State v. Moore, s. 66324

• Decision Date: 17 September 1996
• Docket Number: Nos. 66324,69598,s. 66324
• Citation: 930 S.W.2d 464
• Parties: STATE of Missouri, Respondent, v. Albert MOORE, Appellant, Albert MOORE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 464

930 S.W.2d 464

STATE of Missouri, Respondent, v. Albert MOORE, Appellant, Albert MOORE, Appellant, v. STATE of Missouri, Respondent.

Nos. 66324, 69598.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 17, 1996.

Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

Defendant, Albert Moore, appeals the judgment entered on his convictions of second degree felony murder and armed criminal action. § 565.021.1(2) ^*, § 571.015. Defendant also appeals the motion court's denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Both appeals have been consolidated for review pursuant to Rule 29.15(e). We affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial established the following facts. On May 1, 1993 the victim, Renalto Sherrad, phoned his cousins Drew and D'Mitric Nelson to inform them that he wanted to meet two men at their apartment. Sherrad arrived at the apartment sometime around 3:00 P.M., followed soon afterwards by defendant and Oscar McNeal.

McNeal and Sherrad went into a back room of the apartment while defendant waited in the living room. McNeal and Sherrad emerged from the back room a few minutes later and McNeal told defendant "it's time to go". After the two had left the apartment, Sherrad sat at the kitchen table and began to count large sums of cash.

Approximately five minutes after they left, defendant and McNeal returned to the Nelsons' apartment. McNeal told Drew Nelson that he had to talk with Sherrad and Drew let both defendant and McNeal in. McNeal sat at the table where Sherrad had been counting his money and defendant stood over McNeal's shoulder. McNeal threw down a paper bag filled with cocaine onto the table and told Sherrad "this ain't right". McNeal and Sherrad then began negotiating the terms of the transaction.

At some point during these negotiations, defendant wandered away from the kitchen table and into the living room. After about ten minutes of negotiating with Sherrad, McNeal got up from the table, talked with defendant and the two conferred with each other in the bathroom.

When defendant and McNeal returned from the bathroom, defendant pulled out a .357 magnum and pointed it at Sherrad. A struggle for the gun then ensued between defendant and Sherrad. During this struggle, the defendant inadvertently fired the gun, inflicting a mortal wound to Sherrad's face.

Defendant and McNeal picked up the cocaine and the money Sherrad had been counting on the table and left the apartment. The following day, defendant purchased a car from Joe Darby with the cash he and McNeal took from the Nelsons' apartment.

Defendant was charged with first degree murder, conventional second degree murder, second degree felony-murder (the underlying charge being possession of a controlled substance with intent to deliver), armed criminal action and unlawful use of a weapon. After a three day trial and two days of deliberations, the jury returned verdicts of not guilty on the first degree murder, conventional second degree murder and unlawful use of weapon charges. The jury, however, returned verdicts of guilty on the second degree felony-murder and armed criminal action charges. The trial court entered judgment against defendant upon the jury's verdicts.

The trial court sentenced defendant to life imprisonment on the felony-murder conviction and five years imprisonment on the armed criminal action conviction and ordered that the sentences run consecutively. The trial court imposed the sentences on defendant as a prior and persistent offender. §§ 558.016.2, 558.016.3.

Defendant filed a pro se motion for postconviction relief pursuant to Rule 29.15 in January, 1995. Appointed counsel subsequently filed an amended motion in May, 1995. The motion court denied defendant an evidentiary hearing on all but one of his allegations of ineffective counsel contained in his Rule 29.15 motion. After an evidentiary hearing on that sole allegation, the motion court denied defendant's Rule 29.15 motion in October, 1995.

Defendant, in his first point, contends the state failed to produce sufficient evidence to prove beyond a reasonable doubt that he possessed cocaine with intent to deliver. When reviewing an allegation that a jury's verdict is not supported by the evidence, we review the record in the light most favorable to the state and accept as true all evidence and inferences therefrom. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) cert denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). We will affirm the verdict if there is sufficient evidence from which a reasonable juror might have found defendant guilty beyond a reasonable doubt. Id.

Defendant's conviction of felony-murder is based on the jury's finding that Sherrad died as a result of defendant's commission of the underlying felony, possession of a controlled substance with intent to deliver. Defendant argues his conviction of felony-murder is not supported by the evidence since the state failed to prove beyond a reasonable doubt that he possessed a controlled substance. We disagree.

Defendant first argues the state failed to prove beyond a reasonable doubt that anyone possessed cocaine in the Nelsons' apartment. To sustain a conviction for possession, the State must prove (1) conscious and intentional possession of the substance, either actual or constructive, and (2) awareness of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992).

In the instant case, the investigating officers found cocaine residue on the table during their search of the crime scene. Defendant relies on State v. Baker in asserting that the presence of mere drug residue cannot support a conviction of possession. 912 S.W.2d 541 (Mo.App.1995). Defendant's reliance on Baker is misplaced.

In Baker, the Court held that the mere presence of burnt crack cocaine residue on a pipe found in the possession of defendant was not sufficient to prove defendant possessed the crack cocaine. Id. at 546. The Court reasoned that since someone besides defendant could have used the pipe to smoke crack cocaine in the past and because the crack cocaine on the pipe could not be seen by the naked eye, it could not be inferred that defendant knew the pipe contained crack cocaine. Id.

In the instant case, Drew Nelson testified that a significant amount of cocaine fell out of the bag that Oscar McNeal threw down and later retrieved from the table. This allegation is supported by the investigating officers' discovery of the cocaine residue on the table. Thus in the present case, unlike the factual situation present in Baker, the finding of cocaine residue on the table corroborates an eye witness's testimony that cocaine was present in the apartment. There was sufficient evidence to prove beyond a reasonable doubt that cocaine was present in the Nelsons' apartment.

Defendant next argues that even if cocaine was present, he did not personally possess it. The state concedes there is no evidence the defendant was in actual possession of the cocaine. However, it contends that defendant was in constructive possession of the cocaine. We agree.

The state introduced sufficient evidence to support a reasonable inference that defendant and McNeal were engaged in a joint undertaking with regard to the cocaine. The two entered the Nelsons' apartment together and left together. Defendant stood over McNeal's shoulder as he and Sherrad negotiated the terms of the transaction. Then McNeal got up from the table and conferred with defendant in private. After this conference, defendant threatened Sherrad with a gun. A reasonable jury could have inferred from this evidence that defendant was attempting to force Sherrad to capitulate to their terms of the transaction. After the shooting the two left the apartment together and got in an automobile. Although defendant had only a small amount of cash on the morning of May 1, he paid Joe Darby $1,500.00 in cash for a car the morning of May 2. The jury could reasonably conclude that the defendant received a portion of the proceeds of the attempted sale. The evidence of his interest in the attempted sale is very strong.

We believe that the governing rule is well stated in United States v. Stricklin, 534 F.2d 1386, 1390 (10th Cir.1976) cert denied 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976) as follows:

... we can reach no conclusion other than the appellants were all engaged in some joint activity relative to the marijuana and thus each and all were in constructive possession of it.

The court in United States v. Espinosa, 771 F.2d 1382, 1397 (10th Cir.1985) cert denied 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985) stated "those engaged in a joint undertaking relative to the marijuana may be found to be in constructive possession of the contraband".

Under this rule, defendant's participation in the venture shown in evidence is adequate to establish constructive possession, even though the defendant was not shown to have had the cocaine in hand. See also United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir.1995). No point is preserved as to jury instructions, and the evidence supports the verdict. Defendant's first point is denied.

Defendant asserts in his second point that the trial court erred in admitting Joe Darby's testimony, over defendant's objection, that defendant purchased a car from him in cash for $1,500 the day following Sherrad's death. Defendant asserts this testimony was...