State v. Downen

• Decision Date: 22 October 1999
• Citation: 3 S.W.3d 434
• Parties: (Mo.App. S.D. 1999) State of Missouri, Plaintiff-Respondent, v. Gary Earl Downen, Respondent-Appellant 22199
• Court: Missouri Court of Appeals

3 S.W.3d 434 (Mo.App. S.D. 1999)

State of Missouri, Plaintiff-Respondent, v. Gary Earl Downen, Respondent-Appellant

22199

Missouri Court of Appeals Southern District

10/22/99

Appeal From: Circuit Court of Christian County, Hon. James L. Eiffert, Judge

Counsel for Appellant: Thomas D. Carver and Dee Wampler

Counsel for Respondent: Shaun J. Mackleprang

Opinion Summary: None

Montgomery and Barney, JJ., concurs

Phillip R. Garrison, Chief Judge

Gary Earl Downen ("Defendant") was found guilty by the trial court of the class B felony of possession of a controlled substance with the intent to distribute or deliver in violation of section 195.211,¹ and received a sentence of five years. He contends on appeal that the trial court erred in allowing the State to endorse additional witnesses prior to trial, and in not sustaining his motion for judgment of acquittal. We affirm.

In a court-tried case the sufficiency of the evidence is determined by the same standard as in a jury-tried case and that is whether or not there was sufficient evidence from which the trier of fact could have reasonably found guilt. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). In determining whether or not there is evidence sufficient to support a finding of guilt, an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored. Id. Viewed in that manner, the evidence in this case was as follows:

Defendant permitted his friends, Ben and Kim Jeckle, to leave a safe, which contained marijuana, in the bedroom of his home. According to the evidence, Defendant provided some of the marijuana to his daughter for distribution and sale, and she returned the money from those transactions to him. On February 14, 1997, the safe, which contained seven pounds of marijuana, was taken from Defendant's bedroom by Matthew Shane ("Matthew") and Randy Hake, acquaintances of Defendant's daughter. Ben and Kim Jeckle apparently learned that Matthew might have been involved in the theft and at one point abducted him from a movie theater parking lot in an attempt to obtain a confession from him and a return of the marijuana. Matthew later admitted his involvement when confronted at Defendant's home by Kim and acquaintances of hers. He was told that he had to return the marijuana he had taken from the safe (3½ lbs.) or $4,000 by that night. Matthew informed his father of the situation and they contacted the Christian County Sheriff's office which, in turn, involved Trooper Tim Rousset ("Trooper Rousset"), of the Missouri Highway Patrol who was working as an undercover officer. Matthew called Kim Jeckle at Defendant's home from the Sheriff's Office, and he was told to deliver the money for the marijuana to Defendant's house. Trooper Rousset went to Defendant's home posing as Matthew's uncle and talked with Defendant who told him that Matthew had stolen the safe containing "money and some things which belonged to some friends of his" and that Matthew owed $3,000. Trooper Rousset next went to the business where both Ben Jeckle and Defendant were employed and spoke with Jeckle who told him that Matthew owed $6,000, and that if it was not paid both Matthew and Defendant would be in trouble. Trooper Rousset later returned to Jeckle's employment and attempted to deliver a bag containing marijuana but Jeckle agreed that he could deliver it to Defendant. On February 24, 1997, Trooper Rousset went to Defendant's residence and told Defendant that he and Matthew's father had searched Matthew's room and had found a pound of marijuana and $1,000, and that he was willing to give those to Defendant. Defendant went to the pickup that Trooper Rousset was driving and accepted an envelope containing $1,000. The marijuana was in a plastic bag which, in turn, was contained in a paper bag in the back of the pickup. Trooper Rousset slid the bag to Defendant who opened it, said there appeared to be a pound of marijuana in it, which would be worth $1,000, and said that together with the cash there was still $1,000 to be accounted for. According to Trooper Rousset, Defendant was very accurate in his judgment of the weight and value he placed on the marijuana, which was based on what it could be sold for. Trooper Rousset arrested Defendant as he held the bag containing the marijuana.

In his first point on appeal, Defendant contends that the trial court erred in not sustaining his objection to the State's late endorsement of witnesses and his request for a continuance, as well as his motion to strike the testimony of one of those witnesses. He argues that their testimony was a surprise and that he was unfairly prejudiced in that he was unable to prepare to rebut it.

A two count information was filed against Defendant on August 15, 1997, charging in one count that on February 24, 1997, he possessed a controlled substance, and in another count that he possessed it with the intent to distribute or deliver it. At that time the State endorsed three witnesses pursuant to Rule 23.01(f).² The case was set for trial on January 20, 1998, and on December 15, 1997, the State filed an amended endorsement of witnesses adding six additional witnesses. On January 9, 1998, the State filed a second amended endorsement of witnesses in which it added two more names to its witness list.

On January 20, 1998, prior to the commencement of trial, Defendant's attorney raised an issue about the amended witness lists. He informed the trial court that they had been filed but that no order had been entered allowing the amendments. He asked the trial court to rule on whether the amendments would be allowed, and if they were, he orally requested a continuance to investigate the additional witnesses listed. In doing so, he represented to the trial court that he received the latest amendment on January 12, 1998, eight days before trial.

In considering Defendant's request, the trial court asked the assistant prosecutor which of the witnesses she intended to actually call at trial. Of the six witnesses contained on the first amended list, she said that she intended to call two of them, and the other four she would "most likely not" call, but that she wanted to have the option of doing so depending on what developed during the trial. The trial court then established from Defendant's counsel that there had been discovery in the case, and that documents produced to the defense contained the names of all of the witnesses on the amended lists. The trial court allowed the State to endorse the witnesses contained in both amended lists and denied Defendant's request for a continuance. Defendant then waived a jury trial, and the case went to trial before the trial court the next day. During the trial, the State called four of the six witnesses listed on the first amended list and one of the two contained in the second amendment.

A trial court has broad discretion in permitting the late endorsement of witnesses. State v. Sweet, 796 S.W.2d 607, 613 (Mo. banc 1990). A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Brown, 939 S.W.2d 882, 883-84 (Mo.banc 1997).

In considering whether a trial court abused its discretion in permitting the endorsement of additional witnesses, an appellate court will consider the following factors: (1) whether the defendant waived the objection; (2) whether the State intended to surprise the defendant or acted deceptively or in bad faith intending to disadvantage the defendant; (3) whether the defendant was, in fact, surprised and suffered disadvantage; and (4) whether the type of testimony given might have been readily contemplated by the defendant. State v. Thomas, 965 S.W.2d 396, 399 (Mo. App. S.D. 1998). The main consideration is whether the late disclosure resulted in fundamental unfairness or prejudice to substantial rights of the defendant. Id. Absent an abuse of discretion or prejudice to the defendant, a conviction should not be overturned because of the late endorsement of witnesses. State v. Stamps, 865 S.W.2d 393, 397 (Mo. App. E.D. 1993). In this case, Defendant is not entitled to a reversal because of the endorsement of the witnesses in question. While Defendant objected to the endorsement the day before trial, he did not object to the testimony of any of the newly endorsed witnesses when they were called to testify. The proper time to object to a witness testifying is when he or she is offered as a witness. Id. at 398. There is no indication that the State intended to surprise or disadvantage Defendant. Additionally, it is apparent that the testimony of the additional witnesses could have been readily foreseen by Defendant, and he does not demonstrate how he was actually surprised or disadvantaged. All of the witnesses in question were identified in the police report and documents disclosed to Defendant in discovery; four of those witnesses who testified, and about which Defendant objects, were identified to him as potential witnesses over one month...