State v. Mccabe

• Decision Date: 28 June 2011
• Docket Number: No. WD 72495.,WD 72495.
• Citation: 345 S.W.3d 311
• Parties: STATE of Missouri, Respondent,v.Ricky Eugene McCABE, Appellant.
• Court: Missouri Court of Appeals

345 S.W.3d 311

STATE of Missouri, Respondent,

v.Ricky Eugene McCABE, Appellant.

No. WD 72495.

Missouri Court of Appeals, Western District.

June 28, 2011.

Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.Before Division II: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.MARK D. PFEIFFER, Judge.

Ricky Eugene McCabe (“McCabe”) appeals his conviction after a jury trial in Boone County, Missouri (“trial court”), for the class B felony of possessing a prohibited article of property in or about the premises of a county jail that may be used in such manner as to endanger the safety or security of the institution, section 221.111.1(4), RSMo Cum.Supp.2009. McCabe moved for a judgment of acquittal notwithstanding the verdict, or in the alternative, a motion for new trial. The motion was overruled, and the trial court sentenced McCabe as a prior and persistent offender to twenty-five years in the Missouri Department of Corrections. On appeal, McCabe argues that: (1) the State failed to present sufficient evidence to support his conviction; and (2) the trial court erred in refusing to instruct the jury on a lesser included offense. We affirm.

Facts and Procedural History¹

McCabe was an inmate in the Boone County Jail. The jail is divided into four pods. McCabe was housed in the C pod, which had seven “tanks” or housing units. McCabe's housing unit contained eight cells—four two-person and four one-person cells—as well as a day room and showers. McCabe was assigned to cell C–132 and had a cell mate.

On August 22, 2009, Kenton Lewis was the officer assigned “roving” duty to monitor the safety and security of the inmates in the C pod throughout the day. His duties included conducting hourly floor checks by physically going door to door and looking in each door to ensure that the inmates were safe and were not harming themselves or others. During the time McCabe was in cell C–132, between August 19 and August 22, 2009, the cell was checked by an officer approximately sixty-five times.

On August 22 at about 4:00 p.m., Officer Lewis went to McCabe's housing unit to deliver a letter to him. Another inmate a couple of cells away from McCabe's informed Officer Lewis that he heard scratching sounds coming from McCabe's cell. McCabe was standing outside his cell, and Officer Lewis noticed that McCabe was breathing heavily. When Officer Lewis entered McCabe's cell to deliver the letter, McCabe followed. As Officer Lewis was looking around the cell, he noticed fresh scratch marks in the concrete floor, concrete scraped loose above McCabe's bunk, and a small silver object in the cell's desk sandwiched between McCabe's papers. McCabe appeared nervous and positioned himself between Officer Lewis and the desk. Officer Lewis removed the object from the desk, secured it on his person, and asked McCabe to step out of the cell while he looked for anything else in the cell. Officer Lewis did not find anything else in the cell, but he did notice concrete and sand debris on the floor by McCabe's bunk and on top of his bunk where the concrete had been chipped loose. The inmates were supposed to clean the concrete floors twice a day.

The object recovered from McCabe's cell was a stainless steel shower drain cover. Drain covers are mounted to the floor in the jail housing unit showers by security screws. This drain cover had been altered by being bent over, making it easy to grasp as a weapon; with one corner fashioned into a pick that could be used to dig, stab, or otherwise puncture something or someone; and the bottom sharpened around the edges so that it was sharp enough to cut something or someone. Weapons are a subset of contraband that is forbidden inside the jail. Because it could be used as a weapon, the drain cover would not be allowed in an inmate's possession. After discovery of the object and debris, Officer Lewis moved McCabe to a different pod. As he was being moved, McCabe told Officer Lewis that he had found the object earlier and tried to get someone's attention so he could turn it in. However, Officer Lewis was in the pod the entire day, and McCabe did not notify him. McCabe spent the day in his cell, while his cell mate spent the day watching television in the day room. During floor checks earlier in the day, Officer Lewis did not notice the scraped area or debris.

McCabe appealed his disciplinary segregation, alleging that his cell was damaged when he moved in; he found the metal object when he was cleaning; he pushed the intercom button numerous times to get an officer's attention, but the officer never answered; and the metal object was not his. However, there was no intercom button in his cell because the intercom was voice-activated. His disciplinary segregation was upheld.

McCabe was criminally charged by substitute information with knowingly possessing on the premises of a county jail a prohibited article that may be used in such manner as to endanger the safety or security of the institution, damage to jail property, and attempted escape from confinement. He was convicted of the possession charge and acquitted of the other two charges. McCabe appeals.

Point I—Sufficiency of the Evidence

Standard of Review

McCabe claims that the evidence was insufficient to support his conviction. “This Court's review of a claim of insufficient evidence is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to the element of a crime beyond a reasonable doubt.” State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). In making this determination, we “accept[ ] as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence[,] and disregard[ ] all evidence and inferences to the contrary.” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)).

Analysis

McCabe alleges that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence and notwithstanding the verdict because the evidence was insufficient to prove: (1) that a shower drain cover is inherently dangerous; (2) that the manner in which the altered shower drain cover was “being used” endangered the safety or security of the jail, and (3) that he knew the altered drain cover was a “dangerous item.”

McCabe was convicted of the class B felony of possessing a prohibited article in or about the premises of a county jail that may be used in such manner as to endanger the safety or security of the institution:

1. No person shall knowingly ... have in such person's possession ... in or about the premises of any county ... jail ...:

....

(4) Any gun, knife, weapon, or other article or item of personal property that may be used in such manner as to endanger the safety or security of the institution or as to endanger the life or limb of any prisoner or employee thereof.

Section 221.111.1(4), RSMo Cum.Supp.2009. The applicable Missouri Approved Instruction that was submitted to the jury read:

INSTRUCTION NO. 5

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or between August 19, 2009, and August 22, 2009 in the County of Boone, State of Missouri, the defendant had in his possession a bent shower drain cover, and

Second, that defendant did so in the premises of the Boone County Jail, a county jail, and

Third, that the bent shower drain cover was an article that may be used in such manner as to endanger the safety or security of the institution, and

Fourth, that defendant acted knowingly with regard to the facts and circumstances submitted in this instruction,

then you will find the defendant guilty under Count I of possessing prohibited articles in or about the premises of a county jail.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, “possession” means having actual or constructive possession of an object with knowledge of its presence. A person has actual possession if such person has the object on his or her person or within easy reach and convenient control. A person has constructive possession if such person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of an object, possession is sole. If two or more persons share possession of an object, possession is joint.

MAI–CR3d 329.81 (3–1–06); MAI–CR3d 333.00 (9–1–08). Hence, to convict McCabe under section 221.111.1(4), the State was required to prove beyond a reasonable doubt that: (1) McCabe had in his possession a bent shower drain cover; (2) he did so in or about the premises of the Boone County Jail; (3) the bent shower drain cover was an article that may be used in such manner as to endanger the safety or security of the institution; and (4) he acted knowingly.

First, McCabe argues that there was insufficient evidence to prove that a shower drain is inherently dangerous and falls within the ambit of the statute. However, this issue is properly framed as it was presented to the jury: Was there sufficient evidence to determine that the altered shower drain cover was an article that may be used in such manner as to endanger the safety or security of the institution?

“ ‘Where a statute's language is clear, courts must give effect to its plain meaning and refrain from applying rules of construction unless there is some ambiguity.’ ” Ross v. Dir. of Revenue, 311 S.W.3d 732, 735 (Mo. banc 2010) (quoting Home Builders Ass'n of Greater St. Louis, Inc. v. City of Wildwood, 107 S.W.3d 235, 239 ...