State v. Polson

• Decision Date: 12 October 2004
• Docket Number: No. WD 63189.,WD 63189.
• Citation: 145 S.W.3d 881
• Parties: STATE of Missouri, Respondent, v. Troy N. POLSON, Appellant.
• Court: Missouri Court of Appeals

145 S.W.3d 881

STATE of Missouri, Respondent, v. Troy N. POLSON, Appellant.

No. WD 63189.

Missouri Court of Appeals, Western District.

October 12, 2004.

Appeal from the Circuit Court, Clay County, Larry D. Harman, J Ellen H. Flottman, Columbia, MO, for appellant.

Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.

Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Judge.

Troy N. Polson was charged by information in lieu of indictment with one count of assault in the first degree, § 565.050¹ (Count I); one count of armed criminal action, § 571.015 (Count II); one count of possession of a controlled substance (namely, methamphetamine) with intent to distribute, § 195.211 (Count III); one count of possession of a chemical (namely, pseudoephedrine) with intent to create a controlled substance (namely, methamphetamine), § 195.420 (Count IV); and one count of possession of a methamphetamine precursor drug (namely, pseudoephedrine) with intent to manufacture methamphetamine, § 195.246, RSMo Cum.Supp.2001 (Count V). A jury found Polson guilty as charged, and the circuit court sentenced him to fourteen years imprisonment on Count I, seventeen years on Count II, fourteen years on Count III, six years on Count IV, and four years on Count V.² He appeals not only his convictions, but his sentences. We affirm in part, vacate in part, and remand for resentencing with instructions.

The sufficiency of the evidence to support Polson's convictions is at issue in this appeal only as to his conviction for first-degree assault. Viewed in the light most favorable to the verdicts, the following evidence was adduced at trial.

In the first part of 2002, Polson resided with his cousin Johnny Tye in a two-bedroom apartment in Odessa, Missouri. Around February 2002, Troy Thompson (Polson's 17-year-old son by Lois Thompson) moved to Odessa to live with Polson and Tye. Tye's bedroom was located in the northeast corner of the apartment. Polson would typically sleep in the southeast bedroom of the apartment, but also often stayed in "the city" at the El Forsteros Motorcycle Club.

Thompson knew that Polson and Tye were engaged in the business of selling drugs from the apartment, having previously witnessed drug transactions take place there and having seen Polson weigh and package doses of powdered methamphetamine using plastic baggies and fake plastic shotgun shells at the apartment. Thompson had also heard Polson speak with Tye, Matthew Carrell, or their "meth cook" Mike Adams (whom he described as Polson's "business associates") about manufacturing methamphetamine and obtaining the chemical ingredients for making methamphetamine, such as over-the-counter antihistamines and "anhydrous." Thompson also testified that although he had never seen them make any methamphetamine in his presence, he had seen Polson and Adams grinding up pseudoephedrine pills in the apartment using an electric blender provided by Adams. He explained that they had to go to multiple retail outlets like Wal-Mart, Osco, and Quik Trip to obtain the pills because "if you can get a certain amount of them, like too much, they get suspicious about it because there's a limit to them." On more than 100 occasions, Polson or Tye gave Thompson doses of powdered methamphetamine. Polson also provided acquaintances Amanda Mann and Sara Bowers with methamphetamine "a lot of times."

On the evening of March 17, 2002, Polson, Thompson, Tye, and Mann were sitting on an L-shaped couch in the living room of the apartment. All four of them had used methamphetamine provided by Polson for a few days prior to that night, and Thompson had been awake for a day or two on the high from the drug. While cleaning his fingernails with a sharp pocket knife, Polson was talking about his fear that he was going to be kicked out of the motorcycle club temporarily. When Thompson teased him about it, Polson became enraged, came at Thompson, and started stabbing at him with the knife. Polson stabbed at Thompson three times, inflicting two wounds—one to Thompson's right knee and one to his left forearm. The wound to Thompson's knee was about an inch deep and began bleeding badly, while the other wound was deep enough for Thompson to be able to see the tissue within his forearm. After stabbing Thompson, Polson yelled at him, "How dare you disrespect me like that," also admonishing him, "You know better than to talk about the club like that." Polson then told Thompson to "go clean up the blood" because he was bleeding through his pant leg onto the couch and the floor, and he went into the bathroom to tend to his wounds.

The next day, Polson told Thompson not to tell anyone about the stabbing "because he could get charged with attempted murder and get into serious trouble," but to tell anyone who asked about his wounds that he had fallen down and cut himself on some glass. Polson also disposed of Thompson's punctured and bloody jeans that day. Thompson missed the next two days of school due to the wound to his knee, as it was very painful for him to try to walk. He also limped for several weeks following the stabbing and experienced pain for about a month due to the knee wound. Thompson had visible scars from both wounds when he finally saw a doctor in May 2002, and still had a scar on his knee at the time of trial in June 2003.

On March 29, 2002, Thompson was playing pool at Double D's, a "beer bar" in Odessa. Bowers and Mann were also there and had been for several hours, and both had become "very intoxicated." Sometime between midnight and 1:30 a.m. on the morning of March 30, as the bar was closing, Thompson offered to let Bowers and Mann "crash" at the apartment for the night. The two women accepted Thompson's invitation, and Thompson drove them to the apartment. After arriving at the apartment, Thompson and Mann went to a nearby convenience store for cigarettes and food, which they brought back 10 to 15 minutes later, and the three ate in the living room. When they finished eating, the three joined Polson in his bedroom, where they all watched television. At one point, at approximately 2:00 or 2:30 a.m., Polson used a pocket knife to cut a line of powdered methamphetamine on a CD case for use by Mann, and she snorted the methamphetamine to help her sober up.

Eventually, Thompson and Mann went back into the living room to play strip poker, while Bowers and Polson stayed in the bedroom. At this time, Andrea McNew, another acquaintance of Polson's, was sitting on the couch in the living room doing a crossword puzzle. Soon thereafter, Carrell and his girlfriend Amy Smith arrived at the apartment in Tye's pickup truck. Carrell and Smith went straight to Polson's bedroom, and Polson and Carrell started whispering to each other. After Smith went back into the living room, Polson and Carrell then went into the bathroom together and closed the door. Five minutes later, the two men came out of the bathroom, with Polson returning to his bedroom and Carrell going into the living room.

While Polson and the others were in the apartment, the Lafayette County Crisis Action Team, which was comprised of local law enforcement officials for the purpose of executing high-risk search warrants, had gathered at the local high school to prepare to execute a warrant to search the apartment for the person of Polson. Around 4:00 a.m. on the morning of March 30, which was about 15 minutes after Carrell and Smith arrived and very shortly after Polson and Carrell had left the bathroom, the officers executed the search warrant. First, they secured the people located in the living room. Derrick Morgan of the Lafayette County Crisis Action Team headed back to the bedrooms, including Polson's southeast bedroom. From his vantage point just outside that bedroom, Officer Morgan saw Bowers and Polson, whereupon Polson threw a plastic shotgun shell onto the top shelf of his closet. Morgan then entered the room, yelled, "Police, search warrant" and ordered Bowers and Polson to get down on the floor. The shotgun shell which Polson had thrown into the closet rolled off the top shelf and fell to the floor, where Morgan first saw it. From that point on, Polson suddenly went totally limp, refusing to respond to police commands, closing his eyes, and refusing to open them.

As soon as all of the people in the apartment were secured, including Tye, who had been sleeping in his bedroom, a search warrant for the entire apartment was obtained based on the suspected presence of drugs in plain view. The subsequent search of the apartment revealed various drugs and other items used to manufacture and distribute methamphetamine. In Tye's bedroom and closet, the police found several baggies containing a powdery substance, including one green baggie with "Playboy bunny type of decals" on it, several imitation shotgun shells, a piece of counter-surveillance equipment, a loaded pistol, and three loaded rifles. In Polson's bedroom, they found an imitation shotgun shell on the floor next to the closet (which was later found to contain a small bag of white powdery substance), another baggie in the closet containing a white powdery substance, a coffee filter with a yellowish stain on it, a piece of aluminum, paperwork concerning the El Forsteros Motorcycle Club, an El Forsteros hat and related clothing, a spiral notebook (one page of which contained a notation "Steve Cook, DEA, head of gang transport"), and several knives, at least one of which (a silver "Cane Cutter" knife) Bowers testified had been used by Polson "to chop up dope with." In the kitchen, police found another notebook containing information about drug enforcement agents, a plastic bag with residue in it, another fake shotgun shell (which was later determined to contain "green baggies with Playboy bunnies on" them), a set of digital electronic scales, and another piece of...