to an hour each time, and that he had spent 73 hours working on the case.

The motion court was under no obligation to believe movant and his witnesses, and evidently did not do so. It was in its discretion to determine what evidence was credible and what evidence was not to be believed. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). The motion court, as reflected by its findings and conclusions, chose to believe McVey and had a right to do so. A full review of the record convinces us that the findings, conclusions, and judgment of the trial court are not clearly erroneous.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.

      . Statutory references are to RSMo 1978. Section 566.040.1 provides that "[a] person commits the crime of sexual assault in the first degree if he has sexual intercourse with another person to whom he is not married and who is incapacitated or who is fourteen or fifteen years old.”

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.


author: PER CURIAM.

text:
    Alfonso C. EVANS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35363.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from denial after evidentiary hearing of a Rule 27.26 motion to vacate conviction of first degree murder, Section 565.003, RSMo 1978, and sentence to life imprisonment. See 639 S.W.2d 820.

Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert A. HOBBS, Defendant-Appellant.
    No. 13784.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 20, 1985.
    Motion for Rehearing or Transfer to Supreme Court Denied March 8, 1985.
    William L. Webster, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

      Mark V. Clark, Columbia, for defendant-appellant.
   PREWITT, Chief Judge.

Defendant was convicted of selling a controlled substance, marijuana, and sentenced to seven years’ imprisonment. On appeal he contends that the trial court erred in allowing a police officer to testify concerning discussions with defendant about future marijuana transactions.

The state presented evidence that defendant arranged for an “undercover” officer to purchase marijuana from another. He brought the seller to the apartment the officer was operating from. When the transaction was completed defendant left with the seller, intending to return. When he returned in about ten minutes, defendant and the officer discussed defendant’s payment for arranging the transaction. The officer said defendant agreed to accept “money as opposed to taking some of the marijuana out of the pound.” The officer testified that they then discussed his obtaining seedless marijuana and defendant “told me that he was attempting to locate some. And, I had let him know that I would pay him for finding, or setting up the transaction with me.”

Of course, as defendant contends, reference to other crimes unrelated to the case on trial violates a defendant’s right to be tried for the offense with which he is charged, unless that evidence has some legitimate tendency to establish defendant’s guilt of the crime charged. State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983); State v. Brown, 670 S.W.2d 140, 141 (Mo.App.1984). The question then is whether the evidence of the conversation between defendant and the officer had a legitimate tendency to establish defendant’s guilt of the crime charged.

This district denied a similar contention in State v. Meister, 630 S.W.2d 605 (Mo.App.1982). It held that discussion of past and proposed sales of “speed” and marijuana contemporaneously with the sale of marijuana that the charge was based on, was admissible to prove intent on the part of the defendant to sell controlled substances and demonstrated that his motive was profit. The conversation here was sufficiently related to the transaction charged so that the reasoning in Meister applies. See also State v. Huston, 660 S.W.2d 718 (Mo.App.1983).

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John REESE, Defendant-Appellant.
    No. 13578.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 20, 1985.
    Motion for Rehearing and Transfer to Supreme Court Denied March 11, 1985.
    Application to Transfer Denied April 30, 1985.

      John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William H. Wendt, Scott Tinsley, Springfield, for defendant-appellant.
   MAUS, Judge.

The defendant was convicted of the first degree felony murder of his estranged wife on November 14, 1982. § 565.003, RSMo 1978 (now repealed). In accordance with the verdict, he was sentenced to life imprisonment.

The essential part of the amended information under which the defendant was convicted alleged as follows: “[T]he Defendant, John Reese, in violation of Section 565.003, committed the felony of First Degree Murder, punishable upon conviction under Section 565.008.2, RSMo., in that the Defendant caused the death of Teresa A. Reese by Shooting her, and that the Defendant did so in committing a Burglary at the Teresa A. Reese trailer house, _”

By his sole point on appeal, the defendant attacks the sufficiency of that amended information. That point charges the amended information “failed to allege any of the elements of the crime of burglary out of which the homicide allegedly arose, and was therefore fatally defective in failing to: (1) allege essential elements of the crime charged; (2) apprise the court and defendant of the facts constituting the offense for which defendant was charged; and (3) protect defendant’s constitutional guarantee against double jeopardy.”

The Sixth Amendment mandates that an accused “shall enjoy the right ... to be informed of the nature and cause of the accusation....” The same mandate is found in § 18(a) of Article I of the Constitution of Missouri, 1945. Rule 23.01(b)(2) provides the indictment or information shall “[sjtate plainly, concisely, and definitely the essential facts constituting the offense charged.” Measured by these standards, “[t]he test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.” State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980). The purpose of a conforming indictment or information “is two fold: to inform the accused of charges against him so that he may prepare an adequate defense; and to preclude retrial on the same charges should a jury acquit him.” State v. Holland, 653 S.W.2d 670, 674 (Mo. banc 1983), cert. denied, — U.S. -, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983).

In support of his attack upon the sufficiency of the amended information, the defendant relies upon pattern charge MACH-CR 16.06(b) and State v. Sykes, 436 S.W.2d 32 (Mo.1969). MACH-CR 16.06(b), Murder: First Degree in Burglary, does call for an indictment or an information to set forth the elements of burglary. The amended information in this case obviously does not conform to that standard. The record contains no explanation why MACH-CR 16.-06(b) was not followed.

The pattern charges of MACH-CR are a source of valuable guidance. The approval of a charge does not foreclose “any legal, constitutional, procedural, pleading, evidentiary, instructional or other issue which may arise in cases pleaded, tried or appealable under any laws covered by the MACH-CR forms.” MACH-CR 1.00.2 p. 1-4. Nevertheless, an indictment or information which is substantially consistent with the form of a pattern charge of MACH-CR approved by the Supreme Court shall be deemed to comply with the requirements of Rule 23.01(b). Rule 23.01(e).

However, “the 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 p. 1-3. An indictment or information that does not follow an appropriate MACH-CR charge can nonetheless meet the standard set by the constitutions and rule. Error is not established nor presumed because the amended information did not follow MACH-CR 16.06(b). State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981).

In State v. Sykes, supra, the defendant was convicted of first degree felony murder committed in the perpetration of a robbery. The information in general terms charged that the defendant did unlawfully, willfully, premeditatedly, feloniously and with malice aforethought, while committing robbery, kill the decedent. Under the statute then in force, § 559.010, RSMo 1959 (now repealed), it was established that under an information charging a premeditated homicide in common form, with no reference to any felony, the guilt of the defendant could be submitted as a first degree felony murder based upon one of the felonies enumerated in that statute. State v. Stancliff, 467 S.W.2d 26 (Mo.1971). Under that doctrine, the information in State v. Sykes, supra, was found sufficient to sustain the conviction. However, it was observed the felony of robbery was inadequately pleaded. In commenting upon that deficiency, the court quoted from a New Jersey case. “No reason is perceived why, if it be necessary to show a rape as one of the constituents of the offense of murder in the first degree, such crime should not be pleaded with the same formality as is requisite when it forms the sole basis of a count in an indictment.” Titus v. State, 49 N.J.L. 36, 7 A. 621, 622 (1886). It is upon this proposition the defendant principally relies.

That proposition is not generally accepted. Its status has been recognized in a legal encyclopedia.

In such case, although there is some authority to the effect that the constituent felony must be averred with the same formality which would be requisite were it the sole basis of a count in an indictment, [citing in a footnote Titus v. State, supra] as a general rule it is sufficient to allege that the killing was committed in the perpetration of or attempt to perpetrate a designated felony or felonies, or in the escape or withdrawal therefrom, without setting out in detail the facts constituting the alleged felony or felonies.

40 C.J.S. Homicide § 148 (1974). Also see 40 Am.Jur.2d Homicide § 218 (1968).

In one sense, the allegation of its elements is a definition of the offense charged. In many instances, a full and precise definition of the offense could require a detailed allegation of the specific meaning ascribed to each statutory definitional term that can bear one or more alternative meanings. Ready examples are “forcible compulsion” (see MACH-CR 20.-02) and “deviate sexual intercourse” (see MACH-CR 20.10). The same requirement would extend to such terms as “consent.” See MACH-CR 19.20; State v. Mayhue, 653 S.W.2d 227 (Mo.App.1983). But, there must be limits upon the details of definition required in an indictment or information. An indictment or an information is to be differentiated from an instruction. If a defendant has serious question concerning the details of the state’s case, he has the remedy of a bill of particulars. Rule 23.04; State v. Davis, 624 S.W.2d 72 (Mo.App.1981).

The last cited quotation is an expression of such a limitation upon definition. In a specific application of that limitation it has been declared:

And while it is true, as defendants argue, that the particular elements of the burglary were not set forth, the indictment did, nevertheless, cite the section of the Criminal Code which describes and provides punishment for the crime of burglary. The particular elements which constituted the burglary in this case were unnecessary in the indictment since the defendants were not being prosecuted for burglary. The only offense charged was murder. The allusion to the burglary was necessary to allege that the murder was one committed during the course of a felony.

People v. Jeffrey, 94 Ill.App.3d 455, 49 Ill.Dec. 860, 418 N.E.2d 880, 888 (1981). A corollary of that limitation has been expressed in regard to a charge of a conspiracy. “[I]n an indictment or information for conspiracy to commit an offense, conspiracy is the gist of the offense and it is not essential to allege all elements of the substantive offense which is the object of the conspiracy with the same detail that they would be alleged in an indictment or information for that substantive offense.” State v. Fetty, 654 S.W.2d 150, 154 (Mo.App.1983).

Such a limitation upon the allegations necessary to plead a subject or inchoate offense has been consistently followed in this state. It has been applied in considering the sufficiency of a charge of attempt, State v. Johnson, 640 S.W.2d 513 (Mo.App.1982); of conspiracy, State v. Fetty, supra; of assault, State v. Chandler, 635 S.W.2d 338 (Mo. banc 1982); and burglary, State v. Faber, 499 S.W.2d 790 (Mo.1973). Upon observing that the information tracked the statute and without expressed consideration of the point at issue, a charge that a felony murder was committed during the perpetration of a robbery has been held sufficient. Blackmon v. State, 639 S.W.2d 127 (Mo.App.1982). Also see State v. O’Toole, 619 S.W.2d 804 (Mo.App.1981). Such a limitation has been generally followed in determining the sufficiency of a charge of felony murder in other jurisdictions. People v. Jeffrey, supra; Glowacki v. Sacks, 176 N.E.2d 844 (Ohio App.1960); Taylor v. State, 133 Tex.Crim.App. 561, 106 S.W.2d 681 (1937); Smith v. State, 540 S.W.2d 693 (Tex.Crim.App.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977); State v. Bird, 31 Wash.2d 777, 198 P.2d 978 (banc 1948), cert. denied, 336 U.S. 954, 69 S.Ct. 876, 93 L.Ed. 1109 (1949).

The limitation has been encompassed by inference in the approval of felony murder convictions under a charge of capital murder. State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983); State v. Holland, supra. A general allegation, similar to the one in question, is found in the current approved charge for felony murder, MACH-CR 13.-06. The same is true of MACH-CR 18.02, Attempts; MACH-CR 18.04, Conspiracy to Commit an Offense; MACH-CR 23.50, Burglary in the First Degree; and MACH-CR 23.52, Robbery in the Second Degree.

The gist of the offense was murder. The amended information gave the defendant fair notice of the crime of which he was convicted. State v. Goddard, supra. The judgment is affirmed.

PREWITT, C.J., and CROW, J., concur.

HOGAN, P.J., concurs in the result.