State v. Kimberley
| Decision Date | 08 April 2003 |
| Docket Number | No. WD 60529.,WD 60529. |
| Citation | 103 S.W.3d 850 |
| Parties | STATE of Missouri, Respondent, v. Alisha KIMBERLEY, Appellant. |
| Court | Missouri Court of Appeals |
Deborah Daniels, Asst. Prosecuting Attorney, Columbia, MO, for Respondent.
Daniel L. Viets, Columbia, MO, for Appellant.
Before HAROLD L. LOWENSTEIN, JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
Alisha Kimberley appeals her convictions for possession of a controlled substance and possession of drug paraphernalia. The court suspended the imposition of sentence ("SIS") on the controlled substance conviction and fined her $200.00 on the paraphernalia conviction. The State moves that the appeal be dismissed. We grant the motion to dismiss the appeal as to the controlled substance conviction and deny the motion to dismiss as to the paraphernalia conviction.
On December 24, 2002, we issued an opinion in which we concluded that the evidence was not sufficient to support the conviction of possession of drug paraphernalia. On motion for rehearing, the State pointed out factual matters which it asserted we had misinterpreted. Our review of the record confirmed the accuracy of these contentions. Because these factual items were critical to the analysis under our standard of review, we now affirm the conviction.
On November 21, 2000, Kimberley was charged with one count of possessing under thirty-five grams of marijuana, a controlled substance, in violation of § 195.202 RSMo 2000.1 She was also charged with one count of possessing drug paraphernalia with intent to use in violation of § 195.233. Both charges were class A misdemeanors.
Kimberley filed a motion to suppress evidence, claiming an illegal search and seizure. The motion was denied. After a bench trial, the court convicted Kimberley on both counts.
The evidence and all inferences flowing from the evidence are viewed in the light most favorable to the verdict. State v. Clay, 975 S.W.2d 121, 130 (Mo. banc 1998). At approximately 6:00 a.m. on October 21, 2000, the Columbia Police Department began investigating a report that three men were in back of 1417 Rosemary, breaking up furniture and throwing pieces of it around. A neighbor reported that some of the pieces struck his house. Two officers arrived on the scene and questioned the caller, a neighbor of 1417 Rosemary, about the disturbance. One of the officers then knocked on the back door at 1417 Rosemary, which appeared to be the entrance to apartment A. The other officer remained several feet behind him. The officers testified that, immediately after the knock, the outside light over the door went out. At this time the area was relatively dark because the sun had not risen. The officer who knocked on the door heard the "pump action of a shotgun" (indicating the chambering of a round) coming from inside the house. That officer ran past the other officer, yelling that someone had a gun. The officers saw a door open part way and saw a shotgun barrel protruding out the doorway, being held by someone's arms, making a sweeping motion. The officers had their weapons drawn. They yelled to identify themselves as police officers. The individual continued holding the shotgun. They yelled at him to put the shotgun down. He declined. The officers took cover, one at the side of the building. The officer at the side of the house heard the individual stepping on the steps, then walking toward him. He continued to yell "put the gun down." As the individual continued to approach, the officer ran to the street, got behind a car, and called for backup.
Shortly thereafter, officers observed a man running from the house. That man, Paul Hoffman, was captured and taken into custody. No weapon was found on him. Hoffman was not cooperative, refusing to discuss what had transpired. At about the same time, other officers arrived and set up a "perimeter" around the house, which contained three apartments, one on each of the three floors. Shortly thereafter, the department's Special Tactics and Response ("STAR") Team arrived. A bullhorn was used for almost an hour to get anyone else inside to come out.
Sometime between 9:30 and 10:00 a.m., officers for the STAR (equivalent to "SWAT") team entered the first floor apartment without a warrant and without consent. The STAR team went in with special protective equipment. The purpose of the entry, according to the police, was to secure the residence, to "make sure no one was hurt," and help anyone who needed medical assistance. When the officers entered the building, they found Alisha Kimberley lying on the couch, apparently asleep. She did not immediately respond to loud commands, but finally responded. Marijuana and drug paraphernalia were observed in plain view on the coffee table approximately two feet from where Kimberley was lying. She was handcuffed and informed that she was under arrest. The police then escorted her out of the house and into the back of a patrol car.
Other officers finished clearing the residence to be sure no one else was inside. No one else was found. The other two men who reportedly were part of the original disturbance were never located. The police recovered a shotgun from the residence. A "bong" used for smoking marijuana was found resting on the floor in a corner of a "computer room" in the apartment.
Kimberley was taken to the police station. She was questioned by the officer who issued her a summons. He discovered that Kimberley was a resident of the apartment where the drugs and paraphernalia were found. Kimberley shared the apartment with Paul Hoffman, who had run from the apartment and was apprehended. She was charged with possession of the marijuana and the paraphernalia.
Kimberley waived a jury trial, and tried the case to the court. At trial, although she denied use or possession of the contraband, and denied that she consented to its use in her presence, she acknowledged that she was a resident of the apartment where the drugs and paraphernalia were found. She was aware that the paraphernalia was used to smoke marijuana, and she acknowledged being present when marijuana was smoked on a previous occasion.
Kimberley was found guilty by the trial court on both counts. The court suspended imposition of sentence on Count I (controlled substance) and imposed a sentence of a $200.00 fine on Count II (paraphernalia). This appeal follows.
The State moves to dismiss the appeal based on the argument that a suspended imposition of sentence is not a final, appealable judgment. State v. Lynch, 679 S.W.2d 858, 860 (Mo. banc 1984). For this reason, the State argues, the appeal as to Count I must be dismissed. Likewise, the State contends, the appeal as to Count II should also be dismissed. The State reasons that it, too, is "not ripe for appeal since Missouri Courts have held that both counts of a two count information must be disposed of and if not, then the appeal is premature," citing State v. Thomas, 801 S.W.2d 504, 505 (Mo.App.1991).
A suspended imposition of sentence is not a final judgment. Lynch, 679 S.W.2d at 862. The rule of Lynch has been followed on multiple occasions. See, e.g., State v. Burns, 994 S.W.2d 941, 943 (Mo. banc 1999); State v. Detherage, 869 S.W.2d 293 (Mo.App.1994); State v. Hanners, 827 S.W.2d 273, 274 (Mo.App.1992); State v. Sandbothe, 750 S.W.2d 664, 665-66 (Mo.App.1988). The right of appeal in criminal cases is limited to final judgments, pursuant to § 547.070. Lynch, 679 S.W.2d at 859-60.
In this case, the court suspended the imposition of sentence for Kimberley's conviction on Count I. Because no sentence was imposed, it is not a final appealable judgment. Thus, the motion to dismiss as to Count I is granted.
The State's argument that the appeal on Count II also should be dismissed is meritless. The State contends that the appeal as to this count is not ripe because there was an SIS on Count I. The State bases this argument on State v. Thomas, 801 S.W.2d at 505. The Thomas court stated: "This appeal is premature for the reason that there has been no disposition of one count of the two-count information." Id. There, however, the trial court had declared a mistrial with respect to one of the counts, and that count remained pending in the trial court at the time of appeal. Id. The Thomas court held the appeal in abeyance and remanded the cause to the trial court to dispose of that count, after which it reinstated the appeal. Id.
The Thomas case is inapposite to the case at hand. Here, there was not a mistrial. Kimberley was convicted on both counts; the court merely suspended its imposition of sentence as to Count I. The appeal cannot be held in abeyance and remanded back to the trial court for disposition on Count I, as in Thomas. Here, the disposition of Count I is suspended until the completion or revocation of Kimberley's two-year probation.
Not only is the Thomas case inapposite, but there is authority supporting Kimberley's position. In numerous Missouri cases, the appeal has been dismissed as to the SIS count, but allowed to go forward as to all other counts. See, e.g., State v. Downer, 952 S.W.2d 807, 808 n. 2 (Mo. App.1997); Hanners, 827 S.W.2d at 274; Sandbothe, 750 S.W.2d at 665-66; and State v. Williams, 682 S.W.2d 499 (Mo. App.1984). The motion to dismiss is denied as to Count II.
Kimberley contends that the court erred in denying her objection to the admission of the evidence seized when the Columbia Police Department entered the apartment. She contends the State failed to show exigent circumstances, an exception to the warrant requirement. She argues the police should have obtained a warrant before entering the apartment.
Generally, the trial court has broad discretion to admit or exclude evidence at trial. State v. Adams, 51 S.W.3d 94, 98 (Mo.App.2001)....
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