State v. Minner, No. 27757 (Mo. App. 11/7/2007)

Decision Date07 November 2007
Docket NumberNo. 27757.,27757.
PartiesState of Missouri, Plaintiff/Respondent v. Edwin W. Minner, Defendant/Appellant.
CourtCourt of Appeal of Missouri (US)

Appeal from the Circuit Court of New Madrid County, Hon. Fred W. Copeland.

Craig A. Johnston, for Appellant.

Joshua N. Corman, for Respondent.

Before Lynch, C.J., Crawford, Sr. J.

Opinion

NANCY STEFFEN RAHMEYER, Judge.

Edwin Minner ("Appellant") appeals his conviction after a jury trial in the Circuit Court of New Madrid County, Missouri, of delivery of a controlled substance within one thousand feet of public housing or other governmental assisted housing pursuant to section 195.218, RSMo Cum. Supp. 2003.1 Appellant brings six points on appeal, addressing the sufficiency of the evidence as well as constitutional violations; however, this Court finds that the evidence presented in this case is sufficient to support a conviction and that Appellant's constitutional rights were not violated. The jury's verdict is affirmed and the appeal is denied; however, we remand for correction of a clerical error in the written sentence and judgment.

Appellant has contested the sufficiency of the evidence and in reviewing the sufficiency of the evidence to support a criminal conviction, we view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). Following this standard of review, the evidence presented at trial indicates that Officer Hensley, an investigator with the New Madrid County Sheriff's Department assigned to work with the Southeast Missouri Drug Task Force, arranged for a confidential informant to make a controlled buy of drugs. The confidential informant, Julie Albright, was an informant who had performed controlled buys of drugs for Officer Hensley on multiple occasions and she had also worked with Officer Rataj from the Sikeston police department. Around 2:25 p.m., on August 16, 2004, Officers Hensley and Rataj met Albright at an undisclosed location where they prepared Albright and her car for the drug purchase. Albright was searched to ensure the integrity of the investigation. Albright's pockets, shoes, and socks were searched as well as her vehicle, including the console, ashtray, glove box, sunglasses case, seats, visors, steering wheel, floor mats, purse, cigarette package, and anything else in the car. Nothing was found. Officer Hensley testified at trial that because the informant was female he did not look under her clothing or check her undergarments. Officer Hensley also equipped Albright's car with two video cameras that were hidden in covert items, one in the front passenger seat and another in the driver's side rear window. The cameras were positioned to record anything out of the driver's side windows. Albright was then given $20 and told to drive up and down the Russell Street area in an attempt to get someone to sell her drugs. Officer Hensley then followed Albright to the area, drove down a parallel street so he could not be seen, and parked in a parking lot about three blocks away so he could watch the transaction. Officer Hensley's testimony indicates he was somewhere between four hundred to one thousand feet away.

When Albright turned onto Riley Street, she stopped her car and was approached by Appellant. Appellant then went into a residence at 315 Riley while Albright waited in the car. The residence at Riley Street was found to be where Appellant, his mother, and his cousin lived. Appellant returned to the car with crack cocaine. Albright then drove away and followed Officer Hensley back to their pre-determined location. When they returned to the location, Albright turned over the crack cocaine she had just purchased from Appellant, and her vehicle and person were again searched. The video equipment, which had been recording the entire time, was turned off and taken back by Officer Hensley to be reviewed.

Officer Hensley reviewed the videos and testified that they were a fair and accurate portrayal of what he saw that day. One of the videos, State's Exhibit 2, was a view taken from the front passenger seat looking out of the front driver's side window. The other video, State's Exhibit 3, was a recording taken from the driver's side rear window. No changes, additions, or edits had been made to either video; they were unedited from what was recorded from the car. The videos were admitted into evidence and played for the jury. Officer Hensley testified at trial that it appeared to him that it was Appellant in the videos, although when he first watched the tapes he was not one hundred percent sure that it was Appellant.

The corner of Riley and Russell Streets, where the transaction took place, was located 427.5 feet from 720 Hunter Street, a governmental assisted housing apartment operated by the New Madrid Housing Authority. Officer Hensley was able to identify the governmental assisted housing because he had a list of every house in New Madrid County that is a governmental housing unit. Scott Workman, a forensic chemist with the Missouri State Highway Patrol, tested the substance Appellant sold to Albright which tested positive for .10 grams of cocaine base.2

Prior to Appellant's arrest, Officer Hensley had spoken to Appellant about helping with the Southeast Missouri Drug Task Force. Appellant was given Officer Hensley's phone number, where he was supposed to contact Officer Hensley about working as an informant but Appellant never called. Officer Hensley went to the jail a day or two after Appellant was arrested to speak to Appellant about why he had not contacted Officer Hensley regarding the drug task force. Appellant began to talk about this case and denied his involvement. Officer Hensley told him not to worry about it; he just wanted to find out where Appellant had been and why he had not contacted Officer Hensley. After Appellant repeatedly denied his involvement in this case, Officer Hensley told Appellant that he had him on tape selling drugs but that Appellant did not need to worry about it. Appellant then stated that he usually does not sell drugs but that sometimes, when his cousin was not out on the street, he would run into the house and retrieve the dope from his cousin and bring it back outside to sell on the street for his cousin.

As a result of the foregoing evidence, the jury found Appellant guilty of the charged offense and on May 9, 2006, the court sentenced Appellant as a prior offender to eighteen years.3 This appeal followed.

I.

In his first point on appeal, Appellant contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and in sentencing him because his due process rights were violated when the State did not prove beyond a reasonable doubt that Appellant knew he was delivering crack cocaine within one thousand feet of public housing or other governmental assisted housing, as required under section 195.218, RSMo Cum. Supp. 2003. Appellant has alleged that the State did not present a submissible case to the jury because the State failed to offer any evidence that Appellant knew he was within one thousand feet of public housing or governmental assisted housing. The State does not argue that there is any evidence in the record that Appellant knew the sale was taking place within one thousand feet of public housing or governmental assisted housing. After reviewing the record, we find none either. The question presented to this Court is whether or not the State had the burden of proving that Appellant knew he was within one thousand feet of public housing or governmental assisted housing. Relying on the precedent set by the Missouri Supreme Court in State v. Hatton, 918 S.W.2d 790, 794 (Mo. banc 1996), we find that the State did not have to prove that Appellant knew he was within one thousand feet of public housing or governmental assisted housing.

Under section 195.218, "[a] person commits the offense of distribution of a controlled substance near public housing or other governmental assisted housing if he violates section 195.211" and does so within one thousand feet of public or other governmental assisted housing. Section 195.218.1, RSMo Cum. Supp. 2003. Section 195.211 indicates that it is unlawful to "distribute, deliver, manufacture or produce a controlled substance or to posses with intent to distribute, deliver, manufacture, or produce a controlled substance." Section 195.211.1. Before reaching an analysis of this issue, we note that this alleged error was not properly preserved for appeal. Appellant contends that the issue is properly preserved for appeal because he moved for a judgment of acquittal at the close of all of the evidence and then filed a timely motion for new trial, which stated that the trial court erred in overruling his motion for judgment of acquittal. It is well established, however, that a motion for judgment of acquittal, or a directed verdict, must include the specific grounds for the motion or it is otherwise insufficient to preserve the issue for appellate review. Fust v. Francois, 913 S.W.2d 38, 45 (Mo. App. E.D. 1995) (citing Dierker Associates, D.C., P.C. v. Gillis, 859 S.W.2d 737, 743 (Mo. App. E.D. 1993); Kincaid Enterprises, Inc. v. Porter, 812 S.W.2d 892, 895 (Mo. App. W.D. 1991)). The motion for new trial, although timely, likewise did not present the specific issue raised on appeal but simply refers back to the generic allegations made in the judgment of acquittal; therefore, nothing is reserved for appellate review. This Court may review the unpreserved issue for plain error affecting substantial rights under Rule 30.20, but we will only interfere with the judgment of the trial court if, under a plain error review, we find that manifest injustice or a miscarriage of justice has resulted. Rule 30.20.4 If the State...

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