State v. Sammons, ED 78920.

CourtCourt of Appeal of Missouri (US)
Citation93 S.W.3d 808
Docket NumberNo. ED 78920.,ED 78920.
PartiesSTATE of Missouri, Respondent, v. Karel M. SAMMONS, Appellant.
Decision Date24 December 2002

Nancy A. McKerrow, Assistant State Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Anne E. Edgington, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE G. CRAHAN, Judge.

Appellant Karel Sammons ("Defendant") appeals the judgment entered upon his conviction by a jury for two counts of the Class B felony of delivery or sale of a controlled substance. He was sentenced to two fifteen-year terms of imprisonment to be served consecutively in the Missouri Department of Corrections. We affirm in part and reverse in part.1

The facts viewed in a light most favorable to the judgment are as follows. The Northeast Missouri Narcotics Task Force had evidence that Craig Haley ("Haley") had delivered a controlled substance. In exchange for possible leniency on this charge, Haley agreed to be a confidential informant.

Haley informed investigating agent Michael Beilsmith ("Beilsmith") that he could buy crack cocaine from Defendant. Beilsmith and Haley then set up a buy from Defendant. They met at a confidential location and Beilsmith thoroughly searched Haley for drugs, money or weapons. Haley telephoned Defendant, who told him to meet him at Steve Blackburn's ("Blackburn") house in Hannibal. Beilsmith gave Haley $50.00 and placed a body wire on him. They then drove to the house and Beilsmith parked so that he could observe Haley walking toward the house, although he could not see him enter.

Defendant was already at Blackburn's house when Haley arrived. Haley told Defendant that he wanted to buy a $50.00 piece of crack and gave Defendant the money that Beilsmith had given him. Defendant told Haley he would be back in five minutes and he left the house. Beilsmith, from his car, observed a man wearing light colored pants leaving Blackburn's house, although Beilsmith could not see the man's face. Shortly thereafter, Defendant returned to Blackburn's house with a bag of crack containing several pieces. He cut a $50.00 piece and gave it to Haley. Haley then asked Defendant if he could buy a 1/16 ounce or an 8-ball and Defendant said he could "handle it." Haley said he would call Defendant later that evening and he left Blackburn's house.

Haley walked back to where Beilsmith had parked and gave him the crack cocaine, which was in a plastic wrapped package. Beilsmith wrapped the package in a piece of notebook paper with the case file written on it and put the package in his buttoned shirt pocket. Later that night, he returned to his office and properly packaged it, labeled it and sealed it.

That evening, following the same procedure, Beilsmith again dropped Haley off at Blackburn's house, after he was again searched for contraband. This time, Haley was given $100.00. Defendant was already at Blackburn's house when Haley arrived. He took Haley's money and left. After waiting approximately one hour and ten minutes for Defendant to return, Haley returned to Beilsmith's car without the money and without any drugs.

The next day, Haley viewed a photographic line-up. Haley selected Defendant's photograph as the man he dealt with. Beilsmith also turned over the package of crack cocaine to Lieutenant Joe Hunold ("Hunold") at the Hannibal Police Department. Hunold logged it into evidence and took it to the crime lab for testing. Josh Robertson, a criminalist for the Missouri Highway Patrol, tested the contents of the package and determined that it was cocaine base.

Defendant raises three points on appeal. His first point is that the trial court erred and abused its discretion when it overruled Defendant's objection to the prosecuting attorney's statements during voir dire which Defendant claims improperly defined the concept of "proof beyond a reasonable doubt." Defendant claims this ruling violated his rights to due process and a fair trial because the prosecutor's questions were not designed to probe for bias or to determine whether the panel members could follow the law, but rather were argumentative and an improper attempt to define reasonable doubt. We disagree. The prosecutor did not improperly define reasonable doubt. He merely sought a commitment from the prospective jurors that they would disregard what they may have seen on television shows about the burden of proof and follow the instructions given by the court. The trial court did not abuse its discretion in allowing this line of questioning. State v. Sineup, 674 S.W.2d 689, 690 (Mo.App.1984). Point denied.

Defendant's second contention is that the trial court erred and abused its discretion when it overruled Defendant's objection and admitted State's Exhibit 2, a baggie alleged to contain cocaine base. Defendant claims that the State failed to prove that Exhibit 2, the baggie of crack cocaine sold to Haley, was the same cocaine tested by the Missouri Highway Patrol since the State failed to establish an adequate chain of custody. We disagree.

The determination of whether the evidence is sufficient to establish a valid chain of custody for a given exhibit is within the sound discretion of the trial court. State v. Davenport, 924 S.W.2d 6, 9 (Mo.App.1996). Missouri law requires that the State provide "reasonable assurance" that an exhibit sought to be introduced is received from the defendant and is in like condition at the time of introduction as when received. State v. Clifford, 815 S.W.2d 3, 7 (Mo.App.1991). The chain of custody must also provide reasonable assurance that the evidence has not been substituted or tampered with. Davenport, 924 S.W.2d at 9. However, it does not require proof of hand-to-hand custody, a showing that the exhibit was continually watched, or proof of the exclusion of every possibility that the evidence has been disturbed. State v. Anthony, 857 S.W.2d 861, 865 (Mo.App.1993). The trial court may assume, absent a showing of bad faith, ill will or proof, that the officials charged with custody of the evidence properly discharged their duties and did not tamper with the evidence. Id. Moreover, "the chain of custody of physical evidence is irrelevant where the exhibit is positively identified." Clifford, 815 S.W.2d at 7; State v. Sullivan, 935 S.W.2d 747, 754 (Mo.App.1996). The record reflects that the criminalist positively identified Exhibit 2 at trial. Accordingly, we find no abuse of discretion in admitting this evidence. Point denied.

In his final point, Defendant contends the trial court erred in submitting Count II to the jury because the State failed to make a submissible case on that Count. Specifically, Defendant contends that the State failed to prove that he knowingly sold a controlled substance because it failed to produce any evidence that Defendant actually possessed or had access to any crack cocaine when he accepted the money from Haley. According to Defendant, since he simply took Haley's money and never returned with any drugs, the evidence merely shows an intent to steal Haley's money. If this was Defendant's intent, he could not be guilty of knowingly selling a controlled substance. We agree.

Our review of a claim of insufficient evidence is "limited to determining whether the evidence is sufficient to persuade any reasonable juror as to the elements of a crime beyond a reasonable doubt." State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). The court accepts as true all evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

The verdict director for Count II instructed the jury as follows:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about December 6, 1999, in the Township of Mason, County of Marion, State of Missouri, the defendant knowingly sold cocaine, a controlled substance, to CI 287, and

Second, that defendant knew that the substance he sold was cocaine, a controlled substance, then you will find the defendant guilty under Count II of selling a controlled substance.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Sale includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.

Mischaracterizing Defendant's argument to be a complaint that the crack cocaine was never physically transferred to Haley, the State emphasizes that "sale" includes an "offer therefor." Thus, the State argues, actual delivery is not an element of the crime. What Defendant actually argues is that the State never proved that Defendant either possessed or had access to any crack cocaine in the first place. Even if there had been a transfer, the State would have the burden of proving that what was transferred was, in fact, cocaine, thus providing an evidentiary basis for the required finding that Defendant "knowingly sold cocaine" and that he "knew that the substance he sold was cocaine."

Suppose, for example, that the State's evidence was exactly the same except that Defendant returned after a few minutes with a plastic bag filled with a substance that, upon a chemical analysis, turned out to be talcum powder. If Defendant knew the substance in the plastic bag was talcum powder, he would be guilty of stealing by deceit. If he thought it was crack cocaine, he would be guilty of attempting to sell a controlled substance.2 It may well be that the State will find it difficult to prove Defendant's state of mind. The fact remains, however, that the ambiguous evidence in this case is fully consistent with three different crimes: sale of a controlled substance, attempted sale of a...

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    ...court retransfers a case transferred by an eastern district panel's opinion found at 2004 WL 1048194, at *1); State v. Sammons, 93 S.W.3d 808, 809 n. 1 (Mo.Ct.App.2002) (supreme court retransfers a case transferred by an eastern district panel); Misischia v. St. John's Mercy Med. Ctr., 30 S......
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