State v. Marshell, No. 17596

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPARRISH; PREWITT, P.J., and CROW
Citation825 S.W.2d 341
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Michael A. MARSHELL, Defendant-Appellant.
Docket NumberNo. 17596
Decision Date19 February 1992

Page 341

825 S.W.2d 341
STATE of Missouri, Plaintiff-Respondent,
v.
Michael A. MARSHELL, Defendant-Appellant.
No. 17596.
Missouri Court of Appeals,
Southern District,
Division One.
Feb. 19, 1992.
Motion for Rehearing Denied
March 10, 1992.

Page 342

Larry A. Schaffer, Independence, Catheryn B. Starke, Blue Springs, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PARRISH, Judge.

Michael A. Marshell (defendant) was convicted of the class C felony of possession of marijuana. § 195.202.2, RSMo Supp.1990. This court affirms.

This case was tried before the court without a jury after defendant waived his right to a jury trial. The trial court's findings have the force and effect of a jury verdict. Rule 27.01(b). Its judgment is to be affirmed if there is substantial evidence to support its findings. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). On appeal all evidence tending to prove defendant's guilt is accepted as true, together with all inferences favorable to the state that can be drawn from the evidence. Id. Contrary evidence and inferences are disregarded. Id.

Defendant was a passenger in a motor home driven by Samuel Hearns. Defendant was riding in the front passenger seat. Another passenger, Bobby Skaggs, was in the rear of the vehicle. The motor home was observed drifting back and forth within its lane of travel by a Missouri State Highway Patrolman. The patrolman, Sergeant Penn, stopped the motor home to see if the driver was intoxicated or sleepy. Sergeant Penn asked Mr. Hearns for his

Page 343

operator's license. He had no license. The patrolman then had Hearns leave the motor home and go to the patrolman's car. Hearns did not appear to be intoxicated. Sergeant Penn asked him where he was going. Hearns told the patrolman that he was going to Fort Wayne, Indiana, to attend his sister's wedding, but he did not know the name of the person that she was supposedly marrying. Sergeant Penn asked Hearns if the motor home belonged to him. Hearns said that it did not; that it belonged to defendant.

Sergeant Penn went to the passenger side of the motor home. Defendant stepped outside the vehicle. The patrolman asked defendant if the motor home belonged to him. Defendant said that it did not. Sergeant Penn asked defendant if he knew that Mr. Hearns did not have an operator's license. Sergeant Penn also asked defendant where the occupants of the motor home were going. Defendant answered that he had not been aware that Hearns had no license and that they were going to Fort Wayne, Indiana, to his brother's wedding. Defendant told Sergeant Penn that his brother's name was Bruce Hill, but defendant did not know the name of the person Hill was marrying.

Defendant told Sergeant Penn that he had rented the motor home the day before in Houston, Texas. After being told different reasons by Hearns and defendant for the trip to Fort Wayne and after determining that neither knew the identity of who their respective sister and brother were marrying,--Sergeant Penn had inquired to determine whether defendant's brother was marrying Mr. Hearns' sister--Sergeant Penn asked defendant if they were hauling contraband or weapons. Defendant said they were not. Sergeant Penn testified, "And I asked him if I could have permission to search the vehicle." Sergeant Penn testified that defendant responded, "Go ahead and search. I don't care."

Sergeant Penn awaited the arrival of another patrolman, Sergeant Robertson. When Sergeant Robertson arrived, Sergeant Penn had all three occupants of the motor home get outside of the vehicle. The patrolmen then proceeded to search the motor home. After looking through the kitchen area, they went to the back of the vehicle to an area where there was a bed. There was luggage lying on the bed. Sergeant Penn looked through the luggage. It contained clothing articles. He determined that the bed was constructed "on some sort of a spring system or something ... in order to make a storage compartment." Sergeant Penn lifted the bed. There were two suitcases underneath.

The patrolmen opened the suitcases. The first one had some clothing articles inside. Sergeant Penn explained, "[I]f you just brushed those aside, there was a large bundle wrapped in gray duct tape." The bundle contained marijuana. It "had layers of clear plastic and black plastic and coffee granules." The second suitcase had three smaller bundles wrapped in the same manner.

After finding the marijuana, Sergeant Penn and Sergeant Robertson went outside the motor home. Sergeant Penn arrested the three men and "read them their rights."

Sergeant Penn testified that he transported defendant to the county jail. In route, defendant "stated that ... he had made arrangements to take the marijuana to wherever they were going to sell it, and the other two men had assisted him in bundling up the marijuana and packaging it, and that, uh, he was just doing it because he needed some extra money, and that he was making about a hundred dollars a pound." There were about 54 pounds of marijuana taken from the motor home.

Defendant's first point on appeal contends that the trial court erred in finding defendant guilty "because the evidence of marijuana used to support [defendant's] conviction was illegally seized in that the search conducted by Trooper Penn exceeded the scope of the consent to search given by [defendant]."

Defendant's trial counsel characterized defendant's position with respect to the issue presented by the first point on appeal,

Page 344

stating: "He did consent. There was never any doubt about that. But the only quarrel we had was with the, if the search exceeded the scope of the consent given."

The applicable testimony regarding defendant's claim that the search exceeded the scope of his consent came from Sergeant Penn and from defendant. Sergeant Penn testified in response to questions asked by the prosecuting attorney:

Q. All right, sir. And, uh, once you had determined that, uh, the vehicle wasn't his, but was rented, and once you had determined that, uh, although they both said they were going to the same location, their reasons for being there appeared to be different, what did you do at that point in time, Dale?

A. I became suspicious of their story, and, uh, asked Mr. Marshell if they were perhaps hauling any contraband or any weapons or anything, and he stated no, they were not. And I asked him if I could have permission to search the vehicle.

Q. All right. What did he tell you?

A. He said, uh, "Go ahead and search. I don't care."

And, upon cross-examination:

Q. Now in some fashion you asked, uh, Michael Marshell if, because of the suspicion of the inconsistency of the stories, you asked Michael Marshell if, uh, he was carrying a weapon or weapons and/or drugs, isn't that correct?

A. Yes, sir.

Q. And he said no, isn't that correct?

A. Correct.

Q. And you asked him if you could look around, is that correct?

A. I asked him if I could search the vehicle.

Q. Okay. But is it fair to say, Sergeant, that you don't specifically remember exactly the words you used when you asked him if you could search the vehicle?

A. Maybe not exactly every word. I know that anytime I ask anybody to search a vehicle I make it very clear to them that, I'm going to search your vehicle, and can I have permission to search? I don't say, Can I look around?

Defendant testified:

Q. Did, uh, did Sergeant Penn indicate to you at any time that he felt your story about where you were going was different than Sammy's?

A. After he come back and asked, you know, asked me that.

Q. Did he tell you he, uh, did he ask you if you had any guns or drugs or anything in that?

A. Yes, he did.

Q. And what did you say to that?

A. No.

Q. What did, what happened right after he asked you if you had drugs or guns and...

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9 practice notes
  • State v. Kovach, No. 17749
    • United States
    • Court of Appeal of Missouri (US)
    • September 4, 1992
    ...of the witnesses are for the trial court's determination. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990); State v. Marshell, 825 S.W.2d 341, 346 (Mo.App.1992). "Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Milliorn, 794 S.W.2d 1......
  • State v. Huckin, No. 17996
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1993
    ...stop would have been justified under either conclusion, it was not unconstitutional. (Emphasis added.) Similarly, in State v. Marshell, 825 S.W.2d 341 (Mo.App.1992), defendant was found guilty of possessing marijuana. Defendant was a passenger in a motor home driven by another person. A hig......
  • State v. Melville
    • United States
    • Court of Appeal of Missouri (US)
    • November 9, 1993
    ...500 U.S. at ----, 111 S.Ct. at 1804 (quoting Ross, 456 U.S. at 820, 102 S.Ct. at 2170). The Southern District in State v. Marshell, 825 S.W.2d 341 (Mo.App.1992), allowed the police officer to search two pieces of luggage stored in a compartment under the defendants bed in his mobile home. T......
  • State v. Bigsby, No. 19324
    • United States
    • Court of Appeal of Missouri (US)
    • January 17, 1995
    ...a jury. When a defendant waives trial by jury, the trial court's findings have the force and effect of a jury verdict. State v. Marshell, 825 S.W.2d 341, 342 (Mo.App.1992); Rule 27.01(b). "[A]ppellate review is as though a verdict of guilty has been returned by a jury. If there is substanti......
  • Request a trial to view additional results
9 cases
  • State v. Kovach, No. 17749
    • United States
    • Court of Appeal of Missouri (US)
    • September 4, 1992
    ...of the witnesses are for the trial court's determination. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990); State v. Marshell, 825 S.W.2d 341, 346 (Mo.App.1992). "Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Milliorn, 79......
  • State v. Huckin, No. 17996
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1993
    ...stop would have been justified under either conclusion, it was not unconstitutional. (Emphasis added.) Similarly, in State v. Marshell, 825 S.W.2d 341 (Mo.App.1992), defendant was found guilty of possessing marijuana. Defendant was a passenger in a motor home driven by another person. A hig......
  • State v. Melville
    • United States
    • Court of Appeal of Missouri (US)
    • November 9, 1993
    ...500 U.S. at ----, 111 S.Ct. at 1804 (quoting Ross, 456 U.S. at 820, 102 S.Ct. at 2170). The Southern District in State v. Marshell, 825 S.W.2d 341 (Mo.App.1992), allowed the police officer to search two pieces of luggage stored in a compartment under the defendants bed in his mobile home. T......
  • State v. Bigsby, No. 19324
    • United States
    • Court of Appeal of Missouri (US)
    • January 17, 1995
    ...a jury. When a defendant waives trial by jury, the trial court's findings have the force and effect of a jury verdict. State v. Marshell, 825 S.W.2d 341, 342 (Mo.App.1992); Rule 27.01(b). "[A]ppellate review is as though a verdict of guilty has been returned by a jury. If there is subs......
  • Request a trial to view additional results

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