State v. Cline, No. 73162

• Decision Date: 03 May 1991
• Docket Number: No. 73162
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Herbert CLINE, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 822

808 S.W.2d 822

STATE of Missouri, Plaintiff-Respondent, v. Herbert CLINE, Defendant-Appellant.

No. 73162.

Supreme Court of Missouri,

En Banc.

May 3, 1991.

William E. Erdrich, St. Joseph, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Judge.

Herbert Cline was convicted by a jury of possessing methamphetamine, section 195.202, RSMo 1986. The jury assessed his punishment at imprisonment for five years; judgment was entered accordingly; the Court of Appeals, Western District, affirmed the judgment. This Court granted transfer to consider whether the trial court erred in giving Instruction 5, the verdict-directing instruction. Because of the stated error, the judgment must be reversed and the cause remanded for new trial.

I.

Preliminary to consideration of the instruction question is the need to address appellant's attack on the sufficiency of evidence to sustain his conviction. Appellant asserts there was no evidence to show: that defendant was ever in possession of any substance; that he had exclusive control or dominion over the area where the substance was found; that he was ever aware of the substance; that he had been on the premises that day, week or month. These assertions are considered to include also a challenge with respect to evidence of awareness of the nature of the substance in question. See State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

In a review of whether sufficient evidence existed from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt, this Court accepts as true all the evidence favorable to the verdict, including all favorable inferences properly drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). So tested, the evidence refutes appellant's contentions and shows the State made a submissible case. The court did not err in refusing to direct the acquittal requested by defendant.

The information charged that the offense occurred on March 3, 1989, in DeKalb County. The trial took place in September 1989.

Jamie Healy, age 16, lived until March 3, 1989, with her mother Elizabeth Healy, her sisters Kim, 15, and Linda, 14, and the defendant, whom she described as "Mom's boyfriend." They lived in a house in rural DeKalb County and had lived there since 1979. There were no other occupants. Her mother and defendant slept in "the big bedroom," Jamie slept in a "bedroom down the hall," and her sisters slept in another bedroom. Jamie on occasion would go into the big bedroom "to put clothes in and just to see what was in there. I helped with the washing and drying. When [defendant's] clothes were washed and dried, I put them away for him."

In the big bedroom was a tall dresser with several drawers. On March 2, 1989, Jamie went into the big bedroom and looked in a drawer of the dresser. She did not take anything out. In the drawer "was a plastic bag which had some rock stuff in it and white powder stuff with a stringer and a plastic bag." She did not look in other drawers. Jamie did not know how the items she described got into the drawer. Sitting on top of the dresser "was some little brown bottles that was like in a candle holder or styrofoam cup." Jamie acknowledged that her mother used the dresser and had some clothes in there, "but not in the same drawer that the stuff was in.... The drawer that the stuff was in was Herbie's drawer." Jamie used the big bedroom "just to go to the bathroom."

After seeing "these items," Jamie told a friend, and the friend's mother took Jamie to the courthouse where she gave the prosecutor a written statement. Jamie also stated that defendant's work schedule was from 3:30 p.m. to 11:00 p.m. and that defendant was present when Jamie left the house about 7:30 a.m. on March 3.

Sheriff McFee, at 3:30 p.m. on March 3, executed a search warrant at the Healy residence; Trooper Kimberling assisted. Defendant was not present. The sheriff searched the dresser mentioned in Jamie's testimony. In the "drawers" he found some men's clothing, socks and underwear. He also seized some items, which he turned over to Trooper Kimberling who placed them in evidence bags. Most of the items seized were in the upper part of the dresser. Trooper Kimberling also looked in the drawers of the dresser. The general contents of the dresser were men's clothing. On top of the dresser was a clear vial, State's Exhibit 2, which was removed from a styrofoam cup. State's Exhibit 3 was a "small piece of slick paper that's folded, [it] contained a white powdery substance.... This came out of one of the drawers in [the dresser]." The other items in that drawer "was mostly socks, men's socks." Kimberling delivered the exhibits to chemist Gerhardt. There were no women's clothes in the dresser.

Chemist Gerhardt found that State's Exhibit 2, the clear glass vial, contained methamphetamine and that State's Exhibit 3 contained powder which contained methamphetamine.

The foregoing evidence entitled the jury to find that State's Exhibit 3 was in a dresser drawer used exclusively by defendant and that defendant had been present in the house just a few hours before the officers' discovery of Exhibit 2 and Exhibit 3. Contrary to defendant's contentions, there was evidence that defendant was in possession of methamphetamine and had exclusive control over the area, the drawer, in which State's Exhibit 3 was found. In particular, the presence of the methamphetamine, concealed in a styrofoam cup and among the defendant's garments alongside such paraphernalia as a vial, a candle holder, and folded slick paper, on top of the dresser and in the drawer allocated to the defendant, who had been on the premises the morning of the search and had lived there for over 10 years, also entitled the jury to find the defendant was aware of the nature of the methamphetamine in question. State v. Lockhart, 501 S.W.2d 163 (Mo.1973); Barber, 635 S.W.2d 342; State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977); State v. Pacchetti, 729 S.W.2d 621 (Mo.App.1987).

II. ¹

Appellant contends the trial court committed plain error (Rule 30.20) in giving Instruction 5 for the reason that the instruction misdirected the jury as to the range of punishment in that it overstated the maximum term of imprisonment.

Instruction 5 read, in pertinent part:

"If you do find the defendant guilty of possessing methamphetamine, you will assess and declare one of the following punishments:

1. Imprisonment for a term of years fixed by you, but not more than twenty years...."

In 1989, after the date of the alleged offense but prior to the jury trial, the maximum term of imprisonment was reduced to seven years. § 195.202.2, RSMo (Supp.1990); §§ 558.011.1(3) and 1.160(2), RSMo 1986. The State's brief concedes that "under the new statute [§ 195.202], defendant could be sentenced to a term not to exceed seven years." During final argument to the jury, the prosecutor twice emphasized the 20-year limit provided in Instruction 5.

For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury as to cause manifest injustice or miscarriage of justice. Defendant bears the burden of establishing manifest injustice. State v. Parkus, 753 S.W.2d 881, 888 (Mo. banc 1988). The determination whether plain error exists must be based on a consideration of the facts and circumstances of each case. State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976). For the reasons to follow, the overstatement of the maximum term of imprisonment in Instruction 5 in this case was plain error requiring a new trial.

This Court on several occasions has been confronted with the problem of an instruction that misstated or insufficiently stated the range of permissible punishment. Such error was held to be reversible in State v. Sands, 77 Mo. 118 (1882); State v. McNally, 87 Mo. 644 (1885); State v. Milligan, 170 Mo. 215, 70 S.W. 473 (1902); State v. Fair, 177 S.W. 355 (Mo.1915); State v. Britton, 183 S.W. 295 (Mo.1916); State v. Duddrear, 309 Mo. 1, 274 S.W. 360 (1925); State v. Hurt, 285 S.W. 976 (Mo.1926); State v. Liston, 318 Mo. 1222, 2 S.W.2d 780, 784 (1928); State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432 (1931); and State v. Harper, 353 Mo. 821, 184 S.W.2d 601 (1945).

In Sands, the instruction overstated the maximum fine and failed to state the minimum term of imprisonment. In McNally, the instruction overstated the minimum term of imprisonment. In Milligan, the instruction overstated the minimum and the maximum terms of imprisonment. In Britton, the instruction overstated the minimum term of imprisonment. In Duddrear, the instruction failed to state the maximum term of imprisonment. In Bevins, the instruction told the jury that a permissible punishment was imprisonment in the penitentiary for a term not exceeding 2 years but failed to state that 2 years was the least imprisonment in the penitentiary that could be assessed. In Fair, Hurt, Liston and Harper, the instruction overstated the minimum punishment.

In Sands, McNally, Milligan, Fair, Britton, Hurt, Liston, and Harper, the punishment assessed by the jury was within the statutory limits, but that did not insulate the case from reversible error.

Instruction error with respect to range of punishment was nonprejudicial and the convictions were affirmed in State v. Burr, 81 Mo. 108 (1883); State v. Tull, 119 Mo. 421, 24 S.W. 1010 (1894); State v. Miller, 292 S.W. 440 (Mo.1927); State v. Watson, 92 S.W.2d 103 (Mo.1936); and State v. Rollins, 449 S.W.2d 585 (Mo.1970).

In Burr, there was no prejudice to defendant because the jury assessed a $5 fine, the statutory minimum punishment. In Tull, the jury assessed punishment at 5 years, but the trial court reduced it to the statutory minimum of 2 years. In Miller, where the motion for new trial...