State v. Flenoid

• Decision Date: 01 September 1992
• Docket Number: Nos. 59697,69755,s. 59697
• Citation: 838 S.W.2d 462
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Gregory FLENOID, Defendant/Appellant. Gregory FLENOID, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 462

838 S.W.2d 462

STATE of Missouri, Plaintiff/Respondent, v. Gregory FLENOID, Defendant/Appellant.

Gregory FLENOID, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.

Nos. 59697, 69755.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 1, 1992.

Janis C. Good, Jeannie Arterburn, St. Louis, for appellant.

William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for respondent.

CRANE, Judge.

A jury found Gregory Flenoid guilty of the offenses of possession of a controlled substance, cocaine, in violation of § 195.202.1 RSMo (Cum.Supp.1989) and unlawful use of a weapon in violation of § 571.030.1(1) RSMo 1986. The trial court found Flenoid to be a persistent drug offender and a prior, persistent and class X offender and sentenced him to concurrent terms of ten years imprisonment for possession of a controlled substance and ten years imprisonment for unlawful use of a weapon. Flenoid filed a Rule 29.15 motion for post-conviction relief which was denied without an evidentiary hearing. Flenoid appeals from both the judgment of the trial court and the order of the motion court.

On his direct appeal Flenoid contends the trial court plainly erred in sentencing him as a class X offender pursuant to § 558.019.2 RSMo (Cum.Supp.1989). He also contends the trial court erred in denying his motions to suppress physical evidence and statement, and in admitting, over objection, evidence of other crimes. He further asserts the court committed plain error when it did not sustain his objection to the use of prior convictions on cross-examination and erred in not granting his motion for a mistrial. He also contends the court plainly erred when it submitted an erroneous verdict directing instruction on the crime of unlawful use of a weapon and submitted MAI-CR3d 302.04 on reasonable doubt. In his appeal from the order of the motion

court, Flenoid asserts the motion court clearly erred in denying without an evidentiary hearing his motion for post-conviction relief for ineffective assistance of counsel. We modify the judgment of the trial court by removing the finding that defendant was a class X offender. We affirm the judgment of the trial court as so modified and affirm the order of the motion court.

DIRECT APPEAL

The sufficiency of the evidence is not in dispute. Because the validity of the search warrant is at issue we will set out the facts adduced at the hearing on motion to suppress statements, as well as evidence adduced at trial. On October 6, 1989, St. Louis narcotics detectives Samuel Zouglas and Terry Kaelin received information from a confidential informant that cocaine was being sold and stored by Felix Frazier and others in two apartments located at 5506 and 5506A Wabada. The two apartments were located in a building owned by Flenoid's mother, Jesse Tammons Williams.

Detectives Zouglas and Kaelin conducted surveillance of the building later that afternoon and observed behavior they believed was indicative of drug trafficking. Numerous individuals entered the apartments, stayed briefly and then left the immediate area. As a result of the information they were provided and their surveillance, the detectives applied for and obtained a search warrant for the two apartments at approximately 10:00 p.m. that evening, but did not execute the search warrant at that time. One of the reasons for the delay was that the police were waiting for the informant to let them know "when it was good."

On October 11, 1989 the detectives again received information from the informant that drugs were being sold from the two apartments, and that Frazier, who resided at 5506A Wabada, was there. At approximately 10:00 p.m. that evening, the detectives returned to the building where they observed numerous individuals enter the apartments, stay a short time and then leave. The detectives then radioed other narcotics officers to assist them in executing the search warrant.

The additional officers arrived at 2:00 a.m. on October 12, 1989. The police announced their presence and purpose. When they received no response, they forced open the doors of both apartments with a battering ram. Detective Kaelin entered 5506A Wabada first and ran up a flight of stairs to the living quarters. As he entered the upstairs apartment he saw Flenoid start running through the kitchen to a back room. Detective Kaelin caught Flenoid, who then dropped a plastic bottle he had been holding in his hand. Detective Kaelin retrieved the bottle, which was labeled "Dormin," a sleeping aid often used to cut cocaine. The bottle contained forty-seven pink and clear capsules which he believed to be cocaine, a rock substance which he also believed to be cocaine, and a powder.

The detective then handcuffed Flenoid, advised him of his rights and searched him. As a result of the search, Detective Kaelin found a loaded .25 caliber automatic pistol concealed in Flenoid's right rear pants pocket, a beeper and $122 in currency. He arrested Flenoid who was taken to the police station and again advised of his rights. During booking Flenoid again was advised of his rights. He admitted to Detective Kaelin that the plastic bottle he dropped contained drugs. He claimed the drugs belonged to Felix Frazier who had just left the residence before the police arrived and that he was merely selling the drugs for Frazier. Laboratory tests revealed the capsules contained 4.42 grams of cocaine and the rock substance was crack with a cocaine base.

In his first point Flenoid asserts the trial court plainly erred by finding him to be a class X offender. The state agrees that the trial court erred in making this finding.

Section 558.019 RSMo (Cum.Supp.1989) provides minimum prison terms for class X offenders and others if a defendant has at least one prior felony conviction and has served 120 days or more in the Department of Corrections. This section defines a class X offender as one who has previously pleaded guilty or been found guilty of three felonies committed at different times. A class X offender is required to serve a minimum prison term of eighty percent of his sentence.

However, the minimum term provisions of § 558.019 apply only to class A and B felonies committed under certain chapters of Missouri statutes and dangerous felonies as defined in § 556.061(8) RSMo (Cum.Supp.1989). Flenoid was not convicted of either a class A or B felony or a dangerous felony. Possession of a controlled substance is a class C felony and unlawful use of a weapon is a class D felony. Neither conviction is defined as a dangerous felony under § 556.061(8). Flenoid's sentence for possession of a controlled substance was enhanced under § 195.285 to a term of years authorized for a class A felony. However, only the sentence was enhanced to a term authorized for a class A felony under that section; the underlying conviction was not enhanced to a class A felony. Flenoid's possession conviction remained a class C felony which was not covered by the minimum term provisions for class X offenders found in § 558.019.

Accordingly, the trial court plainly erred by finding Flenoid to be a class X offender. Under Rule 30.23 we may finally dispose of a case unless justice otherwise requires. Because the finding affects only the mandatory minimum time to be served and not the sentence imposed, we may modify the judgment by removing the finding that Flenoid is a class X offender and do so.

In his second point, Flenoid challenges the admission of the pistol and the cocaine seized by the police and his post-arrest statement. Flenoid asserts both the physical evidence and the statement are inadmissible fruits of an unlawful search based on an invalid warrant.

Before we reach the merits of this point, we must first consider whether these contentions have been properly preserved for our review. Flenoid filed pre-trial motions to suppress the pistol, the cocaine and his statement. In order to attack the validity of a search or the voluntariness of a statement and the admissibility of the fruits of that search or of the statement, a defendant must have kept the questions alive at trial by asserting timely objections to the admission of such evidence and by raising the matter in his motion for a new trial. State v. Anderson, 698 S.W.2d 849, 851 (Mo. banc 1985).

Flenoid did not object to the introduction of his post-arrest statement at trial. That issue is thus not preserved for appeal. Flenoid seeks our plain error review but has not included in his brief any legal authority or discussion relating to any ground raised in his motion to suppress his statement. Absent any argument or authority we deem the issue waived or abandoned. State v. Meadows, 785 S.W.2d 635, 641 (Mo.App.1990); State v. Harris, 670 S.W.2d 73, 81 (Mo.App.1984). The entire argument focuses on the legality of the search.

Even in his motion to suppress Flenoid did not specifically assert the legality of the search as a ground to suppress his statement. He is thus precluded from doing so on appeal. "A point on appeal must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made." State v. Cannady, 660 S.W.2d 33, 37 (Mo.App.1983). For all of the above reasons, Flenoid has failed to preserve and has waived any error relating to the admission of his statement. Given our holding that the search was valid, there is no need for plain error review.

The pistol was never introduced or received into evidence. Accordingly there can be no claim of error regarding the admission of the pistol.

Flenoid moved to suppress the cocaine and objected to the admissibility of the cocaine at trial. His motion to suppress and trial objections attacked the search and the warrant on various grounds, but not specifically on the ground raised in the brief. In his brief Flenoid argues the cocaine is inadmissible because the probable cause upon which...