State v. Davidson

• Decision Date: 14 March 2017
• Docket Number: WD 79265
• Citation: 521 S.W.3d 637
• Parties: STATE of Missouri, Respondent, v. Tommy DAVIDSON, Appellant.
• Court: Missouri Court of Appeals

521 S.W.3d 637

STATE of Missouri, Respondent,

v.Tommy DAVIDSON, Appellant.

WD 79265

Missouri Court of Appeals, Western District.

Opinion filed: March 14, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2017

Application for Transfer Denied June 27, 2017

Colette E. Neuner, for Respondent.

Rosalyn Koch, for Appellant.

Before Division Three: Alok Ahuja, Presiding Judge, Victor C. Howard, Judge and James E. Welsh, Judge

VICTOR C. HOWARD, JUDGE

Tommy Davidson appeals his conviction and sentence following a jury trial for tampering in the first degree, section 569.080.¹ In his first point on appeal, Davidson claims the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support the conviction. In his second point on appeal, Davidson claims the trial court plainly erred in allowing the prosecutor's closing argument with respect to the definition of the word possess.

We reverse Davidson's conviction for tampering in the first degree and vacate the associated sentence.

Facts

On June 1, 2015, Cody Beall backed his truck out of his garage in Overland Park, Kansas, and got out of the truck to move his trash can. While Beall was still out of his truck, he saw a man jump into his truck. Beall tried to stop the man from taking his truck but was unsuccessful. A black sedan followed the truck as it sped away.

On June 22, 2015, law enforcement officer Sergeant Munson was dispatched to an emergency call in Lafayette County, Missouri, involving Beall's stolen truck. The driver of the truck attempted to flee from Sergeant Munson and ended up crashing into a ditch. The truck tires were spinning as though someone was trying to drive the truck out of the ditch. Sergeant Munson drew his service weapon and started giving commands toward the vehicle. The truck's windows were tinted too dark for Sergeant Munson to be able to see inside the vehicle.

Two men, one older and one younger, ran from behind the vehicle away from Sergeant Munson. The appellant in this case, Tommy Davidson, was the older man running from the stolen truck. The younger man was in the lead and jumped a fence and headed north while Davidson continued west. Sergeant Munson chased Davidson. Davidson refused to comply with Sergeant Munson's numerous commands for Davidson to get on the ground. Davidson stopped running and turned to face Sergeant Munson, and Sergeant Munson tased Davidson.

At the same time, Timothy Kelsey arrived home and backed into his garage. He heard sirens and squealing tires and saw the police car and stolen truck. He watched people get out of the stolen truck and heard Sergeant Munson yelling for the people to stop. The younger male ran though Kelsey's yard and disappeared. Then a woman ran past Kelsey, got into Kelsey's truck, and drove off in it. Kelsey tried to chase his stolen truck. As Sergeant Munson was kneeling on the ground handcuffing Davidson, Kelsey's stolen truck that was being driven by the woman hit Beall's stolen truck and almost hit Sergeant Munson and Davidson.

Deputy Gibson arrived to assist Sergeant Munson. Deputy Gibson transported Davidson to the hospital while Sergeant Munson remained to search for the younger man who had fled and to process Beall's stolen truck. The keys were still in the ignition. Both passenger side doors of the truck were open. A woman's purse was on the front floorboard. A man's wallet was on the back floorboard. Inside the driver's door panel was an inoperable 22 pistol revolver. Six license plates from both Missouri and Kansas were in the pouches on the back of the front seats. One of those license plates was listed as stolen.

The wallet contained two sets of identification, one for Davidson and one for a Jeremy Davidson. While in the patrol car on the way to the hospital, Davidson overheard radio traffic for Jeremy Davidson's identification. Davidson identified Jeremy as his son.

Davidson was charged in Lafayette County with first degree tampering, felony resisting arrest, leaving the scene of the accident, failing to obey a sheriff, and receiving stolen property. The last three counts were dismissed before trial.

Davidson did not testify at trial. He did, however, call Tara Cochran as a witness. Cochran is the woman who stole Kelsey's truck. She had pleaded guilty to multiple charges, including attempted robbery, tampering with a motor vehicle, tampering with physical evidence, resisting arrest, and leaving the scene of an accident. Cochran was sentenced to fifteen years for those crimes. Cochran had prior convictions for possession of controlled substances, aggravated burglary, and misdemeanor theft.

Cochran testified as follows: She "was on meth really bad" the day Davidson was arrested by Sergeant Munson. Jeremy picked her up in the stolen truck that day to help her move her belongings from the place she had been living. After picking her up, Jeremy then picked up Davidson. Jeremy was driving, Cochran was in the passenger seat, and Davidson was in the back seat behind Cochran. Neither Cochran nor Jeremy told Davidson that the truck was stolen. They picked up Cochran's belongings, and began driving on the highway. When the group became aware of police lights and sirens behind them, Jeremy took off. Davidson was quiet during the police chase. After they crashed, Cochran jumped out and stole Kelsey's truck. At no time did Davidson drive the stolen truck.

On cross-examination, Cochran testified as follows. In her charge for tampering in the first degree, she was acting in concert with Jeremy and Davidson for possessing the stolen truck. Jeremy and Davidson saw each other more than once a day, and Davidson would notice what type of vehicle Jeremy drove. Jeremy did not have a job, and it was pretty clear that the stolen truck did not belong to Jeremy.

In his motion for judgment of acquittal at the close of the State's evidence, Davidson argued that he was only a passenger in the stolen truck. He noted that his wallet was found in the back seat of the truck. Davidson claimed he was thus guilty of tampering in the second degree as opposed to tampering in the first degree. The court denied the motion.

In its closing argument, the State said that when acting in concert, "[a] person is responsible for his own conduct and the conduct of others" and that "[t]hey were possessing that stolen truck together." The State argued:

Folks, that is what we have. The word possessed is used in there. They possessed the vehicle. And I have the feeling that [the defense attorney] is going to get up here and argue that riding in a vehicle is not possessing it. I am possessing my spot at this table. I don't own it. I'm not going to carry it out of here. My name is not on it. But I am possessing my spot at the table. I'm using it. I'm sitting here. I'm possessing it.

[The prosecutor's assistant] is possessing this spot on the table. We are both possessing it. If I ask [the assistant] to scoot down a seat, then I can possess that part of the table. She could switch seats. She could sit here. We are both possessing it because we are using it; it's our exclusive use right here.

Just like when you are in a vehicle, it doesn't matter if you are driving or riding, when you are in that seat being transported from one place to another, your stuff is all over that truck, your wallet is found in the vehicle, you're possessing that vehicle. It doesn't matter if you are driving it.

And there is a definition in here that explains what possession is. Part of it is control, but there is more to it. A person has constructive possession if such person has the power and the intention at a given time to exercise dominion and control over the object, either directly or through another person or persons.

Folks, because of the way this vehicle crashed and the tinting on the windows, we don't know who was driving. Sergeant Munson can't tell you who was driving. He doesn't know who was sitting where. If you believe the defense witness, the Defendant was sitting in the back. But, it doesn't matter. The way it is charged, acting in concert, they acted together to possess that vehicle. That is exactly what happened. Because all three of them were acting together, it's acting in concert. It's constructive possession. He is guilty.

Davidson did not object to this closing argument.² He argued in his closing that there are two statutes: tampering in the first degree for possessing and tampering in the second degree for riding in a stolen vehicle. He claimed he never had control of the stolen truck because he was not driving it, that he panicked when the truck crashed while fleeing from police, and that he came to his senses and had turned around to face Sergeant Munson when he was tased.

The jury was given the following instructions:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about June 22, 2015, in the County of Lafayette, State of Missouri, the Defendant or [Jeremy] or [Cochran] knowingly possessed a certain gray Lincoln automobile owned by Cody Beall, and

Second, that the Defendant or [Jeremy] or [Cochran] possessed the automobile without the consent of the owner, and

Third, that the Defendant or [Jeremy] or [Cochran] possessed it, knowing that the Defendant or [Jeremy] or [Cochran] did so without the consent of the owner,

then you are instructed that the offense of Tampering in the First Degree has occurred...

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

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