State v. Dodd
| Decision Date | 07 December 1999 |
| Citation | 10 S.W.3d 546 |
| Parties | (Mo.App. W.D. 1999) State of Missouri, Respondent, v. Roger K. Dodd, Appellant. WD56782 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Miller County, Hon. Mary Platter Dickerson
Opinion Summary: Roger Dodd appeals his conviction for sale of a controlled substance.
Division II holds: (1) Where Dodd was present before, during, and after the drug transaction and facilitated the sale by asking his companion if she had the drugs that the undercover officer wanted to purchase and by confirming for his companion and the officer the quantity of the drugs, sufficient evidence was presented to show Dodd's affirmative participation in the crime and to support his conviction for sale of a controlled substance.
(2) The trial court merely clarified a juror's confusion about whether the verdict was based on Dodd having sold drugs as a principal or as an accomplice and whether a principal and an accomplice can be charged with and convicted of the same crime. The court did not coerce the juror to change his vote. The court did not err in failing to declare a mistrial.
(3) Where the jury deliberated in this case for two hours and forty-seven minutes before the instruction was given and approximately one-half hour after instruction, where the information regarding the jury's split was unsolicited and voluntarily given to the court, and where the time the instruction was given can be reasonably inferred from the record, the trial court did not err in submitting the hammer instruction.
(4) Dodd's motion for continuance was procedurally deficient. It was unaccompanied by an affidavit, and it did not allege that the informants' attendance or testimony would be procured within a reasonable time, the particular facts the confidential informants' testimony would prove, or that the witnesses' testimony would have resulted in a different outcome. The trial court did not err in overruling Dodd's motion for continuance.
(5) Where Dodd failed to set forth in his point relied on the specific ruling that is being challenged and wherein and why it is claimed to be erroneous, and where he failed to make an offer of proof of the evidence he claims the court erroneously excluded, his assertion that the trial court erred in refusing to allow him to cross-examine an officer has no merit.
(6) Where the terms "aided or encouraged" are words of ordinary usage and easy understanding and entail some affirmative act or assistance or support, the terms did not require definition in the instruction and the instruction required the jury to find something more that Dodd's mere presence to convict him of selling a controlled substance. The trial court did not err in submitting Instruction Number 5, the verdict director.
Roger Dodd appeals his conviction for sale of a controlled substance, section 195.211, RSMo Cum. Supp. 1998, and sentence of five years imprisonment. He claims that the trial court erred in (1) overruling his motion for acquittal because insufficient evidence was presented to prove that he was an accomplice to the sale of a controlled substance; (2) failing to declare a mistrial because the verdict resulted from judicial coercion of a juror; (3) submitting the hammer instruction because the giving of the instruction coerced the jury into returning a guilty verdict; (4) overruling his motion for continuance; (5) refusing to allow him to crossexamine the undercover officer regarding the confidential informants' motive to entrap him; and (6) submitting Instruction Number 5, the verdict director.
The judgment of conviction is affirmed.
In February 1997, Phillip Lewis and Francis Baughman lived in Manor Brook Apartments in Eldon, Missouri, and were confidential informants for the Lake Area Narcotics task force. At approximately 6:00 p.m. on February 5, 1997, Mr. Lewis and undercover drug enforcement officer Jeffrey Collins drove to Mr. Lewis's apartment. When they arrived, Roger Dodd's car was parked in front of the apartment building.
Officer Collins and Mr. Lewis entered the apartment and met Ms. Baughman, Mr. Dodd, and Mr. Dodd's girlfriend, Betty Cates. Ms. Baughman asked Officer Collins if he was still interested in buying one gram of methamphetamine. He indicated that he was, and Ms. Baughman then asked Mr. Dodd, "Do you have that gram?" In response, Mr. Dodd looked at Ms. Cates and asked, "Do you have that?" Ms. Cates pulled a small coin purse from her purse. From the coin purse, Ms. Cates removed two small clear plastic "corner bags."1 Ms. Cates asked Mr. Dodd if the two bags were both half-gram bags, and he responded, "Yeah." Ms. Cates dropped the bags on the bed in front of Officer Collins. The officer paid Ms. Cates $100 and left the apartment. Subsequent testing revealed that the two baggies contained .76 grams of methamphetamine.
Mr. Dodd was charged by information with one count of sale of a controlled substance near public housing, section 195.218, RSMo 1994. He was convicted of the lesser-included offense, sale of a controlled substance, section 195.211, RSMo Cum. Supp. 1998, and sentenced to five years imprisonment. This appeal followed.
In his first point on appeal, Mr. Dodd claims that the trial court erred in overruling his motion for judgment of acquittal. He contends that the evidence presented was insufficient to support his conviction for sale of a controlled substance, section 195.211, RSMo Cum. Supp. 1998. Specifically, he claims that insufficient evidence was presented that he actively participated in Ms. Cates's sale of methamphetamine to Officer Collins.
Review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997), cert. denied, 118 S.Ct. 377 (1997). The evidence and all reasonable inferences drawn from the evidence are viewed in the light most favorable to the jury's verdict, and any contrary evidence and inferences are disregarded. Id.
Section 195.211.1 provides that it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance. Section 195.211.1, RSMo Cum. Supp. 1998. Under the theory of aiding and abetting, a person is criminally responsible for the conduct of another if, with the purpose of promoting the commission of an offense, he aids, agrees to aid, or attempts to aid the other person in planning, committing, or attempting to commit the offense. Section 562.041.1(2), RSMo 1994; Bass v. State, 950 S.W.2d 940, 942 (Mo. App. W.D. 1997). "[A]iders and abettors who act with a 'common purpose with active participants in a crime incur criminal liability by any form of affirmative advancement of the enterprise." State v. Ruddy, 874 S.W.2d 517, 519 (Mo. App. W.D. 1994)(quoting State v. LaRue, 811 S.W.2d 40, 44-45 (Mo. App. S.D. 1991)). While the defendant's presence at the crime scene alone is not enough to support a conviction, proof of any form of participation by the defendant in the crime is. State v. Burch, 939 S.W.2d 525, 529 (Mo. App. W.D. 1997); State v. Perez, 826 S.W.2d 61, 63 (Mo. App. W.D. 1992). Indicia of aiding and abetting include presence at the crime scene and association with others involved with the offense before, during, and after the commission of the crime. Id.; Ruddy, 874 S.W.2d at 519.
Mr. Dodd asserts on appeal that the evidence presented at trial demonstrated only his presence at the drug deal and no active participation by him in the transaction. The evidence in this case revealed, however, that although Mr. Dodd did not handle the drugs or the money, he actively participated in the drug deal. After learning that Officer Collins was interested in purchasing one gram of methamphetamine, the confidential informant asked Mr. Dodd, "Do you have that gram?" In response, Mr. Dodd looked at Ms. Cates and asked, "Do you have that?" Ms. Cates pulled a small coin purse from her purse. From the coin purse, Ms. Cates removed two small clear plastic corner bags. Ms. Cates asked Mr. Dodd if the two bags were both half-gram bags, and he responded, "Yeah." Not only was Mr. Dodd present before, during, and after the transaction, he facilitated the sale. The evidence showed that Mr. Dodd was aware that his companion, Ms. Cates, possessed methamphetamine, and that he knew the quantity of the drugs that she possessed. Mr. Dodd facilitated the deal by asking Ms. Cates if she had the drugs that Officer Collins wanted to purchase and by confirming for Ms. Cates and Officer Collins the quantity of the drugs. Such evidence was sufficient to show Mr. Dodd's affirmative participation in the crime, sale of a controlled substance, and to support his conviction. Point one is denied.
In his second point on appeal, Mr. Dodd claims that the trial court erred in failing to grant a mistrial because the verdict resulted from judicial coercion of a juror. After the jury's guilty verdict was read, the court asked if either party desired that the jury be polled. Defense counsel requested a polling. The following colloquy occurred:
The court asked each of the remaining jurors, including Juror Number 10, the same question asked of Jurors...
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