State v. Arnold

• Decision Date: 02 April 2013
• Docket Number: No. SD 31992.,SD 31992.
• Citation: 397 S.W.3d 521
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Francis Wayne ARNOLD, Defendant–Appellant.
• Court: Missouri Court of Appeals

397 S.W.3d 521

STATE of Missouri, Plaintiff–Respondent,

v.Francis Wayne ARNOLD, Defendant–Appellant.

No. SD 31992.

Missouri Court of Appeals,

Southern District,

Division Two.

April 2, 2013.

Craig A. Johnston, Columbia, MO, for appellant.

Chris Koster, Atty. Gen., Todd T. Smith, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, J.

Following a jury trial, Francis Arnold(Defendant) was convicted of the class B felony of trafficking in stolen identities and sentenced to 15 years imprisonment.See§ 570.224.¹On appeal, Defendant presents two points of error.In Point I, Defendant contends the trial court erred by overruling Defendant's motion for judgment of acquittal at the close of the evidence.Defendantargues that the evidence was insufficient to support his conviction.In Point II, Defendant contends the trial court committed plain error by submitting a verdict-directing instruction which lacked a definition required by MAI–CR 3d 324.41.1.Defendant argues that: (1) the required definition for the crime of “identity theft” was omitted from the verdict director; and (2) at trial, Defendant seriously disputed the issue of whether he knowingly possessed the means of identification.We deny Point I because the State made a submissible case.We grant Point II, however, because Defendant has met his burden of showing that a plain error occurred and that a manifest injustice would result if the error is left uncorrected.Therefore, we reverse the judgment and remand the case for a new trial.

This Court views the facts in the light most favorable to the verdict.State v. Cooper,215 S.W.3d 123, 124(Mo. banc 2007).So viewed, the following evidence was presented at trial.

On April 28, 2011, Webster County Deputy SheriffPaul Bridgewater(Deputy Bridgewater) pulled over onto a shoulder of I–44 to find a parked, two-door car.Defendant was standing beside the open passenger door, facing the car and urinating on the side of the road.As soon as the deputy approached, another person sitting inside the vehicle quickly exited and ran away.²Defendant, who appeared to be intoxicated, was placed in the patrol car.The deputy looked into the empty car through the open passenger door.The passenger seat was upright.Deputy Bridgewater noticed several “IDs” laying on the passenger seat and the passenger floorboard.When Deputy Bridgewater asked Defendant about those items, Defendant“denied everything.”He did admit, however, that it was his vehicle and that he had been a passenger in the car.Defendant was arrested for trafficking in stolen identities in violation of § 570.224.

During Deputy Bridgewater's trial testimony, several items found in the passenger seat and floorboard of the car were admitted in evidence.They consisted of the following: two checkbooks, a driver's license, a credit card, and two social security cards—all belonging to separate individuals.Defense counsel stipulated that all six items were means of identification and that said items were in Defendant's vehicle without the owners' permission or lawful consent.Throughout the proceedings, however, it was defense counsel's position that Defendant did not “knowingly possess” these means of identification.At the close of the evidence, the trial court denied Defendant's motion for judgment of acquittal.

During the instruction conference, defense counsel did not object to any of the jury instructions.The verdict-directing instruction stated:

INSTRUCTIONNO. 7

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about April 28, 2011, in the County of Webster, State of Missouri, the defendant possessed a checkbook owned by Justine Brown, a checkbook owned by Britney Steele, a Missouri driver's license identifying Amber Steele, a social security card identifying Robert Ward, a social security card identifying Cynthia Ward and a Visa credit card identifying Robert Ward, and

Second, that such items were means of identification, and Third, that defendant intended to sell or transfer such information for the purpose of committing identity theft,

then you will find the defendant guilty of trafficking in stolen identities.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the term “means of identification” includes, but is not limited to, the following: Social Security numbers; drivers license numbers; checking account numbers; savings account numbers; credit card numbers; debit card numbers; personal identification (PIN) code; electronic identification numbers; digital signatures; any other numbers or information that can be used to access a person's financial resources; biometric data; fingerprints; passwords; parent's legal surname prior to marriage; passports; or birth certificates.

As used in this instruction, the term “possessed” means having actual or constructive possession of an object with knowledge of its presence.A person has actual possession if such person has the object on his or her person or within easy reach and convenient control.A person has constructive possession if such person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons.Possession may also be sole or joint.If one person alone has possession of an object, possession is sole.If two or more persons share possession of an object, possession is joint.

(Bold emphasis added.)The instruction did not contain the required definition that explains how a person commits the crime of identity theft.

During deliberations, the jurors sent a note to the trial court containing the following question: “May we have a copy of the Revised Missouri Statutes defining Missouri law on trafficking and stolen identities?”The court's response was to “[p]lease be guided by the instructions and verdict forms the Court has already given you.”The jury found Defendant guilty.

Thereafter, Defendant filed a post-trial motion for judgment of acquittal and an alternative motion for new trial.The latter motion contained no allegation of instructional error.The trial court denied both motions and sentenced Defendant to 15 years imprisonment.This appeal followed.

Point I

In Defendant's first point, he contends the trial court erred by overruling Defendant's motion for judgment of acquittal at the close of the evidence.“In a jury-tried case, an appellate court reviews a trial court's ruling on a motion for judgment of acquittal to determine whether the State made a submissible case.”State v. Wood,301 S.W.3d 578, 580(Mo.App.2010).This requirement is satisfied if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.State v. Liberty,370 S.W.3d 537, 542–43(Mo. banc 2012);State v. Bateman,318 S.W.3d 681, 686–87(Mo. banc 2010).When reviewing a challenge to the sufficiency of the evidence, an appellate court does not weigh the evidence.State v. Crawford,68 S.W.3d 406, 408(Mo. banc 2002).The credibility and weight of testimony are for the jury to determine.Id.“The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case.”Id.On appellate review, we accept as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence.Liberty,370 S.W.3d at 543.All contrary evidence and inferences are disregarded.Id.In addition, “[t]he State may rely upon direct and circumstantial evidence to meet its burden of proof.”State v. Burks,373 S.W.3d 1, 3(Mo.App.2012).In our review, “circumstantial evidence is afforded the same weight as direct evidence.”State v. Stewart,265 S.W.3d 309, 314(Mo.App.2008).

The crime of trafficking in stolen identities is committed when a defendant“manufactures, sells, transfers, purchases, or possesses, with intent to sell or transfer means of identification as defined in subsection 2 of section 570.223, for the purpose of committing identity theft.”§ 570.224.1.“Identity theft” is a separate crime and is defined as follows: “A person commits the crime of identity theft if he or she knowingly and with the intent to deceive or defraud obtains, possesses, transfers, uses, or attempts to obtain, transfer or use, one or more means of identification not lawfully issued for his or her use.”§ 570.223.1;seeState v. Young,367 S.W.3d 641, 645(Mo.App.2012).

In the case at bar, the State's information alleged that Defendant violated § 570.224 because he: (1) possessed; (2) means of identification belonging to six different people; (3) with the intent to sell or transfer; (4) for the purpose of committing identity theft.With respect to the first element, “possessed” includes “actual or constructive possession of an object with knowledge of its presence.”§ 556.061(22).“A person has actual possession if such person has the object on his or her person or within easy reach and convenient control.”Id.With respect to the second element, the term “means of identification” includes checking account numbers, driver's license numbers, social security numbers, and “any other numbers or information that can be used to access a person's financial resources....”§ 570.223.2(10).With respect to the third element, “[p]ossession of five or more means of identification of the same person or possession of means of identification of five or more separate persons shall be evidence that the identities are possessed with intent to manufacture, sell, or transfer means of identification for the purpose of committing identity theft.”§ 570.224.2(bold emphasis added).With respect to the fourth element, the crime of identity theft is...