dissenting opinion.
I respectfully dissent. I disagree with the majority’s conclusion that the defendant was prejudiced when the State amended the language in the charge against him. I would affirm the trial court’s judgment.
So long as the defendant properly was charged and convicted, it is not this Court’s task to Monday-morning-quarterback the State’s decision to charge him with a certain crime or to present to the jury a particular theory of the case. This case involves the serious matter of a young man’s death at the hands of a drunken driver; there is no reason to make this sad case into a means for hindsight criticism of the policy considerations and semantics relied on by the legislature in passing a constitutional statute.
1. There is no “right-of-way” element at issue in this case
The defendant was convicted and sentenced for the class B felony of involuntary manslaughter as set forth under section 565.024.1(3)(a), RSMo Supp.2007.1 I take issue with those portions of the majority’s opinion that suggest that the defendant’s conviction under section 565.024.1(3)(a) required the State to prove that the defendant left the highway or its right-of-way. The majority at Page 11 states: “The statute applies only when the defendant leaves a highway ... [; t]he closed construction zone still would be part of the highway as defined in section 301.010, but is it part of the right-of-way, an undefined term in this context?” And at Page 13 it suggests that the issue of whether the defendant left the right-of-way was “a necessary part of the case.”
There should be no doubt that leaving the highway or right-of-way is not an element of the crime articulated in section 565.024.1(3)(a).2 The phrase in the statute stating “including the death of an individual that results from the defendant’s vehicle leaving a highway ... or the highway’s right-of-way” does not outline a required showing for the State’s case. Instead, this *929language illustrates a type of victim who might be included in the category of “any person not a passenger in the vehicle operated by the defendant.” The phrase clarifies that the non-passenger victim of the drunken driver may be a person wholly unconnected to the roadway, much less to the drunken driver.
In the defendant’s case, the jury was not required to find that the defendant left the technical bounds of the highway or right-of-way because the facts of this case did not warrant that analysis. Instead, the jury was tasked with determining if the State proved that the defendant: (1) was driving drunk; and (2) while driving drunk, acted with criminal negligence by entering the construction zone and driving in a lane closed to traffic; and (3) this criminal negligence caused the non-passenger victim’s death. The majority does not dispute that the State proved each of these elements.
II. The defendant was not prejudiced
While the majority does not disagree that the State proved each of the elements necessary for the defendant’s conviction under section 565.024.1(3)(a), the majority also concludes that the defendant’s conviction was invalid. It contends that he was prejudiced when the State was permitted to file an information that removed language alleging that he had left the highway’s right-of-way.3 I disagree with the majority’s conclusion that the defendant was prejudiced by the filing of the information.
As the majority notes, the trial court’s decision to allow the State to file the amended language in the information is reviewed only for an abuse of discretion. An abuse of discretion is found when the trial court’s decision is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Fassero, 256 S.W.3d 109, 115 (Mo. banc 2008). In this case, there was no abuse of discretion because the trial court’s decision to permit the State to file the information was logical, reasonable, and carefully made.
At the close of the State’s evidence, the defendant moved to dismiss the State’s indictment against him, arguing that the State’s evidence failed to support its indictment language stating that he had left the highway’s right-of-way. The State noted that the instruction in the case would conform to the evidence and offered to file an information in lieu of the indictment that would correct the defendant’s misunderstanding that the charges against him hinged on his leaving the right-of-way. *930The defendant complained that he had prepared his defense to focus on his having not left the highway’s right-of-way. But the trial court responded that the defendant had “always been on notice that the charge was that he was driving while intoxicated, and with criminal negligence, and caused the death of the victim ... by driving in a closed construction zone.” It noted that the State’s proposed changes to the indictment did not change the facts of the case and “[didjn’t cause any prejudice.” Immediately after the trial court denied his motions, the defendant began the presentation of his evidence. At no point during the trial did he request a continuance in light of the State’s amended language in the information.
Rule 23.08 provides in relevant part: “Any information may be amended or an information may be substituted for an indictment at any time before verdict or finding if: (a) [n]o additional or different offense is charged, and (b) [the] defendant’s substantial rights are not thereby prejudiced.” I agree with the majority that, consistent with the allowances of Rule 23.08, nothing in the information altered the crime with which the defendant was charged.4 Unlike the majority, however, I do not find that the defendant’s “substantial rights” were prejudiced.
The majority contends that the defendant suffered Rule 23.08 prejudice because the removal of the right-of-way language in the information rendered irrelevant his planned defenses centering on his having remained on the highway’s right-of-way. I disagree with the majority’s conclusion that the defendant’s loss of his right-of-way defense was more than the mere loss of a technical defense. The majority wrongly assumes that the indictment treated the right-of-way allegation as “a necessary part of the case.” The State’s amended language in the information had no impact on the elements of the crime that the State was required to prove: (1) the defendant, while in an intoxicated condition, operated a motor vehicle in this state; (2) when so operating, he acted with criminal negligence; and (3) this criminal negligence caused the death of any person not a passenger in his vehicle. Because the issue of whether the defendant left the right-of-way was immaterial to the elements the State had to prove for his conviction, the right-of-way issue was merely a technical defense. The defendant suffered no violation of Rule 23.08 when this technical defense became unnecessary after the information was filed. See State v. Endicott, 881 S.W.2d 661, 664 (Mo.App. 1994).
I also disagree with the majority’s finding that the defendant suffered Rule 23.08 prejudice because the amended language in the information “shifted the focus of the evidence.” State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964), held that “[t]he test of prejudice is whether a defense under 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.” Unlike the majority, however, I would not extend Taylor to find that the defendant was prejudiced when he was left without a reason to raise defenses that were irrelevant to the elements of the crime charged. The defendant suffered no Rule 23.08 prejudice when his anticipated argument to the jury was altered, as he was not prejudiced by the inability to argue an unnecessary fact. See State v. Bratton, 779 S.W.2d 633, 635 (Mo.App.*9311989) (noting that there can be no prejudice under Rule 23.08 when the language removed from the charging document is unnecessary to the crime charged).5
The amended language in the information did not confront the defendant with additional factual allegations. See id. The information removed the right-of-way allegation and simply rephrased the allegation that he was driving in a “close[d] construction zone” to the equivalent allegation that he was driving “in a construction zone and drove into a lane closed to traffic.” In my view, the defendant’s non-right-of-way defenses remained relevant after the information was filed. In addition to arguing that he never left the right-of-way, the defendant also argued that, even if he had left the right-of-way, his actions were reasonable and not criminally negligent. He argued that he did not act with criminal negligence because the construction zone lane closures were confusing and other drivers were driving similarly to him. He further asserted in his defense that he was not intoxicated at the time he struck the victim with his vehicle. The defendant’s intoxication defense and his defense that he did not act with criminal negligence were still available to him after the information was substituted in lieu of the indictment.
Rule 23.08 permits alterations in the charge language “at any time before verdict or finding,” which clearly contemplates that the charge language may need to be altered — and the defendant’s defense may need to be reconsidered accordingly— at a time past the State’s presentation of the evidence. The defendant’s position in this case is, in essence, an argument that Rule 23.08’s time limitation should be read as “at any time before the defendant’s counsel prepares his trial notebook.” It seems disingenuous to allow the defendant to claim that he was prejudiced substantially by the amended language in the information when, even though he had notice that he should alter his defense strategy, he did nothing to bolster his defenses to address the State’s presented evidence. He complains that he would have cross-examined the State’s witnesses differently, but he fails to explain why he did not have adequate time to recall those witnesses during his presentation of evidence.
Contrary to the majority’s findings, the defendant suffered no Rule 23.08 prejudice. The trial court should not be convicted of abusing its discretion for reaching that reasonable conclusion.
III. Conclusion
For the foregoing reasons, I would affirm the trial court’s judgment.
. This statute provided in relevant part that a person committed the crime of involuntary manslaughter in the first degree if he or she:
(3) While in an intoxicated condition operate[d] a motor vehicle in this state, and, when so operating, act[ed] with criminal negligence to:
(a) Cause the death of any person not a passenger in the vehicle operated by the defendant, including the death of an individual that resulted] from the defendant's vehicle leaving a highway, as defined by section 301.010, RSMo, or the highway’s right-of-way[.]
All statutory references are to RSMo Supp. 2007.
. A section 565.024.l(3)(a) conviction requires the State to prove: (1) the defendant, while in an intoxicated condition, operated a motor vehicle in this state; (2) when so operating, he acted with criminal negligence; and (3) this criminal negligence caused the death of any person not a passenger in his vehicle. The statute does not require that the State prove a given location of the incident beyond its being "in this State.”
. The original indictment stated that the defendant:
[C]ommitted the class B felony of involuntary manslaughter in the first degree ... [when he], while under the influence of alcohol and/or a controlled substance caused the death of Gavin Donohue by striking him with a motor vehicle when operating a motor vehicle with criminal negligence in that defendant was driving in a close[d] construction zone, thereby leaving said highway’s right of way and, Gavin Do-nohue was not a passenger in the vehicle operated by the defendant.
(emphasis added).
In the information substituted in lieu of the indictment, the State altered its theory of how the defendant acted with criminal negligence:
[C'Jommitted the class B felony of involuntary manslaughter in the first degree ... [when he], while under the influence of alcohol caused the death of Gavin Donohue by striking him with a motor vehicle when operating a motor vehicle with criminal negligence in that defendant was driving in a construction zone and drove into a lane closed to traffic, and Gavin Donohue was not a passenger in the vehicle operated by the defendant.
(emphasis added).
. Under both the indictment and the information, the defendant's crime fell under the provisions of section 565.024.1 (3)(a), as the victim of the involuntary manslaughter clearly was alleged to be a person “not a passenger” in the defendant's vehicle.
. The majority cites no persuasive authority supporting its conclusion that the defendant was prejudiced for Rule 23.08 purposes because he was left without a reason to counter an irrelevant issue at trial.