                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2363
                                    ___________

Joseph Lee,                        *
                                   *
      Appellant,                   *
                                   * Appeal from the United States
      v.                           * District Court for the Western
                                   * District of Missouri.
James Gammon, Superintendent,      *
and Jeremiah (Jay) Nixon,          *
Attorney General, State of         *
Missouri,                          *
                                   *
      Appellees.                   *
                              ___________

                              Submitted: June 13, 2000

                                   Filed: August 11, 2000
                                    ___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Joseph Lee was convicted in Missouri state court of first-degree robbery, based
on a robbery in which the victim was shot to death. After the Missouri Supreme Court
affirmed his conviction and upheld the denial of his motion for post-conviction relief,
see State v. Lee, 841 S.W.2d 648 (Mo. 1992) (en banc), Mr. Lee petitioned for habeas
corpus relief in federal court. See 28 U.S.C. § 2254. The district court1 denied the
petition without a hearing, and Mr. Lee appeals. We granted a certificate of
appealability solely as to Mr. Lee's contention that his constitutional rights were
violated when the jury was instructed that it could find him guilty of committing
first-degree robbery by a method that had not been charged in the information. We
affirm the judgment of the district court.

                                             I.
       In Missouri a defendant commits first-degree robbery by forcibly stealing
property if, inter alia, the defendant, "[c]auses serious physical injury to any person,"
see Mo. Ann. Stat. § 569.020.1(1), or "[i]s armed with a deadly weapon," see Mo.
Ann. Stat. § 569.020.1(2). Here the state court information alleged that Mr. Lee
forcibly stole property and "in the course thereof [he] was armed with a deadly
weapon." The jury, however, was instructed to convict Mr. Lee of first-degree robbery
if they found that in the course of forcibly taking property from the victim, he "caused
[the victim] serious physical injury." The state trial court defined "serious physical
injury" as "physical injury that creates a substantial risk of death or that causes serious
disfigurement or protracted loss or impairment of the function of any part of the body,"
see Mo. Ann. Stat. § 556.061(28).

       The Missouri Supreme Court accepted transfer of the case from the state court
of appeals, see Mo. Const. art. 5, § 10, to address the effect of a verdict-directing
instruction that submits a method for committing the crime that differs from the method
alleged in the information. See Lee, 841 S.W.2d at 649. Relying on state case law, the
Missouri Supreme Court found that the difference between the information and the
verdict-directing instruction was "material" because it affected "whether [Mr. Lee]
received adequate notice from the information," id. at 650. The court reasoned,


      1
      The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri.

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however, that Mr. Lee was not prejudiced because there was "absolutely no evidence
of serious physical injury to [the victim] other than the gunshot wound," which was the
"very evidence" that Mr. Lee contended that he expected to meet at trial, id. at 651.

                                           II.
       A federal court may not grant a petition under 28 U.S.C. § 2254 unless the court
concludes that the state court adjudication of the claim "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the [United States] Supreme Court ... or ... resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding," see 28 U.S.C. § 2254(d); see also Williams
v. Taylor, 120 S. Ct. 1495, 1518-23 (2000). In reviewing a state conviction, a federal
court also presumes that the state court's factual determinations are correct; this
presumption may be rebutted only by clear and convincing evidence, see 28 U.S.C.
§ 2254(e)(1).

       The sixth amendment guarantees that "[i]n all criminal prosecutions, the accused
shall enjoy the right ... to be informed of the nature and cause of the accusation," and
is made applicable to the states through the fourteenth amendment. See Gannett
Company, Inc. v. DePasquale, 443 U.S. 368, 379 (1979). In addition, the due process
clause of the fourteenth amendment itself provides the accused with the "clearly
established" right to notice of the charges and a "chance to be heard in a trial of the
issues raised by that charge." See Cole v. Arkansas, 333 U.S. 196, 201 (1948); see
also In re Oliver, 333 U.S. 257, 273 (1948).

       The question before us, we think, is not the adequacy of the state's charging
document (primarily a question of state law), but rather whether Mr. Lee actually
received notice of the crime of which he was convicted. See Cokeley v. Lockhart, 951
F.2d 916, 918-19 (8th Cir. 1991), cert. denied, 506 U.S. 904 (1992). Mr. Lee contends
that based on the information, he was prepared to show at trial that he neither carried

                                          -3-
nor used a gun during the robbery, but that the instruction permitted the jury to convict
him of a different crime -- committing first-degree robbery by causing serious physical
injury to the victim.

       According to the Missouri Supreme Court, however, see Lee, 841 S.W.2d at
651, the evidence presented at trial supported only one "serious physical injury": the
gunshot wound to the victim. Thus, the state court concluded, id., when the jury was
asked to determine whether Mr. Lee committed robbery by "[c]aus[ing] serious
physical injury to any person," see Mo. Ann. Stat. § 569.020.1(1), the jury was
necessarily asked whether Mr. Lee was "armed with a deadly weapon," see Mo. Ann.
Stat. § 569.020.1(2), and thus caused the gunshot wound that occurred during the
robbery. Because Mr. Lee does not contend that he was denied notice that he would
have to defend against this charge, we conclude that he cannot prevail on his
constitutional claim unless we reject the state court's finding that the gunshot wound
was the only conceivable "serious physical injury," see Mo. Ann. Stat. § 569.020.1(1).

       The Missouri Supreme Court examined all of the evidence presented at trial,
including the victim's scrapes, bruises, and black eyes, and determined that only the
gunshot wound met the state-law definition given to the jury of "serious physical
injury," Lee, 841 S.W.2d at 651 n.3. We believe that this involves a question of state
law, which we, of course, may not review, even under the deferential standard of 28
U.S.C. § 2254(d). See, e.g., Hortonville Joint School District No. 1 v. Hortonville
Education Association, 426 U.S. 482, 488 (1976). Even assuming that we may review
the state court's conclusion on the ground that it involves a factual determination, we
do not find that the court's decision "was based on an unreasonable determination of
the facts in light of the evidence," see 28 U.S.C. § 2254(d)(2). We therefore conclude
that Mr. Lee had both notice and the opportunity to defend against the crime of which
he was actually convicted, and thus that his sixth and fourteenth amendment rights were
not violated.


                                          -4-
                                III.
Accordingly, we affirm the judgment of the district court.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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