State v. Gibbs, WD

• Decision Date: 05 May 1980
• Docket Number: No. WD,WD
• Citation: 600 S.W.2d 594
• Parties: STATE of Missouri, Respondent, v. George Edward GIBBS, Appellant. 30626.
• Court: Missouri Court of Appeals

Page 594

600 S.W.2d 594

STATE of Missouri, Respondent, v. George Edward GIBBS, Appellant.

No. WD 30626.

Missouri Court of Appeals, Western District.

May 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 9, 1980.

Thomas J. Cox, Jr., Kansas City, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P. J., and PRITCHARD and SWOFFORD, JJ.

PRITCHARD, Judge.

By the verdicts of a jury, appellant was convicted of the commission of the crimes (Count I), carrying a concealed weapon, and (Count II) possession of over 35 grams of marijuana. Upon a finding that appellant was a second offender, the court sentenced him to three years imprisonment in the Division of Corrections on each count, the sentences to run concurrently. Appellant's Point I is that the court erred in overruling his motion for directed verdict upon the charge of carrying a concealed weapon because the evidence did not show beyond a reasonable doubt that the weapon was not discernible by ordinary observation and that defendant had an intent to conceal. Point II is that the motion for directed verdict was improperly overruled on the charge of unlawful possession of a controlled substance because the evidence did not show beyond a reasonable doubt that appellant had any controlled substance intentionally and knowingly in his possession or under his control. Other points will be set forth below.

On March 25, 1977, Trooper J. B. Martin, of the Highway Patrol, was on duty in Clinton County, Missouri, with Trooper R. W. Johnson, on the east edge of Cameron, and observed a motor vehicle violation of a Corvette travelling southbound on the off ramp of I-35 and Route BB, being the wrong way for the ramp. The vehicle then turned northbound and proceeded until Martin caught up with it and stopped it. The driver was appellant, whom Martin told he would be arrested for driving the wrong way on the ramp. Johnson approached the vehicle from the passenger side, shined his flashlight in and brought a .380 Mauser automatic pistol to Martin. Martin unloaded the weapon and placed appellant under arrest for carrying it concealed. Upon looking in the car, and making an "inventory", Martin found another clip for the pistol in the dash, and he saw a large plastic garbage bag, not sealed, lying in the rear compartment right behind the two seats of the Corvette. He took the garbage bag to St. Joseph, and it was there locked in an evidence locker, and later was picked up by the chemist.

Trooper R. W. Johnson testified that he ran a wanted check on appellant's car after Martin got out of the patrol car on stopping the Corvette. He then went to the right or passenger side of the vehicle, and shined his flashlight in it. "Q. What did you see, if anything? A. Well, after I got to the right front, and by looking directly into the right side of the windshield I could see what I believed to be a weapon lying under the driver's seat at the well, right at the edge of the driver's seat." He walked around the car, opened the door and retrieved the weapon which was fully loaded. Further testimony: "Q. And where was State's Exhibit Four lying? A. The weapon? Q. Yes. A. It was lying under the seat. Q. Could you see it from the driver's seat as you looked in? A. No. I could see it on the like I say, by walking around to the right front and shined through the windshield, not through the side window, but through the windshield, and I could see the weapon under the seat at that angle." On cross-examination: "Q. And you came around the car shining your light in, and you got to the right front of the windshield at 2 o'clock in the morning and you shined your light in and you saw what part of this weapon? A. As I recall it was the butt that was forward, in under the seat. Q. By forward you mean toward the front of the motor vehicle? A. Yes, sir. Q. Okay. And a Corvette is a very low slung car? A. Yes, sir. Q. And it has bucket seats? A. Very thin bucket seats, yes." At the time Johnson retrieved the weapon, appellant was outside the vehicle with Trooper Martin.

§ 564.610, RSMo 1978 (now § 571.115, to which the former statute was transferred) in pertinent parts, provides: "If any person shall carry concealed upon or about his person a dangerous or deadly weapon of any kind or description, * * * he shall, upon conviction, be punished by imprisonment by the division of corrections for not more than five years, or by imprisonment in the county jail not less than fifty days nor more than one year, but nothing contained in this section shall apply * * * to persons traveling in a continuous journey peaceably through this state."

As to the element of concealment under the statute, State v. Bordeaux, 337 S.W.2d 47, 49(4) (Mo.1960), says: "Generally, the test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation. (Citing Missouri cases.) This is in accord with the general rule applied in other jurisdictions. 43 A.L.R.2d 492, 510, 512." This statement is repeated and Bordeaux cited in State v. Cavin, 555 S.W.2d 653, 654(1, 2) (Mo.App.1977), which states further, "Defendants contend, and we agree, that a weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. It may be concealed, however, where it is discernible only from one particular vantage point. State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907)." In the Miles case, the facts were that "appellant sat quietly in his (train) seat with his coat off, holding the pistol in one hand, but partially concealed by his vest and pants. According to state's evidence, no part of the pistol was in open view, and could only be seen by looking in a certain direction, and from a certain point." Held, to create a jury question as to whether appellant had the pistol concealed on his person, and obviously that evidence satisfied the Cavin statement of the law that the weapon may be concealed where it is discernible only from one particular vantage point, and that is the question under the facts in this case as they relate to appellant's Point I contention that the evidence did not show beyond a reasonable doubt that the weapon was not discernible by ordinary observation. Giving to Trooper Johnson's testimony and the inferences to be drawn therefrom its most favorable light, it shows this: He could not see the weapon from the driver's side of the Corvette, nor through the right side window, but he saw it lying under the driver's seat, with its butt sticking toward the front of the car only when he shined his light down toward the thin bucket seat from the right front side of the windshield. From this evidence, the jury could conclude that the weapon, being carried in the car and readily accessible to appellant while driving the car, was not discernible by ordinary observation. Point I is overruled.

Going now to Point III, under which appellant asserts that the court erred in admitting any evidence of possession of a controlled substance because the evidence was obtained pursuant to an illegal and improper search and seizure, the state responds first that appellant did not properly raise the issue in his motion for new trial. A fair reading of appellant's motion shows that the issue was presented to the trial court. On motion to suppress the evidence, which was overruled, the evidence was this: Trooper Martin had stopped appellant for driving the wrong way down a ramp and the two were standing toward the rear of appellant's Corvette where he was being interrogated as to that incident. After Trooper Johnson retrieved the weapon from under the driver's seat of the car and laid it on its trunk, appellant was placed under arrest for carrying a concealed weapon, at which time Martin did not advise appellant of his rights nor did he question him. Then Martin made an inventory of appellant's vehicle and found a plastic bag which contained a green leafy substance which he believed to be marijuana. Martin did not ask appellant for permission to search the car, and appellant did not in his presence make any belligerent, threatening or any other statement that caused him to be fearful of him. The plastic bag was lying on the flat part behind the passenger and driver's seat in the Corvette, there being no rear seat but just a flat compartment, and the plastic bag was accessible from the driver's seat. When Martin first observed the bag, he was on the passenger side of the vehicle, "just looking in and I seen it laying in the back." He was looking in the window of the car with a flashlight. On further cross-examination by the state's attorney, Martin testified that he had made 30 or 40 drug related arrests, and plastic bags, such as the one he seized, are commonly used for transporting controlled substances. Trooper Johnson testified also that after he found the first weapon, he had no reason to believe that there was another weapon in the car "because I had no way of knowing whether there was or was not." In fact, he later did not find another weapon.

It is unnecessary to consider whether the search of the Corvette and the seizure of the plastic bag were incidents of the arrest of appellant for carrying a concealed weapon justifiable upon the theory of a protective search for weapons which might be used by the arrestee, or to prevent the destruction of any incriminating evidence in his possession. The latter element is, however, in this case. See State v. Dayton, 535 S.W.2d 479, 484, et seq. (Mo.App.1976), for a discussion of the rules justifying warrantless searches. Rather this seizure may be and is held valid upon the plain view doctrine. As noted, Trooper Martin shined his flashlight into the rear compartment of the Corvette. "The use of a flashlight to see that which would be in plain view in the daytime does not convert that which would not...