State v. Carson, No. 79120

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBENTON; HOLSTEIN; LIMBAUGH; PRICE, J., concurs in opinion of LIMBAUGH; LIMBAUGH
Citation941 S.W.2d 518
Decision Date25 March 1997
Docket NumberNo. 79120
PartiesSTATE of Missouri, Respondent, v. Maurice CARSON, Appellant.

Page 518

941 S.W.2d 518
STATE of Missouri, Respondent,
v.
Maurice CARSON, Appellant.
No. 79120.
Supreme Court of Missouri,
En Banc.
March 25, 1997.

Page 519

Rose Wibbenmeyer, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Assistant Attorney General, Jefferson City, for Respondent.

BENTON, Judge.

Following a jury trial, Maurice Carson was convicted of second degree trafficking and sentenced to ten years' imprisonment. § 195.223.2(2); § 558.011.1 1 The Court of Appeals would have reversed Carson's conviction and ordered his discharge due to an improper jury instruction patterned after MAI-CR3d 325.16. 2 This Court granted transfer because the opinion filed was contrary to other appellate decisions and involved a question of general interest and importance. Mo. Const. art. V, § 10; Rule 83.03. Judgment reversed and case remanded.

I.

On June 9, 1994, two plainclothes police officers were at the Springfield bus station in order to intercept drugs passing through the city. The officers boarded a bus from California to speak with the passengers. The two identified themselves as narcotics officers to Carson and explained that he was not under arrest and was free to leave. Carson agreed to speak with the officers and voluntarily allowed an officer to search his duffel bag. The search revealed two packages believed to be a controlled substance. Carson denied ownership of the packages and stated that someone must have planted them in his bag. After arresting Carson, an officer

Page 520

opened the packages, revealing a white powder later determined to be cocaine.

At trial the state submitted two theories of second degree trafficking, and the court accordingly provided the jury with two separate verdict directors. Instruction No. 6 required "knowledge of the presence and illegal nature of the controlled substance." MAI-CR3d 325.14 (emphasis added). Instruction No. 8 required that "appellant knew or consciously disregarded a substantial and unjustifiable risk that the mixture or substance he brought into the state contained cocaine salts, a controlled substance." MAI-CR3d 325.16 (emphasis added). The jury found Carson guilty of second degree trafficking under Instruction No. 8.

II.

The State's application for transfer centered on the proposition that the Court of Appeals has no authority to find erroneous MAI-CR3d 325.16 and its accompanying Notes on Use because they were adopted by this Court.

In fact, this Court has held that MAI-CR and its Notes on Use are "not binding" to the extent they conflict with the substantive law. State v. Anding, 752 S.W.2d 59, 61 (Mo. banc 1988). "Procedural rules adopted by MAI cannot change the substantive law and must therefore be interpreted in the light of existing statutory and case law." Id., citing Mo. Const. art. V, § 5; State v. Dixon, 655 S.W.2d 547, 558 (Mo.App.1983), cert. denied 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). As the introductory comments to MAI-CR3d specifically provide:

The Court has adopted these proposals without judicially deciding or foreclosing any legal, constitutional, procedural, instructional, or other issues which may arise in cases even though the procedures, instructions, and Notes on Use adopted by the Court are followed and used.

MAI-CR3d "How to Use This Book-Reservations" pp. ii-iii (1987).

If an instruction following MAI-CR3d conflicts with the substantive law, any court should decline to follow MAI-CR3d or its Notes on Use. See State v. Moss, 789 S.W.2d 512, 518 (Mo.App.1990); State v. Fowler, 762 S.W.2d 540, 541 (Mo.App.1988)(Grimm, J., concurring); State v. Franklin, 752 S.W.2d 937, 942 (Mo.App.1988)(Grimm, J., concurring); State v. Pendergrass, 726 S.W.2d 831, 834 (Mo.App.1987); State v. Brooks, 721 S.W.2d 8, 9 (Mo.App.1986)(Dixon, J., dissenting); State v. Singer, 719 S.W.2d 818, 823-24 (Mo.App.1986)(Dixon, J., dissenting). To the extent holding otherwise, the cases listed in the appendix are overruled.

III.

Carson contends that the trial court committed prejudicial error as a matter of law because Instruction No. 8 did not require the jury to find that he knowingly brought cocaine into Missouri. The State contends that the "brings into this state" version of the crime in § 195.223.2 has no culpable mental state. In a recent case, this Court considered whether the offense there--class A felony, distributing cocaine near public housing under § 195.218--dispensed with a culpable mental state. State v. Hatton, 918 S.W.2d 790, 794 (Mo. banc 1996). This Court held that § 195.218 has a culpable mental state. Id. at 794 n. 1. Equally, § 195.223.2--class A felony, trafficking in the second degree--must have a mental state. See State v. Hill, 929 S.W.2d 258, 260, (Mo.App.1996); State v. Baker, 912 S.W.2d 541, 544 (Mo.App.1995); State v. LaFlamme, 869 S.W.2d 183, 186 (Mo.App.1993). The remaining issue is the specific culpable mental state for "brings into this state" trafficking in the second degree.

A.

In 1989, the General Assembly passed the "Comprehensive Drug Control Act of 1989." § 195.005, S.B. 215 & 58, 1989 Mo. Laws 600. The Act was truly comprehensive, rewriting almost all of Chapter 195. Id. Prior to enactment of the Comprehensive Drug Control Act, one subsection of law addressed cocaine possession, making it illegal for a person to "possess, have under his control..." this controlled substance. § 195.020.1 RSMo 1986 (repealed). Although the subsection had no express culpable mental state, this Court interpreted the statute to require knowledge or

Page 521

conscious possession. See State v. Barber, 635 S.W.2d 342, 343 (Mo. banc 1982); State v. Hayes, 563 S.W.2d 11, 13 (Mo. banc 1978); State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975); State v. Burns, 457 S.W.2d 721, 725 (Mo.1970).

The Comprehensive Drug Control Act replaced this one subsection on possession with two provisions, § 195.202 and § 195.223. Section 195.202 makes it illegal for a person to "possess or have under his control" any amount of a controlled substance. § 195.202.1. Section 195.223 creates a second crime--"trafficking in the second degree"--if the amount exceeds certain quantities that vary by drug. Section 195.223.2 provides:

A person commits the crime of trafficking drugs in the second degree if ... he possesses or has under his control, purchases or attempts to purchase, or brings into this state more than one hundred fifty grams of a mixture or substance containing a detectable amount of ... cocaine salts....

§ 195.223.2. "Trafficking in the second degree" can be committed in five ways: (1) "possesses," (2) "has under his control," (3) "purchases," (4) "attempts to purchase," or (5) "brings into this state." § 195.223.2. Carson was charged, in one count, with committing trafficking in the second degree in three ways: (1) possessing, (2) having under control, or (3) bringing into this state. Carson was convicted, under Instruction No. 8, of bringing cocaine into this state.

B.

"Possessed" or "possessing a controlled substance" is very broadly defined in the Comprehensive Drug Control Act:

a person, with the knowledge of the presence and illegal nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession may also be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint;

§ 195.010(33). This definition of possession includes "actual" and "constructive" possession, and has the word "control" as a key to both types of possession. Id. The act of "possessing" or "possessed" clearly has many common elements with "has under his control." State v. Virdure, 371 S.W.2d 196, 199 (Mo.1963); State v. Carouthers, 714 S.W.2d 867, 870-71 (Mo.App.1986). The legislature did not intend that each of the five ways be exclusive of the others in § 195.223.2.

The legislature, however, did not define the phrase "brings into this state." Courts therefore consider the words used in a statute in their plain and ordinary meaning, which is found in the dictionary. City of Dellwood v. Twyford, 912 S.W.2d 58, 60 (Mo. banc 1995). The term "bring" means:

to convey, lead, carry, or cause to come along from one place to another, the direction of movement being toward the place from which the action is being regarded; ... to take or carry along with one; ....

Webster's Third New International Dictionary 278 (1976). The legislature's broad definition of "possess" in § 195.010(33) includes most acts of "brings into this state."

Specifically, as applied in this case, "brings into this state" overlaps with "possesses" and "has under his control." Defendant Carson was charged, in one count, with committing trafficking in the second degree three ways: (1) possessing, (2) having under control, or (3) bringing into this state. Based on the evidence at this trial, Carson simply could not have brought drugs into this state without actual or constructive possession of the drugs (as defined in § 195.010(33)). The dissent proposes a different culpable mental state for versions of the same crime, which have the same penalty, are charged in the same count, and rely on the same evidence. The more logical analysis of trafficking in the second degree is to conclude that overlapping versions of the same crime have the same culpable mental state--knowledge.

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This conclusion is supported by the fact that trafficking under § 195.223.2 has a lesser offense of possession under § 195.202. See State v. Smith, 825 S.W.2d 388, 391...

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