State v. Gonzalez

• Decision Date: 26 July 2007
• Docket Number: No. 27968.,27968.
• Citation: 235 S.W.3d 20
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Geovanni L. GONZALEZ, Defendant-Appellant.
• Court: Missouri Court of Appeals

235 S.W.3d 20

STATE of Missouri, Plaintiff-Respondent, v. Geovanni L. GONZALEZ, Defendant-Appellant.

No. 27968.

Missouri Court of Appeals, Southern District, Division Two.

July 26, 2007.

Motion for Rehearing and Transfer Denied August 17, 2007.

Nancy A. McKerrow, Office of State Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Joshua N. Corman, Assistant Attorney General, Jefferson City, MO, for respondent.

GARY W. LYNCH, Judge.

Geovanni L. Gonzalez ("Defendant") appeals his conviction following a court trial upon a charge by information of the class B felony of possession of a controlled substance with intent to distribute, in violation of section 195.211.¹ Defendant brings two claims: the evidence was insufficient to support the conviction, and the drug evidence was inadmissible as a product of an unconstitutional seizure and search. We agree that the evidence was insufficient to support Defendant's conviction and reverse and remand with directions that Defendant be discharged.²

1) The Scope of the Record for Review on a Claim of Insufficient Evidence

Initially we note some confusion on the part of the state in its brief as to the scope of the record which is reviewable by an appellate court on Defendant's first point—sufficiency of the evidence to support his finding of guilt—as opposed to the scope of the record which is reviewable on Defendant's second point—admissibility of evidence in violation of his constitutional rights. The procedural background giving rise to this apparent confusion is as follows.

Defendant filed a motion to suppress the drug evidence as being obtained through an unconstitutional seizure and search. The trial court held an evidentiary hearing on this motion and overruled it. Defendant later waived his right to a jury, and the case was tried to the court. During the trial Defendant timely renewed his objections originally asserted in his motion to suppress, which were once again overruled by the trial court. None of the evidence adduced at the hearing on the motion to suppress was offered or otherwise admitted into evidence during the trial. Contra State v. Johnson, 529 S.W.2d 658, 661 (Mo.App.1975) (parties stipulated that testimony taken at hearing on motion to suppress may be admitted into evidence at trial as though presented in the state's case in chief); State v. Wirth, 192 S.W.3d 480, 482 (Mo.App.2006) (defendant requested that the motion to suppress "be taken up— ... with the trial in this matter."); State v. McDonald, 10 S.W.3d 561, 562-563 (Mo.App.1999) (defendant stipulated that hearing on motion to suppress was also considered as the trial of the case).

The state's brief references and relies upon evidence elicited in the hearing on the motion to suppress and the trial. This is appropriate with regard to Defendant's second point — the admissibility of the drug evidence — because in determining the propriety of the admission of constitutionally challenged evidence by a motion to suppress which is overruled by the trial court, we review both the evidence adduced at the hearing on the motion to suppress and the evidence adduced at trial. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005); State v. Harrison, 213 S.W.3d 58, 68 (Mo.App.2006). But in regard to Defendant's first point — sufficiency of the evidence to support his finding of guilt — consideration of evidence adduced at the hearing on the motion to suppress, but not admitted into evidence at the trial, is not appropriate.³ In reaching this conclusion, we employ the following analysis.

The admissibility of evidence obtained through an allegedly illegal seizure or search raises a collateral issue, which is required to be tried in a proceeding independent of the issue of guilt. State v. Dalton, 23 S.W.2d 1, 5 (Mo.1929); State v. Hardin, 555 S.W.2d 27, 29 (Mo.1977); State v. Henderson, 954 S.W.2d 581, 585 (Mo.App.1997). One of the purposes in requiring the filing of a motion to suppress prior to trial is to remove from the trial "collateral issues not bearing on guilt." State v. Harrington, 435 S.W.2d 318, 321 (Mo.1968). Evidence which may be admissible on these collateral issues may not necessarily be admissible on the issue of guilt. See, e.g., State v. Ramires, 152 S.W.3d 385, 399 (Mo.App.2004) (rule is well-established that defendant's testimony in support of his motion to suppress evidence as result of unlawful search or seizure may not be used against him at trial on issue of guilt).

On the other hand, "the purpose of a trial in a criminal case is to permit the fact-finder to determine a defendant's guilt." Hagan v. State, 836 S.W.2d 459, 464 (Mo. banc 1992) (questioned on other grounds by State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992)). It appears elementary that in order to achieve this purpose the evidence upon which the defendant's guilt is based must be presented during the trial. This proposition is clear in the context of a jury trial, in that the only evidence the jury receives is that adduced during the trial, which has defined beginning and ending points. Rule 27.02.⁴

Evidently from the state's brief in this case, this proposition is not so elementary or clear in the context of a court trial. Without citation to any supporting authority — and our research has disclosed no such authority exists — the state simply assumes that the trial by the court includes the evidence adduced during the hearing on the motion to suppress. This is not so. A court trial, just like a jury trial, has definite beginning and ending points. A court trial in a criminal case begins with a mandatory opening statement by the state. State v. Anders, 975 S.W.2d 462, 466 (Mo. App.1998); Rule 27.02; Section 546.070. "A dual purpose has been attached to the requirement of an opening statement: to advise the jury of the facts which the state expects to prove, and to inform the defendant of the contemplated course of the prosecution in order that the defendant can meet the charge against him." State v. Little, 572 S.W.2d 871, 874 (Mo.App. 1978). The opening statement speaks prospectively, in that the state is required to advise the fact-finder of the evidence which it expects to prove and inform the defendant of the contemplated course of the prosecution. Id. Nothing in the record in the case at bar supports that the state ever informed Defendant that the evidence admitted in the hearing on the motion to suppress on the issue of the admissibility of the drug evidence would be used against him on the issue of his guilt.

Finally, Rule 27.07 provides, in part:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. (Emphasis added).

This rule explicitly references the points in a trial when either the evidence in the state's case-in-chief is closed or all evidence is closed. Thus, it obviously contemplates that the evidence must have "opened" at some preceding point in time. That point in time is immediately following the required state's opening statement and the defendant's optional opening statement. Rule 27.02. Therefore, the scope of the record for our review of Defendant's point challenging the sufficiency of the evidence to support his finding of guilt is that evidence admitted after the opening statements and before the close of all the evidence, i.e., the evidence presented at trial. Id.; Rule 27.07.

2) Standard of Review

Where a defendant in a court-tried case challenges the sufficiency of the evidence to support his conviction, our standard of review is the same as in cases tried by a jury. State v. Hudson, 154 S.W.3d 426, 429 (Mo.App.2005). Our inquiry begins by looking to the elements of the crime and considering each in turn. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).

"We accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored. [State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997)]. We determine whether there was sufficient evidence from which a trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Phillips, 940 S.W.2d 512, 520 (Mo.banc 1997). Moreover, this Court does not weigh the evidence or determine the reliability or credibility of witnesses. State v. Frappier, 941 S.W.2d 859, 861 (Mo.App. 1997)."

State v. Wirth, 192 S.W.3d 480, 481-82 (Mo.App.2006), quoting State v. Mayfield, 83 S.W.3d 103, 104-05 (Mo.App.2002), quoting State v. Matney, 979 S.W.2d 225, 226 (Mo.App.1998).

"`An "inference" is a conclusion drawn by reason from facts established by proof; "a deduction or conclusion from facts or propositions known to be true."'" State v. McMullin, 136 S.W.3d 566, 573 (Mo.App.2004), quoting Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626, 630 (1941). "While we are to accept as true all inferences favorable to the State, they must be logical inferences that may be reasonably drawn from the evidence." State v. Friend, 936 S.W.2d 824, 828 (Mo.App.1996), citing State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). We will not "supply missing evidence or give the state the benefit of unreasonable, speculative or forced inferences." State v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003), citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001).

3) Factual Background

The only witness at trial was the Assistant Chief of the City of Bourbon Department of Public Safety, Scott C. Mathenia ["Officer Mathenia"]. His trial testimony and the trial exhibits, viewed in accordance with the above-stated standard of review, reveal the following.

On April 4, 2006, Officer Mathenia was on duty and running stationary radar from a parked position on eastbound I-44. He...