STATE of Missouri, Respondent, v. William Michael MOORE, Appellant, 642 S.W.2d 917

MANFORD, Presiding Judge. This is a direct appeal from judgment entered upon jury conviction for conspiracy to commit robbery first degree in violation of § 564.016, RSMo 1978. Appellant was sentenced in accordance with § 558.016, RSMo 1978. The judgment is affirmed. Appellant presents no less than nine alleged points charging the trial court erred. In

summary-, these charge error as follows: (1) in failure to dismiss the charges for failure to bring appellant to trial within 180 days, (2) the indictments and information were vague and uncertain as to time of the alleged offenses, and the trial court erred in charging appellant, (3) failure to direct a verdict in appellant’s favor because the evidence was insufficient, (4) the trial court erred in the denial of appellant’s pre-trial motions, (5) the trial court erred in charging appellant by defective indictment as a dangerous offender because said indictment was vague and uncertain, (6) the trial court erred in its instructions to the jury upon the issue of punishment, (7) the trial court erred in its refusal to permit appellant to cross-examine two witnesses upon two specific matters, (8) the trial court erred in its refusal to grant a mistrial upon the failure of the prosecutor to include all necessary elements of the charged offense in his opening statement, and (9) the trial court erred in its failure to grant a mistrial upon improper comment by a witness.

Since appellant challenges the sufficiency of the evidence, a recital of all pertinent facts is necessary. The evidence reveals appellant was charged by information on January 29, 1980. On March 6, 1980, a Grand Jury handed down a true bill. The appellant was jailed on January 29, 1980. On January 25, 1980, Peter Kahre and Leonard Johnson met in Corder, Missouri. They decided to travel to Warrensburg, Missouri, allegedly to visit with a military recruiter. Kahre drove the vehicle. En route, Johnson suggested a robbery of the Bucks Thriftway Store in Higginsville, Missouri. Johnson directed Kahre where to drive.

They went to a particular street in Higginsville. Johnson left the vehicle and returned a few minutes later. Johnson testified he returned with a handgun which he had retrieved from beneath his grandmother’s porch. Johnson then directed Kahre to park in the parking lot of a local funeral home about a block from the Thriftway store. Johnson again left the vehicle, this time taking with him a pair of gloves and a stocking cap belonging to Kahre. Johnson walked to the parking lot of the Thriftway store.

At this time (approximately 9:30 a.m.), an employee of the store was returning from the bank carrying over $4,000.00 in various bills and coins contained in bank money bags. Johnson robbed the employee and returned to Kahre’s vehicle with the gun and the money contained in a pillow case. Johnson directed Kahre to return to the location and street where he (Johnson) had first alighted from Kahre’s vehicle. Kahre testified he observed Johnson go behind a mobile home trailer and return moment’s later without the gun, money, or pillow case.

Johnson testified he took the gun and money to appellant who was inside the mobile home trailer of one Betty Woods. The Woods’ trailer and that of Johnson’s grandparents were in close proximity to each other. Johnson and Kahre then departed for Warrensburg where they were arrested as they approached the city limits. Johnson was questioned by a Missouri Highway patrolman and a special investigator of the Lafayette County Sheriff’s office and denied to both any knowledge of the offense. Johnson was then taken to Kansas City and freely took a polygraph examination.

He was returned to Lafayette County and questioned by the Sheriff. He continued to deny any knowledge of the offense. Johnson was then returned to Kansas City for a second polygraph examination. Upon his return to Lafayette County, Johnson signed a statement admitting the offense. In his statement, Johnson implicated appellant stating appellant had given him (Johnson) instructions for the commission of the offense. At trial, Johnson testified that appellant had threatened him with a gun on two prior occasions.

Johnson further testified that sometime just prior to January 25, 1980, appellant and he were riding around, during which time appellant pointed a gun at him and told him to rob Bucks Thriftway Store. Johnson testified he committed the offense out of fear of appellant and in compliance with appellant’s instructions. The defense was alibi. Appellant did not testify. A Kansas City, Missouri attorney and his receptionist testified. The attorney verified he was handling a personal injury case for appellant, but that he did not personally see appellant on January 25, 1980.

The receptionist testified appellant was in the law office on January 26,1980, at about 9:00 a.m. Cross-examination developed that the receptionist had seen appellant both before and after the date of the offense. Another witness testified that appellant “gassed up” his vehicle at a local service station where this witness was employed. This witness recalled the date of January 25,1980, but stated that, as best he could recall, appellant purchased gas sometime before noon. Betty Woods stated she had dated appellant, but denied appellant ever “lived” in her trailer.

She testified her trailer was right next door to the Britt’s trailer. (The Britts are appellant’s grandparents). She further testified there were only two keys to her trailer and those were in the possession of her mother and herself. She also stated she leaves for work at about 5:30 a.m. and her mother comes to her trailer to get “my daughter off to school every morning as soon as I leave ...” She testified appellant never had a key to her trailer, could not have entered it alone and that she was not present when Johnson brought the gun and pillow case of money to appellant, as Johnson testified.

Sterling Woods, another witness, testified that he knew appellant, recalled the date of the offense, and picked up appellant at about 8:10 or 8:20 a.m. on January 25,1980, at the Britt mobile home. This witness stated he drove with appellant to the local service station, purchased gasoline, and drove appellant to the attorney’s office in Kansas City. This witness further stated he and appellant arrived at the attorney’s office after 9:00 a.m. and left some five to ten minutes later.

According to this witness, after they left the attorney’s office, they rode around in Kansas City, obtained a haircut, got something to eat, visited appellant’s mother, and returned to Higginsville at about midnight. On cross-examination, this witness admitted he really did not know if the events to which he testified occurred on January 25, 1980. The grandparents of appellant testified appellant lived with them. Mrs. Britt testified she leaves for work each workday about 6:00 a.m. She testified she and her husband freely allowed authorities to search their mobile home and the surrounding area.

She disclaimed any knowledge about the pillow case or gun. Mr. Britt testified he leaves for work at about 9:45 a.m. each workday. He also confirmed that appellant lived with him and his wife. He stated he recalled the date of the offense. He disclaimed ever seeing Johnson and knew nothing about the gun or pillow case with the money. He stated appellant left the mobile home around 8:00 or 8:30 a.m. the morning of January 25, 1980. The final witness for the defense was Jay Frakes. Frakes met appellant in the Lafayette County Jail.

This witness was serving time when appellant was arrested and identified Johnson as a result of seeing him in the County Jail and the fact he and Johnson had attended high school together. This witness stated that Johnson discussed the case while they were in jail and told him he had gotten scared and had “[ljied on Michael Moore in them statements.” During cross-examination, Johnson admitted writing letters to the trial judge which stated he had lied about implicating appellant.

On re-direct, Johnson testified that while in jail, appellant came to his cell and told him to write the judge, telling the judge he had lied. Johnson testified he wrote the letters because he feared appellant. There was also introduced another letter written by Johnson to his attorney telling the attorney that if he (Johnson) did not write to the judge and advise the judge he lied about appellant, that appellant was going to pay his friends in jail $50.00 “to jump on me”.

There was yet another letter written to the Sheriff by Johnson advising the Sheriff that appellant had threatened him and that is why he wrote the judge the letters. Johnson testified the letters to the judge were not true regarding his statements to the judge that he had originally lied about appellant. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed after-trial motions.

Under point (1), appellant contends the trial court erred in failing to dismiss the charges against him because he was not tried within 180 days of his arraignment, as required by § 545.780.2, RSMo 1978. Appellant sets forth pertinent calendar dates to support his argument. This information is as follows: Date of offense — 1-25-80; Complaint filed January 29, 1980, and arraignment was conducted March 6, 1980. The first trial setting was for May 6, 1980. The second trial date was for January 6, 1981, and the third and final trial date (actual date of trial) was March 2, 1981.

Following the dates above, it appears from the date of appellant’s arraignment to the first trial setting that there was a lapse time of 61 days. From the date of arraignment to the second trial setting, there was a lapse time of 306 days. From the date of arraignment to the final trial setting, there was a lapse time of 361 days. On the surface, it appears appellant’s point is well taken under the rule of State v. Richmond, 611 S.W.2d 351 (Mo.App.1980). Richmond interprets strictly § 545.780.2 and rules that a failure to comply dictates dismissal.

It must be noted, however, that the court in Richmond made some basic observations regarding this statute. First, the statute is not to be construed as a substitute for a speedy trial as guaranteed by the 6th Amendment to the Constitution of the United States. Second, speedy trials are for the benefit of both the accused and the public. In addition, an accused bears the burden of proving a speedy trial delay was “occasioned” by the state, but an accused does not waive the right to a speedy trial upon failure to demand a trial.

In Richmond, this court simply concluded that under the facts and circumstances therein the accused had met his burden of proof that the state had “occasioned” the trial delay. From this, it is clear that each case is to be decided upon its own individual facts and circumstances. A more recent decision on the issue by this court occurred in State v. Reed, 640 S.W.2d 188 (Mo.App.1982). This court in Reed acknowledged the ruling in Richmond as well as State v. Franco, 625 S.W.2d 596 (Mo.1982).

In Franco, our state Supreme Court restated the burden to be borne by an accused at 601: “In none of the continuances at the request of the defendant did the trial court make the finding required by

Section 545.780.3. (5)(

a) in order to make the delay therefrom excusable. However, if the defendant was to receive relief under

Section 545.780.5., he had the burden of showing not only the passage of more than 180 days but the further burden of showing that the failure to bring him to trial within that time was ‘occasioned’ by the state. State v. Newberry, 605 S.W.2d 117, 123-124 [9] Mo.1980.” (emphasis added) The record herein reflects three trial settings with the last two clearly beyond the 180-day limitation. Unfortunately, the record also reveals the trial judge failed to comply with § 545.780.3(5)(

a) in that no findings are upon the record. It appears the trial judge was not cognizant of this

section or if he was, the record fails to reveal his compliance therewith. Trial judges are admonished to become aware of this

section and in the future to comply with its terms. The question is whether the trial court’s failure to enter findings regarding the continuance of this case for trial was such a fatal defect as to demand dismissal of the charges against appellant. This court thinks not, especially upon consideration of the facts and circumstances surrounding this issue obtainable from the record. When this case was set for trial under the date of May 6, 1980, there was pending the receipt of a report of- the psychiatric examination of witness Johnson.

The record revealed that the defense desired this report, the state had not received it by the May 6th date, and the case was continued. The record further reveals appellant made the request for the trial setting of January 6, 1981. This latter date was well beyond the 180-day period prescribed by the statute. The record further reveals the matter was continued for the purpose of securing the deposition of witness Johnson. Securing of the deposition depended upon receipt of the mental examination of Johnson.

The result of the events and particular facts and circumstances in the instant case is that delay of this matter was not “occasioned” by the state. In Reed, this court quoted from a recent decision by the Eastern District in State v. Harris, 639 S.W.2d 122 (Mo.App.1982) which not only applies but is decisive of this issue in the instant case. In Harris, the court declared that where continuances were granted “for the parties” and the court neglected to make findings prescribed by § 545.780.3(5)(a): “[DJefendant benefited, or at least acquiesced, in the granting of the continuances.

A dismissal immediately prior to the time set for trial, when both parties are finally prepared, would have a negative impact on the administration of justice resulting in still further delays for the defendant and the public. For these reasons, the trial court did not err in refusing to dismiss the case for a technical violation of the speedy trial act.” In the instant case, it is shown that appellant, by request, caused a delay from May 6, 1980 until January 6,1981.

He cannot now be heard to complain that the court committed error by its refusal to dismiss the charges because trial occurred more than 180 days after his arraignment. If our trial judges would become familiar with the applicable statutes and adhere specifically to the mandate therein, this issue, on appeal, if not abolished entirely, would be more readily decided as to the direct result of clarity of the record and the entries of the trial courts.

In Franco, Harris, Reed, and Richmond, as well as in our courts, the burden of proof to be borne by an accused has been reaffirmed, in that the accused must show, by sufficient proof, that delay of trial was “occasioned” by the state. In applying the rules announced in Richmond, Franco, Harris, and Reed, it is found that, under the facts and circumstances of the instant case, appellant has failed to bear his burden of proof that delay of trial was “occasioned” by the state. There is no merit to point (1) and it is ruled against appellant.

Under point (2), appellant charges the trial court erred in charging him because the indictments and information were vague and uncertain as to the time of the alleged offense. Under this point, appellant’s argument commences with the unequivocal conclusion of his innocence. From that beginning, he points out that, according to the indictment and information, the alleged conspiracy occurred while appellant and Johnson were allegedly riding around in an automobile. Appellant then attacks the statements made by Johnson.

Appellant points out that, in his deposition, Johnson stated he “didn’t know” when the conspiracy occurred, “maybe just a few days before” (prior to January 25, 1980).

Appellant next points out that at trial, Johnson testified it was “about a week before the robbery took place.” Appellant then contends that “as a practical matter, this defendant cannot take the witness stand on this vague, uncertain charge and attempt to share with the jury the truth of where he, the defendant, may have been when this specious, alleged car conference and conspiracy took place without having some ability to know when it is alleged to have happened ...” Appellant appears to be trying to convince this court he was prevented from testifying that (

a) the conspiracy ever occurred, or (

b) of his whereabouts during the period of time preceding January 25, 1980. Neither suggestion contains substance. Respondent meets appellant’s contention by correctly pointing out that this point is raised for the first time on appeal and, hence, is not properly preserved. State v. Miller, 604 S.W.2d 702, 705 (Mo.App.1980). Hence, any review would be for plain error pursuant to Rule 29.12(b). Our statutes prescribe the requirements for indictments and information.

Section 545.-030.1, RSMo 1978 provides: “No indictment or information shall be deemed invalid, nor shall the trial, judgement or other proceedings thereon be stayed, arrested or in any manner affected: * * *

(5) For omitting to state the time at which the offense was committed, in any ease where time is not of the essence of the offence (sic); nor

(6) For stating the time imperfectly; nor

(7) For stating the offense to have been committed on a day subsequent to the finding of the indictment or information, or an impossible day, or on a day that never happened; nor * * *

(18) For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” In the instant case, the time of the offense (the conspiracy) was not the essence of the offense.

In addition, the information/indictment charged the offense occurred on or about January 25,1980, and in a second information, it was charged that the conspiracy offense occurred, “on an unknown day in January 1980.” There is nothing from the review of the indictment/information which discloses such a span of time so as to “place an impossible burden” upon appellant as to the offer of evidence of his whereabouts over a period of time. State v. Clark, 509 S.W.2d 740, 743 (Mo.App.1974).

There is nothing upon the face of either the indictment or the information that renders any of them so vague or uncertain so as to render them defective. While witness Johnson did not testify with precision as to the date and time of the offense, his testimony is not contradictory or inconsistent even though he testified it was a “short time”, a “few days” or “about a week”. Appellant points to these variances as to time, but fails to show this court how they yielded any adverse effect upon his ability to defend against the charge. In State v.

Murray, 609 S.W.2d 192, 196 (Mo.App.1980), this court, in addition to restating the rule that an information need not specify the time an offense was committed unless time is of the essence to the offense, also declared that an allegation that theft occurred between prescribed dates, coupled with evidence establishing that the theft occurred between those dates, did not render the information defective since it was “sufficient to apprise appellant of the offenses charged and to bar another prosecution therefor.” In Murray, this court cited State v.

Woodward, 130 S.W.2d 474, 475 (Mo.1939), wherein a charge that, “the act was done between _ day of July 1937 and the 4th day of May 1938” was held to be sufficient. Murray also cites Tucker v. Kaiser, 176 S.W.2d 622, 624 (Mo. banc 1944), which held sufficient an amended information alleging commission of the taking of monies while in the possession of the accused “on or about the 15th day of October A.D. 1942 and on other dates within a period of three years prior.” The court also cited State v. Newhart, 539 S.W.2d 486, 490 (Mo.App.1976). See Murray at 196.

There was no error, plain or otherwise, in the trial court’s charging of appellant because neither the wording of the indictment, nor the information, was so vague and uncertain as to warrant dismissal of the charges under the authority of § 545.030 or Murray, Woodward, Tucker or Newhart. There is no merit to point (2) and it is held against appellant. Under point (3), appellant charges the trial court should have sustained his motion for directed verdict because the evidence was insufficient and its failure to do so constituted error.

Appellant’s entire argument under this point attacks the credibility of Johnson’s testimony. It is unnecessary to again state the pertinent applicable facts recited above. Appellant contends that “uncorroborated evidence of an ‘accomplice’ will sustain a conviction of conspiracy only if it is substantial and creditable.” Although this is a correct black letter statement of the rule, it must be pointed out that we review the evidence in a manner most favorable to the state and in support of the jury’s verdict. State v. Wood, 596 S.W.2d 394 (Mo. banc 1980); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975).

In addition, in conspiracy cases “a conviction may be had on the uncorroborated evidence of an accomplice unless such testimony is so lacking in probative force as not to amount to substantial evidence.” State v. Powell, 433 S.W.2d 33, 34 (Mo.1968); State v. Evans, 545 S.W.2d 694 (Mo.App.1976); State v. Rollie, 585 S.W.2d 78, 90 (Mo.App.1979). In State v. Newberry, 605 S.W.2d 117, 118 (Mo.1980), our state Supreme Court stated: “The fact that a witness’s testimony may to some extent be contradictory does not prevent its constituting substantial evidence.

Inconsistencies in testimony are questions for jury resolution. The testimony of a single witness may be considered sufficient although the testimony may be inconsistent.” Under the facts and circumstances of the instant ease, it cannot be said the uncorroborated testimony of Johnson was “lacking in probative force as not to amount to substantial evidence.” Powell and Evans, supra. Appellant herein fails to set forth with specificity the claimed inconsistencies within Johnson’s testimony which makes such testimony unsubstantial.

The record fails to disclose inconsistencies in that testimony which would render it incredible or unsubstantial. Rollie, supra. The inconsistencies of Johnson’s testimony were of a minor nature, at best, and were best left for resolution by the jury. New-berry, supra. Point (3) is meritless and is ruled against appellant. Under point (4), appellant charges that the trial court erred in overruling his pretrial motions. In his brief, appellant sets forth each of his motions and argues the alleged error relative to each.

In disposing of this point, we address each motion and the accompanying arguments regarding each in the precise order presented by appellant. (a) “Motion for Discovery and Inspection and the Motion for Exculpatory Evidence (Brady Motions)” Aside from a broad, general declaration that these motions were specific and not general in nature, appellant offers no real argument on this issue. The record on the other hand reveals that when these motions were argued, respondent agreed to make all information in its file available to appellant. Appellant agreed to this approach which was approved by the trial court.

The record also discloses that respondent provided appellant with information relative to the plea bargain between the state and Johnson. Furthermore, respondent produced Johnson for deposition by appellant. From the record herein, we conclude that respondent complied not only with the rule announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) but with our own Rule 25.03 as well. There is no merit to (

a) of point (4) and it is ruled against appellant. (b) “The Defendant’s Request for Discovery Under Supreme Court Rule 25.03 and Specifically the Request for Polygraph Information and Mental Examination of Leonard Johnson” Under this point, appellant merely contends he was entitled to the information because of the “prophylactic” provisions of Rule 25.03, as well as the rule in State v. Rains, 537 S.W.2d 219 (Mo.App.1976). It must be noted initially that Rains is misconstrued by appellant. That case did not address the precise issues attending the motion filed by appellant.

The court in Rains acknowledged the right of an accused to discovery, but the determination in Rains was upon the untimely filing of the pre-trial motion. As to the particular information sought under this motion (i.e., the results of the polygraph examination and mental examination of Johnson), the trial court reasoned as follows. The trial court was aware of our state Supreme Court’s decision in State v. Biddle, 599 S.W.2d 182, 185 (Mo. banc 1980), which declared that the results of a polygraph examination are inadmissible and since they were inadmissible, appellant had no right to the results thereof.

On this point, see also State v. Shives, 601 S.W.2d 22, 27 (Mo.App.1980) and State v. Lieberknecht, 608 S.W.2d 93, 101 (Mo.App.1980). As regards the polygraph examina tion results, appellant sought to cross-examine Johnson from evidence inadmissible under Biddle, Shives, and Lieberknecht, supra. There is no merit to appellant’s contention as regards the court’s ruling on the polygraph examination results. With regard to the test results of the mental examination of Johnson, the trial court did not err in its denial of such request.

The issue of availability of the results of psychiatric examinations of a witness who testifies against an accused has been ruled by our courts. State v. Doepke, 536 S.W.2d 950, 951 (Mo.App.1976), United States v. Evans, 454 F.2d 813, 819 (8th Cir.1972). The rationale supporting refusal to provide this information is its confidentiality. There is no merit to appellant’s contention that he was entitled to the test results of the psychiatric examination of Johnson.

In addition to the foregoing, appellant argues he was, subject to the same motion, entitled to the arrest records of witnesses appearing for the prosecution. State v. Drake, 518 S.W.2d 335, 336 (Mo.App.1975). There is no merit to (

b) of point (4) and it is ruled against appellant. (c) “The Defendant’s Request for Investigative Help, Research Analyst and Other Experts and Services under

Section 600.150, RSMo.” Appellant here contends that there exists a great disparity between the resources of the state and that of the public defender. The appellant’s argument is summed up in the following sentence, “Why is it that the State has all of the financial resources necessary to employ people at reasonable prices when the defendant is denied such information?

This matter should be ruled against the State out of hand and the matter should be remanded to the trial court for further proceedings after allowing this investigation and research help.” Appellant argued for appointment of a law student, at the state’s expense, to assist in preparation of the case for trial. The gaping hole in appellant’s argument is his failure to advise the trial court or this court how the trial court’s refusal to grant this motion prejudiced his right to due process. Appellant presents no showing that such assistance was necessary to the preparation of the defense.

This is a basic prerequisite. State v. Brown, 599 S.W.2d 498, 505 (Mo. banc 1980), cert. denied 449 U.S. 985, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980) and State v. Carroll, 629 S.W.2d 483 (Mo.App.1982). If appellant is possessed of such strong conviction that the public defender or other appointed counsel need additional funding or counsel assistance, then his argument should be directed to our General Assembly. The allegation, real or imagined, that the public defender or other appointed counsel is placed at a disadvantage, has no place in appellate argument.

This is particularly true in the instant case, where appellant cannot even advise this court as to what end and for what purpose such additional investigative and research help would have been directed. There is no merit to (

c) of point (4) and it is ruled against appellant. (d) “The Defendant’s Motion in Limine” This motion was nothing more than a request that police officers who appear as witnesses not wear their uniforms. It is appellant’s contention that the wearing of the uniform, “merely highlights the inequity between the parties and tends to favor the testimony of the officers and grants to those officers’ testimony more credibility than the other witnesses who are testifying.” This argument has even less substance than the argument offered by appellant under (

c) above. Appellant has failed to show how the wearing of a uniform by law enforcement officials has prejudiced him. This court does not agree that by simply wearing a uniform an officer’s testimony will be given “more credibility”. A solid grasp of the tools and techniques of examination of witnesses and their use, coupled with the substance of testimony or lack thereof by a witness form the crucible from which the trier of fact formulates his or her determination of the “credibility” of a witness.

The use of these methods validated over time, in addition to a proper focus on specific evidence, is a better course to follow than some speculative conclusion about what a uniform provides. There is no merit to (

d) of point (4) and it is ruled against appellant. (e) “The Defendant’s Motion for Costs to be Advanced by the County Court” Appellant offers nothing more than an abbreviation of his argument displayed under (

c) above. There is no purpose to be served in restating this court’s response. It suffices to state that appellant makes no showing of who and to what end the advancement of costs to him were necessary or to what they were to be applied. There is no merit to (

e) of point (4) and it is ruled against him. Each of the motions and the rulings of the trial court in response to them have been carefully reviewed. Appellant fails to disclose to this court or to the trial court the necessity of granting these motions. As a result, he has failed to reveal how the trial court erred in its denial of said motions. There is no merit to point (4) in toto and it is ruled against appellant. Under point (5), appellant charges the trial court with error in “charging” appellant with a defective indictment respecting the allegation that appellant was a “Dangerous Offender”.

Appellant makes a sweeping and general charge that the indictment and the two informations were unconstitutionally vague upon a failure of § 558.016.3 to accurately and specifically define, “Dangerous”. The sum total of appellant’s position under this point is his desire to reduce his sentence from 20 years to 10 years. A review of the second amended information, filed with Leave of Court, charges appellant as a “dangerous offender” punishable by an extended sentence pursuant to § 558.016, RSMo 1978. Had appellant elected to research § 558.016, he would have found under subsection 4, the following: “4.

A ‘dangerous offender’ is one who:

(1) Is being sentenced for a felony during the commission of which he knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person; and ...” The information, as amended, advised appellant of the specific dangerous felony conviction, robbery first degree, and the specific statute, (§ 556.061[8], RSMo 1978). Contrary to appellant’s contention, the amended information was not vague or uncertain. Furthermore, it set forth with particularity the allegation of “dangerous offender” against him.

Appellant is incorrect when he concludes that neither the statute nor the information herein failed to properly define “dangerous offender”. There is no merit to point (5) and it is ruled against appellant. Under point (6), appellant charges the trial court erred in misinforming the jury by its instructions that they were being allowed some discretion in any penalty to be assessed because the court retained complete control of all sentences and penalties. Appellant further charges that no hearing was held as prescribed by § 558.-021, RSMo 1978.

Appellant’s contention that no hearing was held as prescribed by § 558.021 flies directly in the face of the record supplied to this court. The court record shows an entry of June 8, 1981, wherein a sentence of 10 years was imposed in conformity with the jury’s verdict coupled with imposition of an enhanced sentence of 10 years “for dangerous offender act”. This same entry reveals that appellant was present in person, accompanied by the same counsel now presenting this appeal. Appellant’s reliance upon State v.

Berry, 609 S.W.2d 948 (Mo. banc 1980) is not applicable to the instant case because, unlike Berry, the record reveals that both parties were before the trial court and that sentence was imposed in accordance with the “dangerous offenders act”. Appellant fails to advise this court how and upon what instruction the trial court misled the jury. There is no merit to point (6) and it is ruled against appellant. Under point (7), appellant charges trial court error in denying appellant the opportunity to cross-examine the state witnesses on two specific matters.

These matters were: (1) “The paucity of investigation in this case including but not limited to information relating to polygraph tests which were given and the failure to give others and

(2) The mental condition and examination of Leonard Johnson.” The argument in support of this point was presented in varied form under point (4)(

a) and (

b) above. What appellant sought from the trial court was permission to cross-examine witnesses upon evidentia-ry matters which were inadmissible. The trial court did not err in appellant’s request to cross-examine Johnson and Kahre. There is no merit to point (7) and it is ruled against appellant. Under point (8), appellant charges the trial court erred in failing to sustain his motion for a directed verdict at the close of respondent’s opening statement because the opening statement failed to include all necessary elements of the offense charged.

The record before this court contains the following motion presented by appellant’s counsel at the close of the opening statement by respondent: “The defendant moves for a directed verdict and asks that the jury be discharged on the basis that the prosecuting attorney has failed to state facts or suggested evidence which would direct itself to all of the issues of the present pending information.” There is nothing further in the record in this case wherein appellant advises the court that the opening statement was deficient.

There is nothing more than the foregoing overbroad statement requesting a directed verdict. Review of respondent’s opening statement discloses that the jury was advised the case involved the crime of conspiracy to commit armed robbery. The statement advised the jury of the range of punishment. The statement included a brief description of the conspiracy wherein appellant and Johnson rode around the city of Higgins-ville and appellant outlined the robbery to Johnson.

The statement also included details as to how appellant threatened Johnson with a handgun and Johnson’s final agreement to carry out the robbery under appellant’s directions. The statement also included details of the actual commission of the robbery by Johnson. The statement further included the discussion of the fact that conspiracy to commit armed robbery and armed robbery are two distinct crimes. The statement contained other specific details about Johnson and Kahre. Contrary to appellant’s contention, the opening statement of respondent was sufficient to withstand appellant’s motions for directed verdict.

Appellant’s reliance upon State v. Fenton, 499 S.W.2d 813, 815 (Mo.App.1973) is misapplied to the extent that appellant suggests Fenton mandates a directed verdict in this case. The court in Fenton reversed the conviction because the prosecutor, in his opening statement, injected the fact that accomplices of the accused had pleaded guilty. The court ruled this injected “venom” into the statement. Fen-ton is also noteworthy because the court in that case reaffirmed the guidelines for the state’s opening statement.

The court stated, “The prosecuting attorney in a criminal prosecution has the duty to ‘state the case’ [§ 546.070(1), RSMo 1979] and in general advise the jury as well as the defendant of the facts relied upon for a conviction.” Taking this principle and applying it to the present appeal, the record verifies this is exactly what occurred in the instant case. The trial court properly denied appellant’s motion. There is no merit to point (8) and it is ruled against appellant.

Under his final point (9), appellant charges that the trial court erred in its refusal to grant him a mistrial because a witness for the state made an improper statement about appellant’s past criminal record. This entire issue arose during the direct examination of witness Johnson. The prosecutor was inquiring of Johnson about the details of appellant and Johnson in the automobile and how Johnson became involved in the matter. The pertinent portion of the record reveals: “Q. Did Mr. Moore give you something in that car that day? A. Yes. Q. What? A. The gun. Q. Did he say anything to you when he gave it to you?

A. Yes, he said, ‘Here, use this’. Q. Mr. Johnson, when you got that gun, why was it you would still be afraid of Mr. Moore? A. Repeat that. Q. Once he gave you the gun, why would you be afraid of Mr. Moore? A. Because he’s been in the penitentiary before, and I’m scared of him, scared he might hurt me because he had threatened me two times before that. Q. Was this the same gun Mr. Moore pulled on you before? A. No.” Counsel asked to approach the bench and appellant’s counsel stated to the court: “I’m sorry, Your Honor, but the witness is making improper comment.

This is the state’s own witness and now he’s commenting on Mr. Moore’s past conduct, and I think its an improper statement and I ask for a mistrial and ask the jury be discharged.” The court overruled appellant’s motion for mistrial. There followed a discussion by counsel and the court. Appellant’s counsel asked the court to instruct the prosecutor to in turn instruct the witness not to make further reference to appellant’s past history. The court asked appellant’s counsel if he wanted such instruction made before the jury.

Appellant declined the offer stating through counsel, “No, I think he should make that very private.” Further discussion included appellant through counsel stating, “... I’m asking specifically that we not highlight it, that we not direct the jury, but that we leave it alone ...” It is evident from a review of the whole record that the line of inquiry pursued by the state was to point out why, if Johnson had physical control of the gun after appellant handed it to him, Johnson was still fearful. The questions were propounded to establish the fact that appellant had threatened Johnson on prior occasions.

Johnson’s statement that appellant had been in the penitentiary in the past was an unsolicited passing comment by the witness. Such statement under the facts and circumstances did not, upon motion, warrant the drastic action of a mistrial. The grant of a mistrial is within the discretion of the trial court and is to be granted “where error committed during the course of the trial is so grievous and prejudicial that its effect cannot be removed in any other way.” Kansas City v. LaRose, 524 S.W.2d 112, 120 (Mo. banc 1975), State v. Graham, 527 S.W.2d 936, 942 (Mo.App.1975).

Under all the facts and circumstances of this case, Johnson’s passing and unsolicited reference to appellant’s having been in the penitentiary previously also bore upon the issue of Johnson’s fear of appellant. In State v. Lee, 626 S.W.2d 252, 254 (Mo. banc 1982), our state Supreme Court ruled that introduction of outstate prison records and testimony by a co-conspirator that he and the accused were escapees was proper, and an exception to the rule prohibiting evidence of other crimes, when such went to establish identity, motive, intent, a common scheme or plan and to install fear in the victim.

Johnson testified that he initially refused to carry out the robbery when it was suggested by the appellant. Johnson further testified that he agreed, out of fear of appellant. This evidence, including the unsolicited response by Johnson, was probative of Johnson’s fear of appellant. The trial court did not abuse its discretion in denying appellant’s motion for a mistrial. On the contrary, the record reveals the trial judge, short of a mistrial, offered to accommodate appellant in any manner appellant selected.

After a discussion between counsel and the court, it was decided the most appropriate approach was to draw no further attention to appellant’s past penitentiary history. There is nothing upon the record herein where any other reference was made to that fact. It cannot be said, under all the facts and circumstances herein, that appellant was prejudiced in his rights to a fair trial. Point (9) is without merit and is ruled against appellant. The judgment is affirmed. WASSERSTROM, J., concurs in separate concurring opinion. KENNEDY, J., dissents in separate dissenting opinion.