State v. Madewell, 17932
| Decision Date | 04 January 1993 |
| Docket Number | No. 17932,17932 |
| Citation | 846 S.W.2d 208 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Terry Lee MADEWELL, Defendant-Appellant. |
Joseph Howlett, Howlett & Knappenberger, Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A jury found defendant guilty of conspiracy to commit distribution of methamphetamine and marijuana, and he was sentenced, as a prior and persistent offender, to imprisonment for 12 years. Defendant appeals.
Defendant's sole point is that the evidence is insufficient to support the conviction and that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence.
In reviewing defendant's challenge to the sufficiency of the evidence, this court considers the evidence and all reasonable inferences arising therefrom in the light most favorable to the verdict and disregards those portions contrary to a finding of guilt. This court does not weigh the evidence nor determine the credibility of the witnesses. The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Garrett, 829 S.W.2d 622, 624 (Mo.App.1992). After the denial of defendant's motion for judgment of acquittal, which was filed at the close of the state's evidence, defendant introduced evidence in his own behalf. Accordingly, the sufficiency of the evidence to support the conviction will be determined on the basis of all the evidence, including those portions of defendant's evidence which favor the state. State v. Thornton, 704 S.W.2d 251, 254 (Mo.App.1986).
Section 564.016 1 reads, in pertinent part:
1. A person is guilty of conspiracy with another person or persons to commit an offense if, with the purpose of promoting or facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such offense.
. . . . .
4. No person may be convicted of conspiracy to commit an offense unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
In State v. Drinkard, 750 S.W.2d 630, 631 (Mo.App.1988), the court said:
A person is guilty of conspiracy to commit an offense if: 1) he has a purpose to promote or facilitate the commission of the offense, and 2) he agrees with one or more persons that they or one of them will engage in conduct which constitutes the offense and 3) at least one member of the conspiracy commits an overt act in pursuance of the agreement.
Before a conviction for conspiracy may be obtained, proof must be adduced that an overt act in furtherance of the conspiracy was committed. However, there is no requirement that such act be a physical one or be a substantial step in the commission of the target offense. State v. Jalo, 796 S.W.2d 91, 95 (Mo.App.1990). A conspiracy conviction may be had on the uncorroborated evidence of an accomplice unless such testimony is so lacking in probative force as not to amount to substantial evidence. Id. at 96. To show a conspiracy, it is not necessary that there be direct evidence of an explicit agreement between two or more persons. The agreement can be established by circumstantial evidence and need show no more than a tacit understanding among the participants. State v. Revelle, 809 S.W.2d 444, 447 (Mo.App.1991).
A declaration by one co-conspirator in furtherance of the object of the unlawful combination is admissible on these conditions: There must be "independent and preponderant" evidence of a conspiracy between the declarant and the defendant, the declaration must be in furtherance of the object of the unlawful enterprise, and the declaration must be made while the unlawful common purpose continues to exist. State v. Anding, 689 S.W.2d 745, 753 (Mo.App.1985). Defendant on this appeal has not challenged the admissibility of any of the evidence to be recounted.
In addition to its formal portions and allegations of defendant's prior convictions, the information charged that the defendant committed the class B felony of conspiracy to distribute marijuana and methamphetamine "in that on or about the 15th day of August, 1987, in Lawrence County, Missouri, the defendant with the purpose of promoting and facilitating the offense of distribution of methamphetamine and marihuana, controlled substances, agreed with Augie Hagebusch, Robert Townsend and Joe Blackburn that they would distribute methamphetamine and marihuana, controlled substances, and on or about May 10, 1988, the defendant with the same purpose agreed with one or more of said persons to commit the offense of distribution of methamphetamine and marihuana, controlled substances, and in furtherance in the conspiracy, one or more of said persons obtained marihuana or they obtained methamphetamine, or they met to weigh or package methamphetamine."
Floyd [Augie] Hagebusch testified that there was a meeting at Jolly Mills in Barry County, attended by Joe Blackburn, Robert Townsend, Harold Huffman, defendant and the witness. Robert Townsend testified that the meeting took place in 1987. According to Hagebusch, the meeting was to "check on" a better supply of methamphetamine and marijuana. The five men were sitting at a picnic table.
Hagebusch testified: [Defendant] was head of the organization which was called "The Group"; when I got in the organization, I agreed to sell all the drugs I could get hold of; the meeting at Jolly Mills was the first meeting when there was an agreement for the distribution of drugs, and [defendant] was there; I heard what [defendant] said...
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