State v. Hughes, WD

• Citation: 702 S.W.2d 864
• Decision Date: 12 November 1985
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Emmett HUGHES, Appellant. 37107.
• Court: Missouri Court of Appeals

Page 864

702 S.W.2d 864

STATE of Missouri, Respondent, v. Emmett HUGHES, Appellant.

No. WD 37107.

Missouri Court of Appeals Western District.

Nov. 12, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Dec. 24, 1985.

Application to Transfer Denied

Feb. 18, 1986.

Kathleen Murphy Markie, Columbia, for appellant.

Robert J. Ahsens, III, Asst. Pros. Atty., Jefferson City, for respondent.

Before SOMERVILLE, P.J., and PRITCHARD and BERREY, JJ.

BERREY, Judge.

Hughes was found guilty, in this court-tried case, of possessing an untagged deer in violation of conservation regulation 3 CSR 10-7.435(1)(A) and section 252.040, RSMo 1978, and sentenced to fifteen days in the county jail. He appeals, challenging the sufficiency of the evidence and an amendment to the information.

The judgment is affirmed.

From the evidence, the trial court could have found the following:

Hughes had been deer hunting in Osage County with a friend, David Perdue and David's son Michael. When Hughes returned to his home in Cole County he found it locked and he had no key. As he and Michael walked around his home, the local conservation agent, an acquaintance of Hughes, saw him and stopped to check on Hughes' success. The agent, Willie Lyles, was driving a conservation department vehicle and was in uniform. In the course of their conservation Hughes told Lyles "he had went off and left his key and was trying to figure a way to get into the house." At this time Hughes acknowledged he'd been deer hunting and "didn't have a bit of luck."

As Lyles prepared to leave he heard a noise in the back of Perdue's pickup truck which was fitted with stock racks and parked in Hughes' driveway. Subsequently, a man stood up in the bed of the truck. He told Lyles his name was Perdue. When asked about what he was doing he replied "[o]h nothing." This response coupled with the length of time Lyles had been there before Perdue "poped" [sic] out of the back of the truck caused Lyles to became suspicious since he had frequently encountered pairs of hunters who tried to bring in an untagged deer by having one hunter remain in the back of the truck with the deer to tag it if they were stopped by a conservation agent.

Lyles climbed up onto the tailgate and looked into the bed of the truck with the aid of a flashlight. There he saw some loose boards, cans, a trap, and an unattached Missouri resident deer tag in the back corner of the truck bed on the passenger side. He subsequently determined the tag had been issued to Hughes. Lyles requested Perdue lift the tarp which Perdue did and Lyles observed an untagged doe deer which Hughes then admitted to killing. Lyles interrogated Michael, age fourteen, shown his flashlight into the boy's face and asked the boy if he killed the deer. Hughes again acknowledged he killed the deer and they told Lyles the boy didn't have anything to say to him. ¹ Lyles issued Hughes a summons for "failure to tag deer immediately after the kill" in violation of section 252.040, RSMo 1978, and 3 CSR 10-7.435. The charge was later amended to "possession of untagged deer" in violation of the same statute and regulation.

Hughes, by his first point on appeal, contends that there was insufficient evidence to support his conviction for possession of an untagged deer in that it was not established that he was ever in possession of the deer. His argument is based on the following evidence presented at trial. Hughes acknowledged he killed the deer on November 10, 1984, between 3:00 and 4:00 p.m. and then he became ill before he could find it. Therefore, he gave his deer tag to Perdue and Michael and asked them to find his deer for him while he waited in Perdue's truck--the vehicle they had taken hunting. Perdue and Michael found the deer, put it in the back of the truck and then drove Hughes home. Perdue testified he tagged the deer by tying the tag around "its leg with a piece of string" and he removed the tag and gave it to the warden when instructed. Hughes was aware that they found the deer but he did not see it. Perdue, not Hughes, was in the truck when Lyles discovered the deer. At this juncture the warden "wrote Hughes a ticket" and the defendant referred to such action as "Chicken shit." According to Lyles, Hughes made no statement about "some medical condition that he had that affected his ability to tag the deer."

Subsequently, the warden took the deer to his residence, photographed it and then put it in a locker, and returned the deer tag to the defendant, thereby enabling the defendant to take another deer. ²

In considering a challenge to the sufficiency of the evidence in a court-tried case, the reviewing court views the evidence and all reasonable inferences arising therefrom in the light most favorable to the state. State v. Seaman, 625 S.W.2d 950, 952 (Mo.App.1981).

The charge against Hughes was based on section 252.040, which prohibits the pursuit, taking, killing, possession or disposition of wild life except as permitted by the applicable rules and regulations, and Wildlife Code Regulation 3 CSR 10-7.435(1)(A), which provides that "[d]eer may be pursued, taken, killed, possessed or transported only as herein permitted.... Any person killing a deer shall properly tag such deer immediately with the taker's deer hunting permit, which shall remain attached to the carcass until it has been inspected and marked by an agent of the commission during the firearms deer season...." Possession is defined by 3 CSR 10-11.805(33) as "[t]he actual and constructive possession and control of things referred to in this Code."

In this definitional context the word "and" can be construed to mean "or". See City of St. Louis v. Consolidated Products Co., 185 S.W.2d 344, 346 (Mo.App.1945). Any other construction would render the definition meaningless as the terms "actual" and "constructive" are mutually exclusive. Actual possession means "direct physical control." Black's Law Dictionary, 1047 (rev. 5th ed. 1979). Constructive possession may arise where actual possession does not exist. Thus, the state's burden is satisfied if only "constructive" possession is shown.

Constructive possession is attributed to a "person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons...." Id. It was undisputed that the deer was shot by and belonged to Hughes. Pursuant to Hughes's request, the deer was placed in Perdue's truck--the vehicle in which Hughes was also traveling. Perdue took no action inimical to Hughes's interest in the deer, but rather, in retrieving the deer for Hughes, he acted to preserve Hughes' interest. There is no claim that Hughes had renounced his interest in the deer and all of the evidence was consistent with the view that Hughes continued to exercise control over the deer through Perdue.

Hughes argues that as a further prerequisite to establishing constructive possession it was necessary to show that he knew that the deer was not tagged. For purposes of this appeal, the court need not determine whether such knowledge is indeed a required element of the instant offense inasmuch as there was evidence demonstrating that Hughes knew that the deer was not tagged.

When Lyles first arrived, Hughes said he had not had any luck deer hunting. However, Hughes subsequently testified he told Lyles he had "a deer in the back of the truck." When the conservation agent observed the deer carcass, Hughes acknowledged that he had "killed the deer." Although Hughes and Perdue testified the tag was tied around the deer's leg, agent Lyles stated that upon his examination of the deer, no tag was attached. ³ This court defers...