State v. Howard
| Decision Date | 22 July 1998 |
| Docket Number | No. 21915,21915 |
| Citation | 973 S.W.2d 902 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael Daniel HOWARD, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Gwenda R. Robinson, Asst. Public Defender, St. Louis, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Kevin F. Hennessey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Michael Daniel Howard (Defendant) appeals from the trial court's judgment which found him guilty of the Class D felony of unlawful use of a weapon, 1 the Class B misdemeanor of driving while intoxicated, 2 and the Class A misdemeanor of unlawful use of drug paraphernalia. 3 The Circuit Court of Taney County sentenced Defendant to the Missouri Department of Corrections for a term of two years and ordered Defendant to pay a $500.00 fine for his driving while intoxicated conviction and a $500.00 fine for his possession of drug paraphernalia conviction. We affirm.
Defendant assigns two points of trial court error. In his first point, Defendant challenges the sufficiency of the evidence to support his conviction for unlawful use of a weapon. In his second point, Defendant alleges that the trial court erred in overruling his motion to suppress the evidence used at trial against him. 4
On April 15, 1996, at approximately 12:00 a.m., Trooper Mark Green of the Missouri State Highway Patrol observed a 1973 Dodge automobile traveling at a relatively slow speed on Highway 165 in Taney County, Missouri. The automobile was traveling in a westerly direction. The driver of this automobile was Defendant.
Initially, Trooper Green thought that perhaps the driver was lost. Trooper Green followed the vehicle for a short distance before Defendant abruptly turned the vehicle onto a private, gravel driveway. Trooper Green stopped his patrol car near the intersection of Highway 165 and the gravel drive. Defendant stopped his vehicle and exited it and began walking aggressively toward Trooper Green's patrol car. Defendant ceased acting aggressively when he discovered that Trooper Green was a law enforcement officer.
Trooper Green asked Defendant what the trouble was and Defendant responded: "Sir, I wouldn't even have had to pull over if your lights hadn't been so bright." Trooper Green explained to Defendant that his patrol car carries a lot of weight in its trunk, which causes the headlights to beam upwards, appearing that the high beams are engaged when they are not. Trooper Green testified that this explanation to Defendant "seemed to calm him down a little bit."
Trooper Green asked Defendant for his driver's license. Defendant told Trooper Green that "I'm suspended on a previous DWI." Trooper Green confirmed the suspension by contacting his office at Troop D in Springfield.
Trooper Green then placed Defendant under arrest for driving while his license was revoked and placed him in the front, passenger's seat of his patrol car. Trooper Green questioned Defendant about the identity of the person who was a passenger in the vehicle Defendant was driving. Defendant responded that her name was "Regina" but was unable to recall her last name. Defendant told Trooper Green that he had known Regina for approximately "eight or nine years." Trooper Green asked Defendant whether there was anything illegal in his vehicle. Defendant responded, "Not that I know of."
Trooper Green walked to Defendant's vehicle to interview Regina. Trooper Green stated that she was "extremely cooperative" during his entire encounter with her. Regina produced identification. Trooper Green asked Regina if she knew where the vehicle's registration and proof of insurance were kept. She stated that she didn't know but agreed with Trooper Green that the documents might be located in the glove compartment. Regina opened the glove compartment and several papers fell out, including what Trooper Green recognized as a "bag of marijuana." Regina stated "I didn't know it was in there." Trooper Green confiscated the bag and placed it in his patrol car.
Trooper Green resumed interviewing Defendant and told him that he was also under arrest for possession of a controlled substance. He asked Defendant whether there was anything else illegal in his vehicle. Defendant responded "I don't know." Trooper Green testified that he was concerned with his own safety and asked Defendant whether he would consent to a search of his vehicle. Defendant did not consent. Trooper Green stated that he was concerned about his safety because it was late at night, dark, no other officers were in the area, and there was still a passenger sitting in the vehicle Defendant had been operating.
Trooper Green walked back to the vehicle and asked Regina to exit the vehicle and stand in front of it. Trooper Green then conducted a search of the front seat of the vehicle. Trooper Green found nothing under the seat but did discover the presence of loaded .38 caliber handgun, wedged between the seat cushions of the front seat. Trooper Green stated that the weapon was readily accessible by the driver of the vehicle. Trooper Green confiscated the weapon, unloaded it, and placed it in his patrol car. Trooper Green asked Defendant why he did not tell him about the revolver. Defendant did not respond. Trooper Green then informed Defendant that he was also under arrest for unlawful use of a weapon.
Trooper Green read Defendant his Miranda rights and transported him to the Taney County Sheriff's Department. While there, Defendant was thoroughly searched. Located in Defendant's jacket was a syringe and a plastic scale. Trooper Green noticed "fresh needle tracks on [Defendant's] arms" and asked him, "What are you shooting, Methamphetamine?" Trooper Green stated that Defendant said "No. I'm hooked on cocaine...." Defendant told Trooper Green that the last time he "shot cocaine" was at 10:00 p.m. that night. Trooper Green conducted several sobriety tests on Defendant while at the sheriff's department. He failed all of them.
At trial, Defendant did not testify nor present any evidence. Following the close of the State's evidence, the trial court sustained Defendant's motion for judgment of acquittal on charges of driving while license revoked and possession of a controlled substance. 5
In his first assignment of error, Defendant maintains that the trial court erred in overruling his motion for judgment of acquittal on the unlawful use of a weapon charge because there was insufficient evidence adduced during the trial to prove beyond a reasonable doubt that Defendant knowingly carried the .38 caliber revolver on or about his person. He relies on State v. Foster, 930 S.W.2d 62 (Mo.App.1996) in support of his contention. 6
"We review the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case." Foster, 930 S.W.2d at 63. In determining whether the evidence is sufficient to support a conviction, we accept as true all reasonable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. Id. at 63-64. "An 'inference' is a conclusion drawn by reason from facts established by proof." Id. at 64.
"We look to whether there was sufficient evidence from which a reasonable [finder of fact] might have found the defendant guilty beyond a reasonable doubt." Id. at 64. "We are bound to consider the inferences favorable to the state unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in a reasonable [finder of fact's] mind." Id.
Defendant was charged with, inter alia, violating section 571.030.1(1), RSMo 1994, which provides:
1. A person commits the crime of unlawful use of weapons if he knowingly:
(1) Carries concealed upon or about his person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use....
"The essential elements of the offense are the knowing concealment and accessibility of a functional lethal weapon." State v. Purlee, 839 S.W.2d 584, 590 (Mo. banc 1992).
"A weapon is accessible if it is in such close proximity to the accused as to be within his easy reach and convenient control." Id. Trooper Green testified that the "fully loaded" .38 caliber revolver, found in the vehicle Defendant was operating, was easily accessible. Trooper Green also testified that Defendant "could have easily grabbed--reached and grabbed it with his right hand and fired it within a very short amount of time." The revolver was found wedged between a crevice of the front seat cushions of the vehicle Defendant was operating.
Additionally, the "test of concealment is whether a weapon is so carried as not to be discernable by ordinary observation." Id. "A weapon is not concealed simply because it is not discernable from a single vantage point if it is clearly discernable from other positions." Id. (quoting State v. Cavin, 555 S.W.2d 653, 654 (Mo.App.1977)). "It may be concealed, however, where it is discernable only from one particular vantage point." Id. "[W]hen a loaded firearm is carried in a vehicle within easy reach of the occupants, 'ordinary observation' is tested from the vantage point of an approaching officer." Purlee, 839 S.W.2d at 590.
Trooper Green testified during an examination by the trial court judge as follows:
Q. And the revolver was located in the approximate middle of the front bench seat; is that correct?
A. Yes. It would have been directly to his right.
Q. I believe you have already stated it was well within his reach; is that correct?
A. Yes, sir, it was.
Q. And the butt of the gun, would it have been possible for him to grab the butt of the gun and pull it out in a fairly quick manner?
A. Yes, very easily. He could have easily reached down, grabbed the whole gun, had a firm grip on it, and discharged it.
Q. Was the butt of the gun visible? Do you know if the butt of the gun would have been visible to the driver from your observations in...
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