State v. Evans

• Decision Date: 01 October 2013
• Docket Number: No. WD 75621.,WD 75621.
• Citation: 410 S.W.3d 258
• Parties: STATE of Missouri, Respondent, v. Randall G. EVANS, Appellant.
• Court: Missouri Court of Appeals

410 S.W.3d 258

STATE of Missouri, Respondent,

v.Randall G. EVANS, Appellant.

No. WD 75621.

Missouri Court of Appeals, Western District.

Aug. 27, 2013. Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 2013.

Chris Koster, Attorney General, Jessica P. Meredith, Assistant Attorney General, Jefferson City, MO, for Respondent.

Janet Wake Larison, Grant City, MO, for Appellant.

Before Division Two: THOMAS H. NEWTON, Presiding Judge, and KAREN KING MITCHELL and GARY D. WITT, Judges.

KAREN KING MITCHELL, Judge.

Randall Gene Evans appeals, following a jury trial, his four convictions pursuant to section 571.070¹ for unlawful possession of a firearm, for which he was sentenced to four concurrent seven-year terms of imprisonment. On appeal, Evans challenges the sufficiency of the evidence to support his convictions, the trial court's exclusion of any evidence or argument about the State's failure to obtain fingerprint evidence, and several allegedly improper remarks made by the State during closing argument. Because the evidence was sufficient and there was no error in either the exclusion of evidence or the State's remarks during closing argument, Evans's convictions and sentences are affirmed.

Factual Background

On October 1, 1976, Evans pled guilty in Union County, Iowa, to one count of breaking and entering, and he was later sentenced to up to ten years in the Iowa Men's Reformatory. The court suspended execution of Evans's sentence and placed him on probation. Evans successfully completed probation two years later and received a Restoration of Citizenship from the Governor of Iowa. Within the Restoration, the Governor restored Evans “to all the rights, privileges and immunities which were forfeited by reason of said conviction.” The Restoration further indicated that it was not to “be construed as a Pardon or as a remission of guilt or forgiveness of the offense.”

In 1993, Evans married Denise Firth, and together, they owned a farm located at 44523 90th Street, Stanberry, Missouri. During their marriage, Evans frequently asked Firth, as well as other family members, to purchase guns for him in their names because he knew that, as a convicted felon, he was not allowed to do so in his own name. In 2009, Firth filed for divorce and moved out. A dissolution decree was entered on July 28, 2011, and in the property division section, the decree identified numerous firearms and ammunition in Evans's possession that were to be transferred from Evans to Firth.

Sometime in early May 2011, Kathy Libby stopped by Evans's farm to have coffee and smoke marijuana with Evans. That afternoon or evening, Libby witnessed Evans obtain an unidentified handgun from his bedroom and then fire it in his kitchen. On May 24, 2011, a Highway Patrolman went to Evans's home to investigate an unrelated incident and observed numerous spent shell casings on Evans's front porch. Libby stayed with Evans as a guest in his home until July 12, 2011.

In the morning, on July 12th, Evans's mother picked him up to take him to court for a hearing on the dissolution. Libby was at the farmhouse at that time, and she left shortly after Evans and his mother. When Evans arrived at the courthouse, he was arrested on an unrelated matter,² and law enforcement officers obtained a warrant to search Evans's home.

The search warrant was executed the following day, July 13, 2011, and, at that time, no one (apart from the searching officers) was present on the property. During a search of the kitchen, officers located a zipped-shut, green duffel bag, containing four loaded handguns (a Heritage .32 caliber pistol, a Taurus .22 magnum revolver, a Charles Daly semiautomatic .45 caliber pistol, and a Colt Buntline .22 caliber pistol) and over 500 rounds of live ammunition. Over 300 rounds of live ammunition were also found in the kitchen area. At least one of the four handguns was registered to Firth, who had not been in the home since November 2009.

Evans was subsequently charged with four counts of unlawful possession of a firearm. At trial, Evans testified that he did not remember seeing a green duffel bag in his kitchen when he left his house on July 12th, and he denied possessing any of the firearms contained within it. Despite testifying on cross-examination that he did not recognize any of the firearms found in the duffel bag, Evans had previously indicated on direct examination that he knew Firth owned one of the same firearms and that the last time he had seen any of them was in 2009. Evans also admitted having firearm deer-hunting permits from 1995 through 2009 and hunting with a .50 caliber black-powder rifle.

During closing argument, over Evans's objection, the State mentioned an ongoing national debate about gun-control laws, prompted by a notorious Colorado shooting that occurred the week before, and suggested to the jury that “no matter where you stand on that particular issue,” the law in the State of Missouri precluded felons from possessing firearms, and that law needed to be enforced. The State also suggested that Evans possessed the firearms at issue and that he had loaded and packed them in the duffel bag for a quick getaway if need be.

The jury found Evans guilty on all four counts, and the court sentenced him—as a prior felony offender—to four concurrent seven-year terms of imprisonment. Evans appeals.

Sufficiency of the Evidence

In his first and third points, Evans argues that the evidence was insufficient to support his convictions. More specifically, Evans first argues that, because Libby was present as a guest in his home, she had joint control of the premises, and the State failed to present sufficient additional factors tying possession of the firearms to Evans. Evans's second argument is that the State failed to present sufficient evidence to establish that Evans knew his possession of the firearms was unlawful.

A. Standard of Review

Appellate review of challenges to the sufficiency of the evidence “ ‘is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” State v. Hougardy, 396 S.W.3d 443, 446 (Mo.App. W.D.2013) (quoting State v. Woods, 284 S.W.3d 630, 638–39 (Mo.App. W.D.2009)). “ ‘In applying this standard, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary.’ ” Id. at 446–47 (quoting Woods, 284 S.W.3d at 639). “ ‘[T]he relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. at 447 (quoting Woods, 284 S.W.3d at 639).

B. The evidence was sufficient to support Evans's convictions.

Evans was charged with four counts of unlawful possession of a firearm. “A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and ... has been convicted ... of a crime under the laws of any state ... which, if committed within this state, would be a felony....” § 571.070.1(1). Evans raises two challenges to the sufficiency of the evidence.

1. The evidence was sufficient to support the element of possession.

In his first point on appeal, Evans argues that the State's evidence was insufficient to prove that he possessed the firearms at issue in light of the facts that (1) he was not present when the firearms were discovered, and (2) the home where the firearms were found was jointly controlled by both Evans and Libby, and the State failed to present sufficient additional factors tying the firearms to Evans.

According to section 556.061(22),³ to possess “means having actual or constructive possession of an object with knowledge of its presence.” A person can have either actual possession, meaning that “the object [is] on his or her person or within easy reach and convenient control,” or constructive possession, meaning that the “person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons.” Id. “Possession may also be sole or joint.” Id.

Here, Evans was located in the county jail when the firearms were discovered in his home; thus, he did not have actual possession because they were not “within easy reach and convenient control.” Id. Consequently, the State had to present sufficient evidence to establish that Evans constructively possessed the firearms. See State v. Roggenbuck, 387 S.W.3d 376, 382 (Mo. banc 2012). “To prove constructive possession, the [S]tate had to show, at a minimum, that [the defendant] had access to and control over the area where the [contraband] was found.” Id. “In possession cases, when there is joint control over premises, ‘evidence of additional incriminating circumstances' that imply knowledge may be required.” Id. (quoting State v. Warren, 304 S.W.3d 796, 800 (Mo.App. W.D.2010)).

The State argues that this is not a joint-control case because the home belonged to Evans only and there was no evidence indicating that anyone other than Evans possessed the home.⁴ The State's argument, however, ignores the undisputed evidence that Libby was an overnight guest in the home from early May 2011 until July 12, 2011. Although Libby was not the owner of the home, the record indicates that she was at least a temporary resident and had access to areas of the home—which presumably included the kitchen—up to and on the charged date of the offenses.

Thus, this is a joint-control case and, as such, the State was required to present sufficient evidence of additional incriminating circumstances to support Evans's knowledge of and control over the firearms.

Additional incriminating circumstances that will support an inference of knowledge and control in a...