State v. Bigsby

• Decision Date: 17 January 1995
• Docket Number: No. 19324,19324
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Baker E. BIGSBY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 160

891 S.W.2d 160

STATE of Missouri, Plaintiff-Respondent, v. Baker E. BIGSBY, Defendant-Appellant.

No. 19324.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 17, 1995.

Donald R. Cooley, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michelle A. Freund, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Judge.

Baker E. Bigsby (defendant) appeals a conviction of trafficking drugs in the second degree. § 195.223.7, RSMo Supp.1989. Defendant contends his conviction should be reversed because evidence used at trial was obtained by means of an illegal search; because the state destroyed evidence that would have been exculpatory and corroborative of his defense; and because the evidence adduced at trial was insufficient to prove the offense charged. This court affirms.

Defendant was tried by the court without a jury. When a defendant waives trial by jury, the trial court's findings have the force and effect of a jury verdict. State v. Marshell, 825 S.W.2d 341, 342 (Mo.App.1992); Rule 27.01(b). "[A]ppellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed." State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). In its review the appellate court accepts as true the evidence that tends to prove the defendant's guilt and all inferences favorable to the state. Contrary evidence and inferences are disregarded. Id.

Trooper Michael Woods, a Missouri Highway Patrol officer, observed defendant driving a Ford pickup truck east on Interstate Highway No. 44 in Greene County. Trooper Woods' radar registered the vehicle's speed at 64 miles per hour. The speed limit at that location was 55. Defendant was the only occupant in the vehicle.

Trooper Woods stopped defendant's vehicle. It had Texas license plates, but defendant's driver's license was from the state of California. Defendant told Trooper Woods that the pickup belonged to a friend. He presented a copy of the vehicle registration; however, the registration was not in the friend's name. The vehicle was registered to Othon Latha from El Paso, Texas.

Defendant accompanied Trooper Woods to the officer's patrol car. Trooper Woods wanted to "get the ownership of [the] vehicle straightened out before Mr. Bigsby left." He thought it possible that the vehicle had been stolen. He explained:

After--after going through all the information that I've just testified to, I told Mr. Bigsby that I was suspicious of his trip and then I asked him for permission to search his vehicle.

Defendant told Trooper Woods that he believed the trooper had the right to search the pickup. Trooper Woods explained that he was not saying he had the right to search the pickup; he was asking permission to search it. Defendant replied, "Yeah. I don't care. Go ahead."

Trooper Woods found a paper sack inside the passenger compartment of the pickup. It had been torn open and contained a small amount of marijuana. A jacket belonging to defendant was on the passenger seat of the pickup. There were three hand-rolled marijuana cigarettes and a package of cigarette papers in one of the jacket pockets. There was a patent medicine bottle in the pickup that contained marijuana. An airplane boarding pass issued in defendant's name and $588 were also found. The boarding pass was issued to defendant.

After Trooper Woods searched the passenger compartment, he looked underneath the pickup truck. He observed that the gas tank had been lowered. He then looked into the stake holes in the top of the pickup bed. While looking in one of the stake holes, he smelled marijuana. Further examination disclosed a false floor beneath the bed of the pickup. The compartment between the two floors contained 275 pounds of marijuana.

Defendant contends the evidence was not sufficient to support his conviction. He contends the evidence failed to establish, beyond a reasonable doubt, that he knew marijuana was stored in the hidden compartment below the bed of the pickup he was driving.

Defendant concedes that knowledge of the presence of a controlled substance may be proved by circumstantial evidence. See State v. Villa-Perez, 835 S.W.2d 897, 900 (Mo. banc 1992). However, he argues that the state bears a greater burden of proof in cases in which it relies on circumstantial evidence. He cites Villa-Perez for that proposition. ¹

At the time Villa-Perez was decided, Missouri courts viewed circumstantial evidence cases differently than direct evidence cases. Circumstantial evidence cases required a higher standard of proof than direct evidence cases. This changed, however, with the Supreme Court's decision in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993).

In Grim the court held that the burden of proof, whether based on direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence, is satisfied when guilt is proved beyond a reasonable doubt "so long as the evidence meets the minimal appellate standard required by due process." Id. at 406. The minimal appellate standard is met when a conviction is supported by enough evidence that a reasonable fact finder, taking all evidence in the light most favorable to the state, would be convinced beyond a reasonable doubt. Id.

Defendant testified that he told an acquaintance in Texas that he was moving across town--from one location in the Los Angeles, California, area to another location in that area; that he would like to have a truck "to make the move easy." According to defendant, the acquaintance, Bernie Johnson, told him he was moving from Texas to California; that he had a new pickup truck that he needed to have taken to California. However, the pickup was in New Mexico. Defendant testified that his friend offered to let him use the pickup if he would drive it to California.

Defendant flew to Albuquerque, New Mexico. He testified that he had business to conduct in Texas; that he planned to conduct his business there and then drive the pickup to California. He testified, however, that when he got the pickup he decided to go to Missouri to see his grandmother-in-law and mother-in-law in Creve Coeur and his mother in Hannibal. He claimed he was en route to those locations when he was arrested in Greene County.

Defendant was charged with committing the offense of trafficking drugs in the second degree by having knowingly possessed more that one hundred kilograms of marijuana. The "knowing possession" element of a drug offense may be satisfied if a defendant has been in possession of the vehicle in which the controlled substance is found for a period of time before its discovery and others have not had access to the vehicle. State v. Villa-Perez, supra, at 901; State v. Allen, 744 S.W.2d 865, 868 (Mo.App.1988).

Defendant had exclusive possession of the pickup for 24 hours immediately preceding his arrest. He claimed he intended to take the pickup to California. However, when he was stopped, he was not on a direct route between Albuquerque and Los Angeles nor on a direct route between Albuquerque and the location where he professed to have business to conduct. The pickup was not registered in defendant's name nor in the name of the friend who defendant claimed provided the vehicle for his use.

As to defendant's testimony that he was not aware of the modification of the vehicle to accommodate hiding the marijuana or its presence, the trial court was not bound to believe his explanation. State v. Villa-Perez, supra. This court, in its review of defendant's conviction, defers to the trial court's superior opportunity to determine credibility. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986).

The evidence was sufficient to support the trial court's finding, beyond a reasonable doubt, that defendant committed the offense of trafficking in drugs in the second degree.

Defendant also contends the trial court erred in overruling his motion to suppress evidence. The motion was directed to the search of the pickup defendant was driving. Defendant claims the search was illegal in three respects. He argues the search was the product of an illegal arrest that "vitiated any alleged consent"; that if defendant was not illegally detained, the alleged consent was involuntarily given; that in the event the consent to search is upheld, "the search exceeded the scope of the consent and the object of the search."

This court's review of a ruling on a motion to suppress evidence is based on the evidence that was before the trial court. The question for resolve is whether that evidence was sufficient to sustain the trial court's finding. State v. Villa-Perez, supra, at 902. In reviewing a motion to suppress evidence, an appellate court must consider all circumstances of the case. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). The trial court's ruling will be upheld if it is plausible on the basis of the record in its entirety. Id. at 184. It will be reversed only if it is clearly erroneous. Id.

Defendant contends that his presence in the arresting officer's patrol car constituted an illegal arrest. An arrest occurs when surrounding circumstances are such that a reasonable person would believe he or she is not free to leave; when his or her person is seized by law enforcement authorities. U.S. v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980). "An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991).

Defendant argues that the circumstances in this case are similar to those in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). In Royer the court held that circumstances that produced a consent to a search of luggage amounted to "confinement" of a suspect; that the confinement tainted the consent so...