State v. Roper
| Decision Date | 05 August 2008 |
| Docket Number | No. WD 66668.,WD 66668. |
| Citation | 268 S.W.3d 392 |
| Parties | STATE of Missouri, Respondent, v. David S. ROPER, Appellant. |
| Court | Missouri Court of Appeals |
Kent Denzel, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Karen Kramer, Office of Attorney General, Jefferson City, MO, for respondent.
David S. Roper ("Roper") appeals his conviction for one count of distributing a controlled substance, in violation of section 195.2111, and two counts of distributing a controlled substance near a school, in violation of section 195.214. Roper raises four points on appeal. His first point asserts that the trial court erred in entering judgment on the verdict for sale of a controlled substance near a school because the evidence was insufficient to show that Roper knew of his proximity to the school. In his second point, Roper claims that the trial court erred in allowing him to proceed without counsel. Roper's third point alleges that the trial court erred in failing to sua sponte instruct the jury to disregard the prosecutor's comments during closing argument that drugs cause "us to worry about the health and safety of our children." In his fourth point, Roper claims that he is entitled to a new trial because the State has failed to produce a tape recording of one of the transactions, which was played for the jury at trial. Roper's first three points were unpreserved and will, therefore, be reviewed for plain error.
Following are the facts viewed in the light most favorable to the verdict.
Between July and December 2003, Officer Shan Rich ("Officer Rich") participated in an undercover drug investigation in Boonville, Missouri. In July, 2003, a confidential informant told Officer Rich that he had arranged a drug transaction with Roper. When Officer Rich arrived at the agreed location, Roper was on the phone planning the sale. Officer Rich and Roper then drove to another location together at Roper's direction. Roper agreed to sell Officer Rich a quarter of an ounce of marijuana for $25. Officer Rich paid Roper, and Roper told him to wait while he obtained the drugs. Between four and five minutes later, Roper returned with a substance, which subsequent testing showed was 5.51 grams of marijuana.
In December of 2003, Officer Rich met Roper at Kluck's Hallway Bar, where Roper agreed to sell him an eight ball (an eighth of an ounce of cocaine). They went to Officer Rich's truck and negotiated a price of $150. Roper walked across the street to a bank parking lot where he spoke with someone. When he returned, Officer Rich gave him the money. Roper went back to the bank parking lot and returned a few minutes later to give Officer Rich a rock of crack cocaine. Officer Rich told Roper that it appeared to be less than an eighth of an ounce of cocaine. To compensate, Roper agreed to sell Officer Rich a quarter of an ounce of marijuana for only $20. Officer Rich gave Roper the money. Roper walked back to the bank parking lot and returned with the marijuana. Officer Rich again complained that he did not receive the correct amount, but Roper said that was all he had. Lab testing determined that Roper sold Officer Rich 0.75 grams of cocaine base and 1.51 grams of marijuana.
At trial, Officer Rich testified that he used a rolling tape to measure the distance of the December transactions to two neighborhood schools. He determined that the sales took place 1,278 feet from Laura Speed Elliott Middle School and 1,279 feet from St. Peter and Paul Catholic School. The State also entered into evidence a map of the area, which was not drawn to scale. The State did not produce evidence of Roper's knowledge of the schools' locations nor any evidence that would support an inference that Roper was aware of the schools.
Roper was charged with three counts: one count of distributing a controlled substance, in violation of section 195.211, and two counts of distributing a controlled substance near a school, in violation of section 195.214. A jury convicted Roper on all three counts. Having found Roper to be a prior and persistent offender, the trial court sentenced him to twenty-five years on all three counts, running concurrently. This appeal follows.
We review a claim of insufficient evidence to convict the defendant of the charged offense in the light most favorable to the State. State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). "Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged." Id. at 216. "Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored." Id. Because Roper did not file a motion for acquittal at the close of the evidence, his claim is unpreserved, and we may review only for plain error.
"[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20.2 Plain error is error that is evident, obvious, and clear. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App. W.D.2002). "Whether manifest injustice occurred depends on the facts and circumstances of the particular case, and the Defendant bears the burden of establishing manifest injustice amounting to plain error." State v. Campbell, 26 S.W.3d 249, 256 (Mo.App. W.D.2000). "`If the evidence is insufficient to sustain a conviction plain error affecting substantial rights is involved from which manifest injustice must have resulted.'" State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)(quoting State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999)).
In his first point on appeal, Roper claims that the trial court erred in entering judgment on the guilty verdicts for Counts I and II, sale of a controlled substance near schools, because there was no evidence of Roper's knowledge of his proximity to the schools.
Section 195.214.1 provides that:
A person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person in or on, or within two thousand feet of, the real property comprising a public or private elementary or secondary school, public vocational school, or a public or private junior college, college or university or on any school bus.
Violation of this section is "a class A felony which term shall be served without probation or parole if the court finds the defendant is a persistent drug offender." Section 195.214.2.
Section 195.211.1 makes it illegal to "distribute, deliver, manufacture, [or] produce ... a controlled substance." Violation of this section is a class B felony unless the substance is less than five grams of marijuana, in which case it is a class C felony. Section 195.211.3 & 4.
Roper claims that for a charge alleging violation of section 195.214, the State must prove the defendant knew he was within two thousand feet of a school. Citing a 1996 Missouri Supreme Court opinion applying a parallel provision, the State argues that proving the defendant's knowledge of a school's location is not required. State v. Hatton, 918 S.W.2d 790, 794 (Mo. banc 1996) ( the language of section 195.218, which prohibits drug sales near public housing). Hatton held that section 195.218 was not a separate offense and was, instead, a penalty enhancement for violating section 195.211. Id. at 794. The Court reasoned that as a penalty enhancement, "the due process clause simply does not require that the state prove appellant's knowledge of his proximity to public housing." Id.
Despite Hatton, this court has always read section 195.214 as having a knowledge requirement regarding proximity to schools. See State v. McQuary, 173 S.W.3d 663 (Mo.App. W.D.2005); State v. Crooks, 64 S.W.3d 887 (Mo.App. S.D.2002); State v. White, 28 S.W.3d 391 (Mo.App. W.D.2000). Additionally, MAI-CR 3d 325.30, the instruction for section 195.214, has required proof of a defendant's knowledge since 1998, following an amendment of the statutes regarding application of a culpable mental state.3
The conflict claimed by the State as to our decisions and the MAI instruction versus Hatton has been resolved by the Missouri Supreme Court's recent overruling of Hatton. State v. Minner, 256 S.W.3d 92 (Mo. banc 2008).
The Minner court stated that "[t]he reasoning in Hatton is not consistent with the plain language of section 195.218." Id. at 95. "The Hatton case is overruled insofar as it indicates that section 195.218 is not a separate offense and does not require the State to prove the defendant's knowledge of proximity to public housing." Id. The plain language of section 195.218, at issue in Minner, is also present in section 195.214, "[a] person commits the offense of distribution of a controlled substance near schools[.]" Section 195.214.1.
The Minner Court continued its analysis by explaining that "[t]he necessity of proving the defendant's knowledge is further established by section 562.021.3." Minner, 256 S.W.3d at 95. That statute provides that "if the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly; but reckless or criminally negligent acts do not establish such a culpable mental state." Section 562.021.3. Since neither section 195.214 nor section 195.211 mentions a requisite mental state, the State must prove that the defendant acted purposely or knowingly. "A person acts `knowingly' when he or she is aware of the nature of the conduct or that those circumstances exist." Minner, 256 S.W.3d at 95. The State...
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