State v. Neher, No. SC 87860.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Per Curiam
• Citation: 213 S.W.3d 44
• Decision Date: 09 January 2007
• Docket Number: No. SC 87860.
• Parties: STATE of Missouri, Respondent, v. Brian Edwin NEHER, Appellant.

213 S.W.3d 44 STATE of Missouri, Respondent,
v.
Brian Edwin NEHER, Appellant. No. SC 87860. Supreme Court of Missouri, En Banc. January 9, 2007. Rehearing Denied February 27, 2007.

[213 S.W.3d 45]

Kent Denzel, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

PER CURIAM.¹

Introduction

The State charged Brian Neher with five drug offenses. Neher waived a jury

213 S.W.3d 46

and was tried by the court. The court found Neher guilty of four of the offenses as charged and a lesser included offense of the fifth offense that was charged. Neher complains that the court violated his right to be free from double jeopardy by finding him guilty of the lesser included offense and that the evidence seized pursuant to the search warrant should not have been admitted because there was insufficient probable cause to support the warrant. Neither complaint is well taken. The judgment is affirmed.

Facts

A confidential informant called the Barton County sheriff concerning Brian Neher. On the basis of the call, the sheriff applied for a warrant to search Neher's home. In an affidavit attached to the warrant application, the sheriff stated:

Your affiant, being a duly sworn peace officer in the State of Missouri, received a phone call from a reliable confidential informant on today's date of 08-30-2004, about [Defendant] who resides at 4 SE 95th Rd in Barton County. [Defendant] lives in a white trailer house, which is approximately a 16x60 and lives on a dead end road in Barton County. It is better described as the first trailer house west of the railroad tracks, and it is the trailer house right next to his parents house on 95th rd. The confidential informant has previously given information to your affiant which has been corroborated and found to be reliable.

The confidential informant contacted your affiant, Sheriff William A Griffitt on today's date of 08-30-2004 and stated that [Defendant] was cooking meth late last night (8/29-30/04). The confidential informant also stated that [Defendant] has all the chemicals used in the manufacturing methamphetamine. The confidential informant also stated that he also is in possession of paraphernalia for the manufacturing and use of methamphetamine.

[Defendant] is a known drug user, and manufacturer in Barton and Jasper Counties, and also has a criminal history for possession of controlled substance. One of his associates who was at the residence on 08-29-2004, was a Carl Dale Carter who also has an extensive criminal history involving dangerous drugs including Methamphetamine. Carl Dale Carter was arrested for possession of a control substance on 02-07-2000 in Barton County.

The application and affidavit were reviewed by a judge, who issued a warrant to search Neher's premises after finding probable cause to believe methamphetamine and drug paraphernalia were being kept there.

On the day the warrant issued, police officers executed it. During the search, the officers seized methamphetamine, marijuana and numerous items of drug paraphernalia from Neher's home.² Thereafter,

213 S.W.3d 47

Neher was arrested and charged with committing five offenses, including possession of methamphetamine with intent to deliver in violation of section 195.211 (count II).³

Prior to trial, Neher moved to suppress all evidence obtained during the search of his trailer, alleging that the affidavit attached to the warrant application was insufficient to establish probable cause for the search. The trial court concluded the sheriff could have inferred that the confidential informant's information was based on personal observation, even though that fact was not expressly stated. Therefore, under the totality of the circumstances, there was a substantial basis for concluding the affidavit contained sufficient information to establish a fair probability that the search would uncover evidence of criminal activity. The court overruled the motion to suppress.

Neher waived his right to a jury trial, and the court tried the case. The State offered the items seized during the search of Neher's residence. Neher objected on the same grounds presented in his motion to suppress. The court overruled the objection and admitted the items in evidence. The State rested its case, and Neher presented no evidence. After both parties waived closing arguments, the court engaged in the following colloquy with counsel:

THE COURT: At this time, the Court is going to find [Neher] guilty of Counts I, III, IV and V. I will find him not guilty as to Count II.

[PROSECUTOR]: Are you doing lesser included offense on two?

THE COURT: Do you wish to submit a lesser included offense under Count II? The Court finds that there has not been sufficient evidence to find attempt [sic] to deliver.

[PROSECUTOR]: I guess I am so requesting.

THE COURT: .... As to what lesser included offense?

[PROSECUTOR]: Class C felony possession of controlled substance, without the intent part of it.

THE COURT: [Defense Counsel], any comments?

[DEFENSE COUNSEL]: Judge, actually it is my understanding that the Court is free to find the defendant guilty at a bench trial of lesser included offenses. So, as long as they are actually lesser included offenses, and obviously simple possession is one.

THE COURT: The Court does believe that there is sufficient evidence to find, under Count II, to enter a finding of guilty to a lesser included offense the Class C felony of possession of controlled substance, Methamphetamine.

The court sentenced Neher to concurrent sentences of ten years on count I, five years on count II, and four years on each of counts III, IV and V.

213 S.W.3d 48

Double Jeopardy

As his first point, Neher contends the trial court committed plain error in finding him guilty on count II of the lesser-included offense of possession of a controlled substance. According to Neher, the court violated his federal constitutional rights to be protected from double jeopardy by finding him guilty of the lesser-included possession offense.⁴

Neher failed to preserve his double jeopardy claim for appellate review and seeks plain error review. The right to be free from double jeopardy is a constitutional right that goes to the very power of the State to bring the defendant in the court to answer the charge brought against him. Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992). A guilty plea does not waive a subsequent claim of a double jeopardy violation if it can be determined from the face of the record that the sentencing court had no power to enter the conviction or impose the sentence. Id. Similarly, such a claim that can be determined from the face of the record is entitled to plain error review on appeal after trial. The record in this case permits such review.

Under the facts of this case, possession of methamphetamine in violation of section 195.202 is a lesser-included offense of possession of methamphetamine with intent to deliver in violation of section 195.211. See Cason v. State, 987 S.W.2d 357, 358 (Mo.App.1999). The court had the inherent power to convict Neher of the lesser-included possession offense, even if neither party asked the court to do so. See State v. Kohser, 46 S.W.3d 108, 111-13 (Mo.App.2001); Haddock v. State, 75 S.W.3d 872, 876-77 (Mo.App.2002). In determining whether a double jeopardy violation occurred, the substance of the trial court's ruling, rather than its form, is examined to determine its precise nature. State v. Smith, 988...