State v. May

• Decision Date: 05 March 2002
• Docket Number: No. WD 58949.,WD 58949.
• Citation: 71 S.W.3d 177
• Parties: STATE of Missouri, Respondent, v. Nathaniel L. MAY, Appellant.
• Court: Missouri Court of Appeals

71 S.W.3d 177

STATE of Missouri, Respondent, v. Nathaniel L. MAY, Appellant.

No. WD 58949.

Missouri Court of Appeals, Western District.

March 5, 2002.

Kent Denzel, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., BRECKENRIDGE and ELLIS, JJ.

ULRICH, Presiding Judge.

Nathaniel L. May appeals from his conviction following a jury trial for possession of a controlled substance with the intent to deliver, section 195.211, RSMo 1998, and his sentence of five years imprisonment. As his sole point on appeal, Mr. May contends that the trial court erred by denying his motion for judgment of acquittal because the State failed to make a prima facie case. Mr. May claims that no evidence was presented that he possessed marijuana or that he intended to deliver or assist in the delivery of marijuana. The judgment of conviction is reversed.

Facts

On March 2, 1999, St. Joseph Police Detective Jeff Wilson, assigned to the Buchanan County Drug Strike Force, received a telephone call from the manager of the Oak Ridge apartment complex about suspected illegal drug activity occurring within the apartment complex. Later, after meeting with the manager of the complex, Detective Wilson contacted his supervisor on the Strike Force, Sergeant Howard Judd, and requested authorization for a "knock and talk" operation. Shortly thereafter, Sergeant Judd and two other officers accompanied Detective Wilson to Faith Mabion's apartment. Detective Wilson knocked at the apartment door. When Ms. Mabion opened the door, Detective Wilson, Sergeant Judd and another officer smelled the odor of burnt marijuana emanating from the apartment. Detective Wilson identified himself as a police officer. He told Ms. Mabion that he had information about possible illegal drug activity within the apartment and asked for permission to search her apartment. While standing in the doorway, Detective Wilson was able to observe seven other people in the apartment, including Ms. Mabion's nine-year-old daughter. Immediately upon seeing the police, the occupants sat in an upright position of attention, fidgeted, and moved about the apartment.

Ms. Mabion asked Detective Wilson to explain again what he wanted, and he again told her about the information the police had received concerning drug use within the apartment, adding that he could smell the order of burnt marijuana coming from the apartment, and he asked for consent to search. Ms. Mabion refused to grant her consent and added that the odor was incense, not marijuana. Ms. Mabion then asked Detective Wilson if he had a search warrant and he stated that he did not. The other people in the room then began yelling at Ms. Mabion to require a search warrant before entry was permitted. Sergeant Judd testified that at one point Mr. May led a couple of other occupants in a loud chant of "search warrant, search warrant, search warrant." At the same time, several of the occupants were moving around the room. Detective Wilson could see all but one person in the room from where he was standing at the door.

Mr. May was seen siting on a couch in the living room when the door to the apartment was opened. As Detective Wilson spoke to Ms. Mabion, Mr. May quickly stood up, turned around, and bent over lifting the seat cushion he had been sitting on with one hand while placing his other hand underneath the cushion. Detective Wilson could not see from where he was standing whether Mr. May had anything in his hand. Mr. May then walked across the room toward the kitchen area, acknowledging Detective Wilson by his first name at the door. As Mr. May reached the kitchen, he turned around and returned to the same couch on which he had been sitting and sat on the floor in front of it.

Mark Wilson walked into the view of the police officers at the apartment door from the dining area and yelled at Ms. Mabion several times to require the officers to get a search warrant, laughing as he did so. At this point, Mr. May got up from the floor where he was seated and joined Mark Wilson in the kitchen. Detective Wilson testified that he could only see one of Mr. May's hands as Mr. May walked into the kitchen and that the hand was empty. When in the kitchen, Mr. May and Mark Wilson went to the refrigerator and opened the door, blocking the detective's view of them. Both men were seen bending over several times as if they were getting something out of the refrigerator, but neither of them was seen drinking or putting anything into their mouths. Additionally, Detective Wilson testified that neither man had anything in his hands after the refrigerator door closed. No other occupants of the apartment entered the kitchen area while Detective Wilson spoke with Ms. Mabion.

After Ms. Mabion refused her consent to search the apartment, Detective Wilson told Ms. Mabion that the apartment door would remain open so the other officers could see inside. Detective Wilson, at the direction of Sergeant Judd, left to obtain a warrant. While Detective Wilson was obtaining the warrant, Sergeant Judd directed the other officers to enter the apartment and, for the safety of the law enforcement officers, to watch the people present. During the one to two hour wait for Detective Wilson's return, the officers in the apartment observed the occupants' movements and accompanied them to the kitchen for water or to the bathroom.

When Detective Wilson returned with a search warrant, he began his searching in the kitchen area. In the kitchen, he discovered a large trash bag containing twenty-one individually wrapped bags of marijuana totaling 45.45 grams, and a package of forty-three empty "baggies." This large trash bag was located on the floor within arm's reach of the refrigerator. According to Detective Wilson, dealers commonly use plastic bags to package illegal drugs. Marijuana is a drug packaged in this manner for street sales, Detective Wilson said.

In the living room, beneath the seat cushion that Mr. May had been seen reaching under, Detective Wilson and the officers found two bags containing a total of 50.05 grams of marijuana. The officers also found, in plain view, some small marijuana joints, or "roaches," in a bottle cap on the glass table. This was the table, according to the detective, that people in the apartment had been going back and forth to. In the bedroom, the officers found a small leaf or bud of marijuana in Ms. Mabion's shoe. The officers also seized $1,270 in cash from Mark Wilson, whom Detective Wilson said did not give Sergeant Judd a legitimate reason for his possession of that amount.

When Detective Wilson began his search of the other areas within the apartment, another officer notified him that Mr. May wanted to speak to him. The detective went to a room at the rear of the apartment with Mr. May where Mr. May asked if he would still be in trouble if someone else admitted ownership of the drugs. Detective Wilson responded that he had seen Mr. May put his hand under the seat cushion and knew the marijuana that was under it to be Mr. May's and that someone else would have to convince him that they owned that marijuana. Mr. May did not deny ownership.

Mr. May also spoke to Sergeant Judd while at the apartment. Mr. May also asked the sergeant whether he would be released if one of the other people present told the sergeant that the marijuana was his. Like Detective Wilson, Sergeant Judd also told Mr. May that he was the one who put the marijuana under the seat cushion and that it belonged to him. Again, Mr. May did not deny ownership of the drugs. Mr. May told Sergeant Judd that he did not use marijuana to the same extent that he had in the past, but that marijuana was in his system due to the "secondhand smoke" in the apartment. Mr. May also said that he could convince the owner of the marijuana to come forward and give a statement.

Soon after Detective Wilson's conversation with Mr. May, the police arrested all of the occupants of the apartment and transported them to the police station. Mr. May wanted to speak with Detective Wilson again. He told the detective essentially what he had told him while in the apartment, that someone else would admit ownership of the marijuana. He asked if that occurred whether that would clear him.

Mr. May also had another conversation with Sergeant Judd, which was essentially the same as the previous conversations he engaged in with the officers.

Following a jury trial, Mr. May was convicted of possession of a controlled substance with the intent to deliver and was sentenced to five years imprisonment upon a finding by the sentencing judge that appellant was a prior drug offender. This appeal followed.

Sufficiency of the Evidence

As his sole point on appeal, Mr. May contends that the trial court erred in denying his motion for judgment of acquittal because the State failed to make a prima facie case. He claims no evidence was presented that he possessed marijuana or that he intended to deliver or assist in the delivery of marijuana. He argues that the trial court's error denied him due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1, § 10 of the Missouri Constitution.

The State asserts that Mr. May has not preserved any error with respect to his motion for judgment of acquittal, citing Mr. May's failure to make a motion for judgment of acquittal at the close of all the evidence. Mr. May counters, however, claiming that error with respect to his motion for judgment of acquittal is preserved because his motion for new trial alleges that the evidence was "insufficient to convict."

The State is correct in its contention that Mr. May did not adequately preserve the claimed error. First, Mr. May waived any claim of error in the denial of his motion for judgment of acquittal at the close of the State's case when he subsequently...