State v. Miller

• Decision Date: 30 July 2004
• Docket Number: No. 25777.,25777.
• Citation: State v. Miller, 139 S.W.3d 632 (Mo. App. 2004)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jametric MILLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

139 S.W.3d 632

STATE of Missouri, Plaintiff-Respondent, v.Jametric MILLER, Defendant-Appellant.

No. 25777.

Missouri Court of Appeals, Southern District, Division Two.

July 30, 2004.

Appeal from the Circuit Court, Butler County, Mark L. Richardson, J Margaret M. Johnston, Columbia, MO, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Lisa M. Eaton, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Judge.

Jametric Miller("Defendant") was charged by amended information with the class B felony of possession of cocaine base, a controlled substance, with intent to distribute in violation of ?195.211.¹A jury found Defendant guilty of this offense.Because he was a persistent misdemeanor offender, the trial court determined punishment and sentenced Defendant to a term of ten years imprisonment.See ?558.016; ?557.036.4(2).This appeal presents a single point for our determination.Defendant contends the trial court committed plain error in two respects: (1) admitting Defendant's statements concerning his intent to sell cocaine base ("crack"); and (2) overruling Defendant's motion for judgment of acquittal at the close of all of the evidence.The basis for this contention is that the State failed to present independent proof to establish the corpus delicti of possession of a controlled substance with the intent to distribute.We affirm.

I.Standard of Review

The gist of Defendant's appeal is that there was insufficient evidence to support his conviction.He reaches this conclusion by relying on a four-pronged argument: (1) there was not enough independent proof presented to establish the corpus delicti of the crime of possessing crack with the intent to distribute; (2) absent such independent proof of the corpus delicti, his confession to police officers that he intended to sell the crack should not have been admitted in evidence; (3) without his confession, the remaining evidence adduced at trial was insufficient to support his conviction; and (4) therefore, the trial court should have sustained Defendant's motion for judgment of acquittal filed at the close of all the evidence.

Defendant concedes that he did not object to the admission of his confession at trial, and he failed to include this claim of error in his motion for new trial.Therefore, this issue is not properly preserved for appeal and may only be reviewed for plain error.SeeState v. Chavez,128 S.W.3d 569, 577(Mo.App.2004);State v. Emmert,91 S.W.3d 177, 180(Mo.App.2002).In order to be entitled to relief under the plain error rule, "[a]defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant's rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected."State v. Deckard,18 S.W.3d 495, 497(Mo.App.2000).The burden of proving the existence of such a manifest injustice or miscarriage of justice rests on defendant.SeeState v. Cole,844 S.W.2d 493, 500(Mo.App.1992).A request for plain error review requires us to go through a two-step analysis.State v. Stanley,124 S.W.3d 70, 77(Mo.App.2004).We first determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred.Id.If facially substantial grounds are found to exist, we then determine whether a manifest injustice or a miscarriage of justice has actually occurred.Id.

When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court gives great deference to the trier of fact.State v. Chaney,967 S.W.2d 47, 52(Mo. banc 1998).Reliability and credibility are issues for the jury.State v. Sumowski,794 S.W.2d 643, 645(Mo. banc 1990).Therefore, we accept as true all evidence tending to prove the defendant's guilt, together with inferences favorable to the State that can be reasonably drawn therefrom; we disregard all contrary evidence and inferences.State v. Dulany,781 S.W.2d 52, 55(Mo. banc 1989).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. Webber,982 S.W.2d 317, 324(Mo.App.1998).

The evidence favorable to the State that we consider in determining sufficiency includes that presented by Defendant during his case."When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State's case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant's case."State v. Rivers,554 S.W.2d 548, 550(Mo.App.1977);see alsoState v. Parcel,546 S.W.2d 571, 573(Mo.App.1977).The same holds true for Defendant's assertion that the State failed to present sufficient independent evidence of the corpus delicti.The State's proof is sufficient if the essential elements of the crime were proven by the end of the trial.SeeState v. Evans,992 S.W.2d 275, 285(Mo.App.1999);State v. Page,580 S.W.2d 315, 318-19(Mo.App.1979);State v. Easley,515 S.W.2d 600, 602-03(Mo.App.1974).We have utilized these principles to prepare the following summary of the evidence presented at trial.

II.Facts and Procedural History

On the afternoon of October 17, 2002, Defendant and Al Miller("Al") were together in a section of Poplar Bluff known as "the Hill."²This is an area of the city where illegal drugs, including crack, are so frequently sold and used that the Poplar Bluff Police Department received a $100,000 Department of Justice grant for enhanced police patrols and drug enforcement arrests in this specific part of town.³Defendant purchased 2.09 grams of crack from a person named Joey and hid the drugs inside his pants.Defendant and Al then went to a store, and Al purchased a drink, some candy and a box of 150 sandwich baggies.

After Defendant and Al left the store, they walked down Garfield Street and turned onto Alice Street.Once they turned the corner, they were seen by several Poplar Bluff drug enforcement officers who had parked their cars at the intersection of Alice and Jefferson Streets and were engaged in arresting other persons for drug offenses.Defendant and Al were stopped by the officers, one of whom discovered the unopened box of sandwich baggies in Al's possession and laid it on top of one of the police cars.Defendant was approached by another officer, Corey Mitchell("Officer Mitchell"), who engaged in small talk with Defendant.Officer Mitchell asked Defendant if he had anything on him, and Defendant said, "I don't have anything on me.Go ahead and search me."

During the search, Officer Mitchell discovered the bag of crack, which Defendant had hidden between the cheeks of his buttocks inside his pants.Defendant was then arrested.This took place within 15 minutes of the time Defendant purchased the crack.Further search of his person revealed that he also had cigarettes, a lighter and some money.Although crack is usually ingested by smoking it in a pipe, Defendant did not have a crack pipe in his possession.The amount of crack seized from Defendant exceeded the amount Officer Mitchell would normally find on someone who was holding the drug for their personal use.The quantity of crack in Defendant's possession could be broken down and resold as individual "rocks" that cost $20 to $50.Such individual rocks are usually packaged in small pieces of plastic, such as sandwich baggies, by being tightly knotted inside the plastic and then clipped off.

Officer Mitchell placed Defendant in a police car and transported him to the police station for booking.During the trip, Defendant was advised of his Miranda rights, which he voluntarily waived.⁴When Officer Mitchell asked Defendant if the substance in the bag was crack, he responded, "It better be."Defendant said he had paid $80 for the crack and was going to make $200 on it.He and Al intended to break down the crack into smaller quantities and use the sandwich baggies to package the drug for resale.Defendant identified the person who sold him the drugs and described his vehicle to Officer Mitchell.

When Defendant arrived at the station, he was booked.The booking room of the police station is equipped with audio and video recording equipment, which was operating during part of the time Defendant was being booked.On the videotape, Defendant repeated much of what he had said to Officer Mitchell during the trip by car to the station.

At trial, Defendant admitted he was guilty of knowingly possessing crack.His position was that he only bought the crack for his own personal use, and he did not intend to resell any of it.His contrary, incriminating statements were presented through the testimony of Officer Mitchell and the playing of the booking videotape.Defendant did not object to the admission of his statements on either occasion.His attorney did file a motion for judgment of acquittal at the close of the State's evidence and at the close of all of the evidence.Both motions, which were overruled, alleged that the evidence failed to establish the corpus delicti.

The case was submitted to the jury with instructions authorizing the return of a guilty verdict for possession of crack with the intent to distribute and the lesser-included offense of possession of crack.The jury found Defendant guilty of the more serious offense.

In Defendant's motion for new trial, there was no specific allegation of error that his incriminating statements were improperly admitted because the corpus delicti of the crime had not been established.The motion was overruled, and the aforementioned judgment of conviction and sentence was entered by the trial court.Defendant filed a timely notice of appeal.

III.Discussion and Decision

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