State v. Sours, s. 19719

• Decision Date: 27 May 1997
• Docket Number: Nos. 19719,21147,s. 19719
• Citation: 946 S.W.2d 747
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William Scott SOURS, Defendant-Appellant. William Scott SOURS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 747

946 S.W.2d 747

STATE of Missouri, Plaintiff-Respondent, v. William Scott SOURS, Defendant-Appellant.

William Scott SOURS, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 19719, 21147.

Missouri Court of Appeals,

Southern District,

Division One.

May 27, 1997.

Rosalynn Koch, Asst. Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GARRISON, Judge.

William Scott Sours (Appellant) appeals his jury conviction for possession of a controlled substance with intent to distribute, pursuant to § 195.211, RSMo. Supp.1990, for which he received a sentence of thirty years imprisonment as a prior and persistent offender. He also appeals the denial of his Rule 29.15 motion for postconviction relief.

On his direct appeal from the conviction (Case No. 19719), Appellant claims that the trial court erred in (1) failing to submit a verdict form on the charge of possession of a controlled substance; (2) overruling objections to questions posed by the prosecutor; and (3) overruling his motion for judgment of acquittal. On his appeal from the denial of his motion for postconviction relief (Case No. 21147), Appellant contends that his trial counsel was ineffective by failing to object to a portion of the State's closing argument. We affirm.

On October 28, 1993, Craig Ball, a Joplin, Missouri police officer working undercover, and informant Mike Weir arranged to buy one-eighth ounce of methamphetamine from Jeanette Keller for $300 and a set of electronic scales that measured in grams. According to Ball, they were to make the purchase at "her trailer." When Weir went to the front door it was answered by Appellant who acceded to Weir's request that Ball also be permitted to enter. When they went in, Weir handed the scales to Appellant, who took them to a back bedroom and closed the door. Apparently, Keller did not come out of the back bedroom for some period of time which prompted a request that Appellant tell her to hurry up. The evidence indicates that he did so. When she came out, Ball talked with Appellant while Weir bought the drugs from Keller. In response to Ball's comment about the trailer being in a wooded area and hard to find, Appellant said that he selected the location because it was out of the way was at the end of the road, and that he could see people as they approached the trailer. Appellant also went to the window, looked out, and then locked the door to the trailer.

Weir, wearing a transmitter monitored by other officers in the area, was to signal that the transaction was complete by asking to use the restroom. When he did so and entered the restroom, Appellant, along with Keller and two other females, went to the back bedroom and closed the door. The other officers entered the trailer and arrested Appellant and the others in the bedroom where they found the money Weir had delivered to Keller. They also found a mirror and the scales Weir had delivered in the adjoining bathroom. Both had methamphetamine on them.

In his first point on appeal, Appellant contends that reversible error was committed by failing to provide the jury with a verdict form permitting them to find him guilty of possession of a controlled substance, although it was submitted in a verdict directing instruction. The jury was furnished with a verdict form permitting them to find Appellant guilty of possession of a controlled substance with intent to distribute, and a form permitting them to find him "not guilty," but none by which they could find him guilty of the lesser charge. He argues that this was a violation of Note 11 of the Notes on Use for MAI-CR 3d 304.40. ¹

Note 11 provides, in pertinent part:

In preparation of all verdict forms using MAI-CR 3d 304.40, the following rules must be followed:

(a) There shall be verdict forms for each verdict directing instruction.

....

(e) A complete set of verdict forms consists of one guilty verdict form for each verdict directing instruction but only one not guilty verdict form for each count.

....

(i) The verdict should specify the offense of which a defendant is found guilty. Therefore, the Court must submit sufficient verdict forms to cover each lesser included offense submitted as to each count affecting each defendant.

The Notes on Use were not followed, in that there was no verdict form providing for a guilty verdict on the submission for possession of a controlled substance. Any deviation from the Notes on Use is error, with its prejudicial effect to be judicially determined. Rule 28.02(f); State v. Hooper, 801 S.W.2d 717, 720 (Mo.App. S.D.1990). Error alone, however, is not sufficient to require a reversal and remand. State v. Stoer, 862 S.W.2d 348, 351 (Mo.App. S.D.1993). "There must be a showing of prejudice to the appellant as a result of the error before there are grounds to upset the verdict." Id. "Prejudice," as that term is used in connection with erroneous jury instructions, is the potential for misleading or confusing the jury. Id.

In this case, Appellant did not object to the omission prior to the submission of the case being submitted to the jury, but did make the omission known after the verdict was announced and raised it as a ground for relief in his motion for new trial. When this case was tried, raising the issue in the motion for new trial was sufficient to preserve it for appeal. "Nonetheless, the cases are clear that a failure to object before submission is a factor we can properly consider in determining whether reversible error occurred." State v. Clark, 925 S.W.2d 872, 876 (Mo.App. W.D.1996).

We have concluded that the failure to provide a verdict form on the submitted charge of possession was error, but was not prejudicial and does not require a reversal and remand. The verdict directing instruction for possession told the jury: "If you do not find the defendant guilty of possession of a controlled substance with the intent to distribute as submitted in Instruction No. 5, you must consider whether he is guilty of possession of a controlled substance under this instruction." Therefore, the jury was told that it could consider the possession submission if it did not find Appellant guilty of possession with intent to distribute. Under these instructions, the only way the jury could have considered Appellant's guilt on the lesser charge would have been after failing to find him guilty of possession with intent to distribute. Here, however, the jury found Appellant guilty of the latter, and never reached the former for consideration. As indicated, Appellant's trial counsel failed to object to the omission prior to the case being submitted to the jury. He did make a record concerning the omission immediately after the jury was discharged, but did not contend that it was error.

Under these facts, we are not persuaded that there was prejudice to Appellant. This point is denied.

Appellant's second point is based on the fact that the trial court overruled his counsel's objection to questions by the State in which the trailer was referred to as "Mr.Sours'." He contends that such references had no basis in the record, were contrary to the evidence, and permitted the jury to infer that the drugs found in the trailer were also his. He refers to one instance when Officer Ball was asked if Weir was searched before they "went out there to that residence of Mr. Sours," to which Appellant objected to the prosecutor referring to the residence as "Mr. Sours'," because the evidence was that it was the residence of Ms. Keller. He also said, "object to the form." His objection was overruled after the prosecutor reminded the court of Ball's testimony that Appellant said that he was the one who selected the trailer and its location. The second incident occurred when the prosecutor asked a witness whether he was involved in the operation at "Route 6, Box 346, Joplin, Mr. Sours' residence." Appellant's counsel objected "to him classifying it as Mr. Sours' residence." This was also overruled.

No issue is raised about the sufficiency of the objection "to the form." ² The essence of Appellant's objections to these questions was his contention that the evidence demonstrated that the trailer was Ms. Keller's residence rather than his. The only evidence to which we are directed in support of that contention was the unresponsive answer of Officer Ball that they were going to drive out to "her" (referring to Ms. Keller's) trailer to make the buy. There was also evidence, however, that Appellant opened the door and invited Weir and Ball in, said that he selected the place, and locked the front door while talking to Ball.

The form of examination of a witness is a matter committed to the discretion of the court. State v. Clark, 693 S.W.2d 137, 142 (Mo.App. E.D.1985). Under the circumstances and testimony in the record here, we are unable to conclude that the court erred to Appellant's prejudice as alleged in this point. It is, therefore, denied.

In his third point, Appellant contends that the trial court erred in overruling his motion for judgment of acquittal because there was no evidence which identified him as participating in the drug transaction or possessing a controlled substance. In support, he argues that while "Scott Sours" was referred to in the testimony, there was no evidence that he was, in fact, the Scott Sours referred to by the witnesses.

At the close of the State's case, Appellant made an oral motion for judgment of acquittal in which he argued that under the evidence, constructive or actual possession of the drugs had not been proven beyond a reasonable doubt. He did not contend that there was a deficiency in the evidence concerning his identification. Additionally, after Appellant's oral motion was overruled, he introduced two exhibits and then rested. By introducing evidence in his own defense, Appellant waived any claim of error...