1.00		SUPPLEMENTAL NOTES ON USE
A.	MACH-CR 2d – Introduction
	MACH-CR is an acronym for Missouri Approved Charges-Criminal.  The first volume of MACH-CR contains charges originally published 1-1-79, as well as supplemental charges that have been included in response to new legislation or judicial interpretation.  MACH-CR 2d contains charges effective January 1, 2017.  Charges will be added and deleted as supplements are published.  Occasionally, charges are included both for offenses occurring on or after an effective date of new legislation and for the same or similar offenses punishable before the time of the passage of new legislation.  It is recommended that deleted charges be retained for future reference in prosecutions for offenses occurring when the deleted charges were in effect.  The number of each charge, in most cases, represents the corresponding last four (4) digits of the MAI-CR 4th instructions.  See for example MACH-CR 2d 14.02 Murder in the First Degree and MAI-CR 4th 414.02.

B.	Inclusion of Charges
	This charge book contains forms for most criminal offenses.  In those instances when no form is published, indictments or informations should be drafted by tracking the language of the particular statute stating the offense.  See MACH-CR 2.00 Series.  For charges not contained in MACH-CR 2d, it may be helpful to consult the forms contained in the first volume of MACH-CR, but care should be taken to compare the form with subsequent legislative changes.

	Rule 23.01(b) Misdemeanors or Felonies - Indictment or Information - Form of provides:
	The indictment or information shall:
		(1)	State the name of the defendant or, if not known, designate the defendant by any name or description by which the defendant can be identified with reasonable certainty;
		(2)	State plainly, concisely, and definitely the essential facts constituting the elements of the offense charged, including facts necessary for any enhanced punishment;
		(3)	State the date and place of the offense charged as definitely as can be done.  If multiple counts charge the same offense on the same date or during the same time period, additional facts or details to distinguish the counts shall be stated;
		(4)	Cite the statute alleged to have been violated and the statutes that fix the penalty or punishment therefor; and
	(5)	State the name and degree, if any, of the offense charged.
		All indictments or informations that are substantially consistent with the forms of indictments or informations that have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).

C.	Use of Parentheses or Brackets
	Parentheses or brackets in the forms enclose matter that should either be included or omitted, depending upon the facts of the particular case.  In most cases, it is readily apparent whether the matter in parentheses or brackets should be included or omitted.  In other instances, directions or suggestions are included in Notes on Use.  Generally, material within parentheses provides choices for the drafter, while material included within brackets gives directions.  Care should be exercised to assure all material included in the final draft of the charge is consistent.

D.	Endorsement of Witnesses
	The state shall endorse the witnesses for trial when the indictment or information is filed.  A witness may be added later only by leave of court.  Rule 23.01.
	If the offense charged is a sexual offense or a domestic violence offense, the victim may be identified by means other than the victim's name and may be identified by initials.  See Section 595.226, RSMo 2016.  This does not alter the prosecution's duty to supply the names of all endorsed witnesses to the defense.

E.	Amendment of Information or Substitution of Indictment by Information	
	Rule 23.08 Misdemeanors or Felonies - Indictment or Information - Amendment or Substitution - Delay provides:
	Any information may be amended or an information may be substituted for an indictment at any time before verdict or finding if: 
	(a)	No additional or different offense is charged, and
	(b)	A defendant's substantial rights are not thereby prejudiced.  
	No such amendment or substitution shall cause delay of a trial unless the court finds that a defendant needs further time to prepare a defense by reason of such amendment or substitution.
It is not permissible to amend an information to charge a different offense from the one originally charged without the defendant's consent and a knowing waiver.
	An included offense is not a "different offense."  An included offense is a lesser included offense, a lesser degree offense, or an attempt to commit an offense.  Section 556.046, RSMo 2016.
	Amendment of an information may be allowed any time before verdict or finding by the fact finder if an additional or different offense is not charged and defendant's substantial rights are not prejudiced.  The test for prejudice is "whether a defense to the charge as originally made would be equally available after the amendment and whether defendant's evidence would be equally applicable after, as well as before, the amendment ... ."  See State v. Seeler, 316 S.W.3d 920, 925-928 (Mo. banc 2010).

F.	Included Offenses
	The state may charge a higher offense and later submit an instruction on a lesser offense if the lesser offense is an included offense of the offense charged.  See Section 556.046, RSMo Supp. 2009.

G.	Variance Between Information and Verdict Directing Instruction
	Some statutes provide that an offense may be committed by one of several methods, for example, robbery in the first degree.  A person may not be charged with one offense or with one form of an offense and convicted of another if the charge prevents the defendant from receiving adequate notice of the offenses for which the defendant is on trial.  Variance, to justify reversal, must be material and prejudicial to the rights of the accused.  Care should be exercised in assuring that the proof conforms to the charge and that the instruction does not vary from the charge.

H.	Bill of Particulars
	The defendant may request and the court may order the state to file a bill of particulars.  See Rule 23.04.  The purpose of a bill of particulars is to inform the defendant of the particulars of the offense to enable the defendant to prepare a defense.  It is not a substitute for an indictment or amendment of an information.  It will not cure an invalid indictment or information.  It merely describes with greater particularity essential facts contained within a valid indictment or information. 

I.	Joinder of Offenses
	Rule 23.05 Misdemeanors or Felonies - Indictment or Information - Joinder of Offenses provides:
	All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.
Under this rule, a common scheme or plan links two or more offenses together whenever the offenses are "products of a single or continuing motive."  See State v. Bechhold, 65 S.W.3d 591 (Mo. App. 2002); State v. Spencer, 62 S.W.3d 623 (Mo. App. 2001).  Offenses should be liberally joined to encourage judicial economy.  State v. Moore, 745 S.W.2d 224, 227 (Mo. App. 1989).
	Each offense should be charged in a separate count.  An indictment or information that charges more than one offense in a single count is "duplicitous."  A duplicitous charge involving "multiple acts" will raise issues of juror unanimity when drafting the verdict director(s).  See MAI-CR 4th 404.02, Notes on Use 7, "Verdict Unanimity in Multiple Acts Cases."  
	An indictment or information that charges one offense in more than one count is "multiplicitous" and constitutes double jeopardy.  See State v. McTush, 827 S.W.2d 184 (Mo. banc 1992).

J.	Severance of Offenses
	Rule 24.07 Misdemeanors or Felonies - Severance of Offenses provides:
	When a defendant is charged with more than one offense in the same indictment or information, the offenses shall be tried jointly unless the court orders an offense to be tried separately.  An offense shall be ordered to be tried separately only if:
	(a)	A party files a written motion requesting a separate trial of the offense;
	(b)	A party makes a particularized showing of substantial prejudice if the offense is not tried separately; and
	(c)	The court finds the existence of a bias or discrimination against the party that requires a separate trial of the offense.
	The trial court, in determining whether to grant a motion for severance, should weigh the benefits of judicial economy against potential prejudice to defendant.  To assess prejudice, the court should consider the number of offenses charged, complexity of the evidence, and the jury's ability to distinguish evidence and apply the law to each offense.  See State v. Sanders, 714 S.W.2d 578, 585 (Mo. App. 1986).
	
K.	Joinder of Defendants
	Rule 23.06 Misdemeanors or Felonies - Indictment or Information - Joinder of Defendants provides:
	Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.  Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.
	Courts traditionally favor joint trials.  The decision to sever a joint trial lies within the sound discretion of the trial court.  See for example State v. Isa, 850 S.W.2d 876, 885 (Mo. banc 1993).  See Rule 24 to determine when severance of defendants is appropriate.
	One issue that may arise is a constitutional violation of the confrontation clause.  Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968).  In Bruton, the court held in a joint trial that the use of a co-defendant's confession directly implicating the defendant as a participant in the offense when the co-defendant does not testify violates a defendant's rights under the confrontation clause of the Sixth Amendment.
	Also, Rule 27.04 provides that one co-defendant may not testify against another co-defendant in a joint trial.  To avoid this prohibition, each defendant may be charged separately.

L.	Repeat Offenders
	See MACH-CR 2d 2.30 and the Notes on Use for guidance in charging repeat offenders.

M.	Defendant's Responsibility for Conduct of Another Person
	A defendant is responsible for his or her conduct and may be responsible for the conduct of another person.  See MAI-CR 4th 404.04 for a discussion of accessorial liability.

N.	Charging in the Conjunctive
	In general when charging, join successive words, phrases and parenthetical or bracketed material with an "and" (to charge conjunctively), and when instructing, join alternative submissions with an "or" (to instruct disjunctively).  By using an "and" in charging, the charge may be more inclusive than may be required for submission of an offense or offenses.  See for example St. Louis County v. Ryan, 738 S.W.2d 951, 952-953 (Mo. App. 1987).

O.	Time of the Offense
	Rule 23.01(b)(3) provides that the indictment of information shall "[s]tate the date and place of the offense charged as definitely as can be done."
	Section 545.030.1(5), RSMo 2016, provides that no indictment or information shall be deemed invalid "[f]or omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense."
	Generally, the charge should include a specific date in the MACH-CR form, for example "on September 1, 2002," or should state that the offense occurred "on or about" a specific date.
	Less specificity is required in cases involving youthful victims and particularly in sexual offense cases.  See State v. Hoban, 738 S.W.2d 536, 539-40 (Mo. App. 1987) ("The child victim was unable to narrow the time span to a shorter period than the time frame while she was in second and third grade.").
	When defendant is charged in multiple counts with multiple sexual offenses against a young victim and the victim cannot be specific as to time, supply other details in each count (e.g., "in Aunt Polly's bedroom") so that the counts can be distinguished from one another.
	Specifying a specific date or time may become of "decisive importance" (a) when evidence of alibi is introduced, or (b) where a statute of limitations may be involved, or (c) where the defendant may have committed several separate offenses against the same victim over a short span of time. 

P.	Defenses
	In general, it is not necessary to refer to a "defense" in the indictment or information.  Consequently, statutory exceptions requiring that the defendant inject the issue into the case do not need to be negated in the charging document, although the state has the burden of persuasion on the issue.  For example, in a homicide prosecution, the failure of the defendant to act in self-defense does not need to be charged.  If the issue of self-defense is injected at trial, the state must then prove beyond a reasonable doubt that the defendant did not act in lawful self-defense.  The submission of defenses to a particular offense, including "special negative defenses" like self-defense, are explained in MAI-CR 4th.  See 304.11 Defenses and the Notes on Use to specific verdict directors.  At times it is unclear whether an exemption is a "defense" or an "element of the offense."  

Q.	Venue
	All charges are drafted to specify a county, or in the case of the City of St. Louis, a city, in which the offense was committed.  When drafting indictments or informations, include a reference to a county or, in the case of St. Louis, a city, in order to properly allege venue of the offense.  Venue need not be proved beyond a reasonable doubt or by direct evidence, but it may be inferred from all the evidence.
	Section 541.033.1, RSMo 2016, is the general venue statute.  It provides:
	Persons accused of committing offenses against the laws of this state, except as may be otherwise provided by law, shall be prosecuted:
	(1)	In the county in which the offense is committed; or
	(2)	If the offense is committed partly in one county and partly in another, or if the elements of the offense occur in more than one county, then in any of the counties where any element of the offense occurred.
There are many special venue statutes.  See Chapter 541, RSMo, and Section 565.001, RSMo 2016, (the homicide venue statute).  Make such changes as may be necessary to the charge.
	The MAI-CR 4th instructions do not include venue as an element of the verdict directors.  Venue is not an element of a criminal offense and the state is not required to prove venue at trial.  For general discussion, see State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007).  Although venue is not an element of the offense, the Missouri Constitution provides that a defendant has the right to stand trial in the county in which the defendant is alleged to have committed the offense.  Missouri Constitution article I, Section 18(a).  Section 541.033.1, RSMo 2016.
The MACH-CR 2d charging forms do include the allegation of venue.  If a defendant charged with an offense believes that the venue alleged in the information is incorrect, the defendant should object to the venue before trial and have the trial judge determine whether the venue is correct.  If the trial judge determines that the venue is incorrect, the remedy is not dismissal, but rather a transfer of the case to the proper venue.  See Section 476.410, RSMo 2016. 

R.	Statute of Limitations
	The charge must allege that acts charged occurred within the period of the statute of limitations.  A charge relying on the statute of limitations being tolled must specifically allege facts upon which the tolling is based.  See Section 556.036, RSMo 2016.

S.	Identifying the Victim in the Charge
	The charge forms direct the user to "Identify the victim."  Section 595.226, RSMo 2016, provides that no identifying information of the victim should be released to the public if the offense involves a "sexual assault, domestic assault, stalking, rape in the first or second degree, or forcible rape."  Identifying information includes: name, home or temporary address, telephone number, Social Security number, or physical characteristics.  Consistent with this statutory directive, the victim should be identified by means other than the victim's name and may be identified by initials. 

T.	Gender-Neutral, Singular Form
	Some pattern charges in MACH-CR 2d are written using the masculine gender and the singular form.  If using the masculine gender and the singular form is inappropriate, make the necessary modifications.
	Use of the pronouns "he" or "she" is appropriate when the gender of the person is known.  Otherwise, use the name of the party or witness or use the noun "defendant" or "witness."
	Substitute gender-neutral nouns for gender-specific nouns.  For example, use "police officer" instead of "policeman."

U.	Conclusion
	Suggestions for changes and additions to the MACH-CR 2d forms may be addressed to the Committee.