State v. Sanderson, 26412.

CourtUnited States State Supreme Court of Missouri
Citation169 S.W.3d 158
Docket NumberNo. 26412.,26412.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Gerald SANDERSON, Defendant-Appellant.
Decision Date11 August 2005
169 S.W.3d 158
STATE of Missouri, Plaintiff-Respondent,
Gerald SANDERSON, Defendant-Appellant.
No. 26412.
Missouri Court of Appeals, Southern District, Division Two.
August 11, 2005.

Page 159

Amy M. Bartholow, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Gerald Sanderson ("Defendant") was charged by information with committing the class B felony of possessing, with intent to distribute, more than five grams

Page 160

of marijuana. See § 195.211.1 By amended information, the State also alleged that Defendant was a prior and persistent offender. See § 558.016. At the commencement of the trial, the judge found Defendant to be a prior offender beyond a reasonable doubt. After the jury found Defendant guilty of the charged offense, the trial court determined punishment and sentenced Defendant to a fifteen-year term of imprisonment. See § 557.036.4(2).

This appeal arises out of a traffic stop that took place on I-44 on January 21, 2004. Defendant was riding as a passenger in a blue Buick sedan driven by Dennis Vargas ("Vargas"). The car was stopped for speeding by Missouri State Highway Patrol Corporal Gary Braden ("Cpl.Braden"). During this stop, Cpl. Braden discovered 10 pounds of marijuana in the vehicle's trunk. After the marijuana was found, Defendant and Vargas were arrested. When Defendant was later searched at Troop D headquarters by Cpl. Braden, another 13.9 grams of marijuana was found in a baggie hidden in the crotch of Defendant's pants.

Defendant and Vargas were each charged with possession of a controlled substance with intent to distribute. Vargas pled guilty and was sentenced to prison. He was called as a witness at Defendant's trial. Vargas testified that Defendant knew nothing about the marijuana found in the trunk and that the 13.9 grams found in Defendant's pants was for personal use only. The jury obviously did not believe Vargas' testimony. The only issue on appeal is whether the trial court erred in overruling Defendant's motion for judgment of acquittal at the close of all of the evidence. He claims the evidence was insufficient to establish beyond a reasonable doubt that: (1) he was aware of or exercised control over the 10 pounds of marijuana found in the Buick's trunk; or (2) he intended to distribute 13.9 grams of marijuana found in his pants after he was arrested. We affirm.

I. Standard of Review

When reviewing the sufficiency of the evidence to support a criminal conviction, we give great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). In the case at bar, the issues of witness credibility and reliability were for the jury to decide. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). Therefore, we accept as true all evidence tending to prove Defendant's guilt, together with inferences favorable to the State that can be reasonably drawn therefrom. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We disregard all contrary evidence and inferences. Id. The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found that Defendant was guilty beyond a reasonable doubt. State v. Webber, 982 S.W.2d 317, 324 (Mo.App.1998).

Defendant initially filed a motion for judgment of acquittal at the close of the State's case. After the State rested, Vargas was Defendant's only witness. The State had no rebuttal evidence, and Defendant renewed his motion for judgment of acquittal at the close of all the evidence. "When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State's case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant's case." State v. Rivers,

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554 S.W.2d 548, 550 (Mo.App.1977); see State v. Parcel, 546 S.W.2d 571, 573 (Mo.App.1977). Therefore, as we review the sufficiency of the evidence to support Defendant's conviction, we will consider any evidence favorable to the State that was elicited from Vargas during Defendant's case.

II. Summary of the Favorable Evidence Presented at Trial

The State's evidence in this case consisted of testimony from Cpl. Braden; photographs of the drugs, air freshener and other items seized at the scene; a videotape of the traffic stop; and a lab report confirming that the green, leafy substance found in the trunk and in Defendant's pants was marijuana.2 As noted above, Defendant's evidence consisted solely of Vargas' testimony. The following is a summary of the evidence favorable to the jury's verdict.

Cpl. Braden's Testimony

Cpl. Braden is a road and canine officer with the Missouri State Highway Patrol. He had received specialized training in drug interdiction and the use of a drug-detecting dog because I-44 is often used as a route to transport drugs from the southwestern to the northeastern part of the United States. This portion of the interstate highway system has been described as a "drug pipeline" because this road is the route of choice for drug couriers.

At 11:00 a.m. on January 21, 2004, Cpl. Braden was parked on the eastbound shoulder of I-44 near the 52-mile marker in Lawrence County, Missouri. He was accompanied by his drug dog. The officer was using the radar device in his car to check the speed of eastbound traffic. He observed a blue Buick Park Avenue with a Texas license plate that was traveling 75 miles per hour in a 70 mile per hour zone. When Cpl. Braden pulled off of the shoulder, the Buick slowed drastically. Its speed dropped from 75 miles per hour to between 60 and 63 miles per hour. Cpl. Braden followed the Buick for three or four miles, observing the vehicle. The Buick weaved continuously in its lane as it traveled east. At one point, the car crossed the fog line and drove partially onto the shoulder of the road. Cpl. Braden became concerned that the driver was sleepy or intoxicated and might cause an accident, so he turned on his emergency lights and initiated a traffic stop. Turning on the emergency lights automatically activated a video camera inside the patrol car and created a video and audio recording of the traffic stop.

As Cpl. Braden approached the Buick, he observed a driver and a passenger sitting in the vehicle's front seats. When the driver rolled his side window down, Cpl. Braden smelled the "very very strong odor of air freshener coming from inside the car." This made Cpl. Braden suspicious that the Buick contained marijuana because the use of heavy air freshener is most prevalent in cars transporting this controlled substance. When the officer looked inside the car, he saw a bottle of air freshener in the console between the front seats. The driver was unable to produce a license because he had forgotten to bring it from his home in south Texas. He was able to produce a Texas insurance card, which identified him as Vargas.

Cpl. Braden asked Vargas to get out of his vehicle and come back to the patrol car for a computer check of his driver's license. Cpl. Braden instructed Vargas to

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sit in the front passenger seat of the patrol car. Vargas opened the door, but he remained standing outside the car and asked if he could remain there. Cpl. Braden denied the request for reasons of officer safety, cold temperature and road noise. Vargas sat down in the patrol car, but he left the car door open. At Cpl. Braden's request, Vargas finally shut the door. When he did so, Cpl. Braden smelled the very strong odor of marijuana on Vargas' person. The officer's dog also began giving indications that the scent of marijuana was present in the car.

Once Vargas was inside the patrol car, he began talking very fast, cracking jokes and jumping from one topic of conversation to another. Vargas said he lived in San Angelo, Texas, and was headed to St. Louis, Missouri, to spend a week there with his passenger's family. When Cpl. Braden asked what the passenger's name was, however, Vargas was only able to identify the person as "Gerald." Vargas did not know Defendant's last name and had only known him about three weeks. Vargas did not know the names of any members of Defendant's family, and he did not know where they were going to stay in St. Louis. He only knew that Defendant had aunts, uncles or cousins in that town. Although it was only January 21st, Vargas also said he had received his income tax refund and was using that money to pay for the trip. Cpl. Braden found these statements suspicious because: (1) San Angelo is only 200 miles from the Mexican border and is considered a source city for drugs coming from Texas that are transported to St. Louis, Missouri, on I-44; and (2) in prior drug transportation cases, he had encountered the same situation where persons traveling together did not really know much about each other.

After running the license check on Vargas, Cpl. Braden went back to the Buick to speak with Defendant. He produced an identity card which showed that he resided in Phoenix, Arizona. Defendant said he and Vargas were headed to St. Louis to spend the weekend with Defendant's family and were returning to Texas on Sunday. Defendant was very vague and brief in communicating any details of the trip to Cpl. Braden. Furthermore, Defendant's statement that they intended to leave St. Louis on Sunday conflicted with Vargas' account that he and Defendant were going to spend a week in St. Louis together. Cpl. Braden also noted that Phoenix, Arizona, is another...

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