State v. Mizanskey, WD

• Decision Date: 04 April 1995
• Docket Number: No. WD,WD
• Citation: 901 S.W.2d 95
• Parties: STATE of Missouri, Respondent, v. Jeffrey G. MIZANSKEY, Appellant. 49514.
• Court: Missouri Court of Appeals

Page 95

901 S.W.2d 95

STATE of Missouri, Respondent, v. Jeffrey G. MIZANSKEY, Appellant.

No. WD 49514.

Missouri Court of Appeals,

Western District.

April 4, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Application to Transfer Denied July 25, 1995.

Randall B. Johnston, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michelle A. Freund, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, C.J., P.J., and BERREY and ULRICH, JJ.

FENNER, Chief Judge.

Appellant, Jeffrey Mizanskey, appeals his conviction after trial by jury for possession of more than five grams of marijuana with intent to deliver and distribute in violation of section 195.211.2, RSMo 1993 Supp. Mizanskey was charged as a prior and persistent drug offender and sentenced by the trial court to life imprisonment. On appeal, Mizanskey raises five points of error, the first of which, the trial court's failure to give the jury an instruction on the lesser included offense of possession of less than thirty-five grams of a controlled substance, is dispositive of the case.

The pertinent facts are as follows: On December 18, 1993, David S. Schwalm, a patrolman with the Missouri State Highway Patrol, pulled over a 1978 or 1979 Mercury Cougar with New Mexico license plates. The car was driven by Jose Reyes and contained two passengers, one of whom was Jorge Ibuado. Reyes informed Officer Schwalm that the three were en route to Sedalia, Missouri to meet with a friend. After asking for, and obtaining, consent to search the vehicle, the officer found fourteen bricks of marijuana concealed therein.

Early the next morning, December 19, 1993, Corporal James Wingo of the Missouri State Highway Patrol was called to the Johnson County Sheriff's Department, where he proceeded to speak with Reyes and Ibuado. After their discussion, Corporal Wingo transported Reyes, Ibuado, Reyes' vehicle, and one of the seized bricks of marijuana to Sedalia in an attempt to apprehend additional individuals who might have been involved in a plan to sell the illegal substance.

Corporal Wingo obtained two adjoining rooms at the Super 8 Motel in Sedalia. Reyes, Ibuado and the brick of marijuana were left in one room and, in order to monitor any events which might take place, a surveillance camera and tape recorder were set up. The surveillance team was stationed in the adjoining room.

In addition to these actions, Corporal Wingo purchased a newspaper and instructed Reyes to mark his room number upon it. This newspaper was placed under the windshield wiper of Reyes' vehicle.

Shortly after noon, Mizanskey entered the parking lot of the Super 8 Motel in his red Firebird. Mizanskey pulled up to Reyes' vehicle, exited his own vehicle, looked at the license plate on Reyes' vehicle and, allegedly, glanced at the newspaper. He then returned to his vehicle and drove off, returning approximately five minutes later accompanied by Atilano Quintana. Mizanskey once again stopped his vehicle near Reyes' vehicle, at which time Quintana exited the Firebird, removed the newspaper off Reyes' vehicle, and returned to Mizanskey's car. Mizanskey then drove his vehicle to the entrance of the hotel, parked the car and the two men proceeded to the room containing Reyes, Ibuado and the brick of marijuana.

A written transcript of the surveillance tape reveals the events that took place in the room. Although much of the discussion between Quintana, Ibuado and Reyes took place in Spanish, a language Mizanskey claims not to understand, Quintana spoke in English when addressing Mizanskey.

While in the room, Quintana asked Mizanskey when he would "come across with the funds." Mizanskey responded that someone had 'ten grand' set aside for him and that the person got off later, but that he would call him to see if he could get ahold of the money. He apparently tried to place the call, but was unsuccessful.

Later, after taking the brick of marijuana from Ibuado, Quintana handed it to Mizanskey, who held it in his hands, said about "three, four" (a gesture which the State argues shows Mizanskey was approximating the weight of the package) and returned it to Quintana. Quintana then told Mizanskey that they should see if "we can unload this real quick. And then we'll ... The car will be okay there until we are ready to unload." Mizanskey responded "that will work." As Mizanskey and Quintana prepared to leave the room, Mizanskey asked Quintana if he wanted to put "the baby" in his jacket. Quintana instead tucked the package under his own coat. Mizanskey then offered to walk beside Quintana as they left.

Shortly after they left the hotel room, Mizanskey and Quintana were arrested. After being arrested, the officers found three clear plastic bags on Mizanskey's person. Lab reports determined one of the bags contained approximately two grams of marijuana, while the other two bags contained residue of methamphetamine. At trial, Mizanskey admitted that the marijuana found in the bag was his own.

Mizanskey denied, however, any knowledge that the package Quintana handed him contained marijuana. He further claimed that he was never even aware that an illegal transaction was taking place until he was arrested. Mizanskey argued that, as far as he knew, Reyes and Ibuado had driven to Sedalia to assist Quintana in moving Quintana's sister's furniture back to New Mexico--where she had recently moved. He claims he was merely assisting Quintana, who also resided in New Mexico, meet up with Reyes and Ibuado so that they could begin moving the furniture.

With regards to the discussion of funds, Mizanskey contends he thought Quintana was asking him about how he was going to pay for two cars he and a friend were planning on purchasing, restoring, and then selling. To support his claim, Mizanskey's partner in this venture testified that the purchase of one of the automobiles was tentatively scheduled for the day of Mizanskey's arrest. Furthermore, Mizanskey claims that when he held the package in his hands and said three or four, he believed that the package contained home-made Mexican food; he was merely trying to determine the amount of food the package contained. Finally, Quintana himself appeared at trial and testified that Mizanskey had no knowledge that an exchange of marijuana had been pre-arranged or completed until after their arrest.

Lesser Included Offense

Mizanskey's first point on appeal alleges that the trial court erred by refusing to instruct the jury on the lesser included offense of possession of less than thirty-five grams of a controlled substance in addition to instruction on the charged offense of possession of greater than five grams of a controlled substance with intent to distribute. Mizanskey offered the lesser included instruction at trial and included the issue in his Motion for New Trial.

Missouri courts have consistently held that section 556.046, RSMo 1986, requires trial courts to instruct the jury on all lesser-included offenses supported by the evidence. See State v. Story, 646 S.W.2d 68, 73 (Mo. banc 1983); State v. Farley, 863 S.W.2d 669, 671 (Mo.App.1993). Failure to do so has been found to constitute error, the prejudicial effect of which is to be judicially determined. State v. Beck, 849 S.W.2d 668, 669 (Mo.App.1993). Both the facts and the instructions are to be considered together when determining prejudice. Id.

When examining whether one offense is a lesser included of the other, the analysis focuses on the elements required by the statutes proscribing the offenses, not the evidentiary facts of each case. State v. Polk, 864 S.W.2d 1, 3 (Mo.App.1993); State v. Gobble, 675 S.W.2d 944, 948 (Mo.App.1984...