State v. Taylor, ED 96299.

Decision Date21 August 2012
Docket NumberNo. ED 96299.,ED 96299.
Citation373 S.W.3d 513
PartiesSTATE of Missouri, Respondent, v. Arnold L. TAYLOR, Appellant.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Jo Ann Rotermund, St. Louis, MO, for appellant.

Mary Highland Moore, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Arnold Taylor (Defendant) appeals the judgment of the Circuit Court of the City of St. Louis following his conviction of one felony count of possession of a controlled substance with intent to distribute, two felony counts of possession of a controlled substance, one misdemeanor count of possession of drug paraphernalia with intent to use, and one misdemeanor count of possession of a controlled substance. We affirm, and remand with directions.

Background

In October or November 2009, Detective David Rudolph of the St. Louis Metropolitan Police Department received a tip from a confidential informant that three brotherswith the last name Taylor were engaging in “narcotic sales and weapons possession” out of a residence at 5029 Aubert Avenue. Detective Anthony Boettighmer, Detective Rudolph's partner, obtained a search warrant for the residence.

On November 4, 2009, with the assistance of other detectives and the St. Louis Metropolitan Police Department's “mobile reserve unit,” Detectives Rudolph and Boettighmer executed the search. After the mobile reserve unit announced the police officers' presence and broke down the front door, Detectives Rudolph and Boettighmer entered the house and observed Defendant's mother, Juanita Taylor, Defendant's brother, Michael Taylor, and a man by the name of Deandre Battle in the living room.

Meanwhile, as the mobile reserve unit broke through the front door, Detective Martin Garcia was stationed in the rear of the house. Approximately five seconds after hearing the mobile reserve team force open the front door, Detective Garcia observed Defendant sprint out of a back door of the house that opened to the basement. Detective Garcia yelled at the Defendant to stop and show his hands. Defendant stopped, and police officers detained him. Detective Garcia then walked Defendant back through the house to the living room area, where he was detained with Juanita,1 Michael, and Deandre Battle while police officers searched the house. Juanita, who owned the residence, told Detective Rudolph that Defendant slept in the basement and [had] the entire basement to himself.”

Detectives Rudolph, Boettighmer, and Garcia searched the basement. Detective Rudolph observed that there was a bed in the basement and that “it appeared somebody was sleeping in the basement.” The detectives found an open box of sandwich bags and several personal papers addressed to Defendant on a metal desk next to the bed. On the floor beside the bed, the detectives located an empty Enfamil canister containing a black digital scale, Defendant's expired Missouri identification card, five .38 caliber rounds of ammunition, two .410 caliber rounds of ammunition, and one 9–millimeter round of ammunition.

On top of a broken ceiling tile in the basement bathroom, the detectives found a “clear knotted plastic bag” containing Dormin pills, heroin, cocaine, cocaine base, and marijuana. The detectives also found a knotted plastic bag of black tar heroin in the pocket of a shirt hanging on a clothesline. After removing the access panel on the basement dryer, the detectives found “numerous knotted plastic bags of black tar heroin and also cocaine.” Under a chair cushion, the detectives located two glass plates, a razor blade, a coffee grinder, a toothbrush, and a digital scale. The detectives also found Defendant's cellular phone on a table next to the chair.

After searching the basement, the detectives went upstairs to tell Defendant what they had found. While they were listing the items, Defendant admitted that he “stay[ed] in the house and that “all the items were his.”

Detectives Rudolph and Boettighmer later interviewed Defendant again at the police station. During the interrogation, Defendant stated: [L]ook, I'm not a big, big time drug dealer, I'm a small time guy. I just sell enough to get by.” Defendant then composed a signed, written statement stating that “the heroin, cocaine, and ammo did belong to [him],” and that his brother, mother, and other family members had no knowledge of it.”

The State charged Defendant with one felony count of possession of a controlled substance with intent to distribute, two felony counts of possession of a controlled substance, one misdemeanor count of possession of drug paraphernalia with intent to use, and one misdemeanor count of possession of a controlled substance. The State charged Defendant as a prior and persistent drug offender pursuant to Sections 195.275 and 195.285, and a prior and persistent offender pursuant to Sections 557.036 and 558.016.2 At trial, Defendant recanted his written confession and insisted that he did not live at 5029 Aubert Avenue and did not know about the drugs and paraphernalia. Nevertheless, the jury found Defendant guilty on all counts. The trial court sentenced Defendant to concurrent sentences of twenty years' imprisonment on each of the felony counts and one year confinement on each of the misdemeanor counts. Defendant appeals.

Discussion

Defendant asserts five points on appeal. Defendant claims that the trial court erred by: 1) denying his motion for a judgment of acquittal because the State failed to present sufficient evidence that Defendant “purposefully and/or knowingly” possessed the controlled substances (Point I); 2) permitting the State to present hearsay testimony regarding the statements of a confidential informant at trial (Point II); 3) denying his motion to suppress evidence seized from the house at 5029 Aubert Avenue because the seizure resulted from an invalid search warrant issued without probable cause (Point III); 4) refusing to instruct the jury as to the lesser included offense of possession of a controlled substance on the count of possession of a controlled substance with intent to distribute (Point IV); and 5) finding Defendant to be a prior and persistent felony offender and prior and persistent drug offender (Point V).

1. Sufficiency of the Evidence

In Point I, Defendant contends that the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence that he was guilty of the crimes with which he was charged. More specifically, Plaintiff contends that the State did not present any evidence from which a rational trier of fact could have reached a ‘subjective state of near certitude’ that [Defendant] purposefully and/or knowingly possessed [the] drugs.”

In reviewing the sufficiency of the evidence, we limit our review “to a determination of whether there is sufficient evidence from which a reasonable fact-finder could find the defendant guilty beyond a reasonable doubt.” State v. French, 308 S.W.3d 266, 272 (Mo.App. E.D.2010). [W]e view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary.” State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). It is within the province of the jury to decide the credibility and weight of a witness's testimony. State v. White, 247 S.W.3d 557, 563–64 (Mo.App. E.D.2007). The jury may believe all, some, or none of the testimony of any witness. State v. Lee, 332 S.W.3d 267, 270 (Mo.App. E.D.2011). The jury also resolves all conflicts in the evidence, and we will not second guess the jury's judgment. White, 247 S.W.3d at 563–64.

In order to convict a defendant of possession of a controlled substance with intent to distribute, the State must prove: (1) conscious and intentional possession of the controlled substance, either actual or constructive; (2) awareness of the presence and nature of the substance; and (3) intent to distribute it.” State v. Gonzalez, 108 S.W.3d 209, 211 (Mo.App. S.D.2003). To sustain a conviction for mere possession of a controlled substance, the State need only prove the first two elements and need not prove intent to distribute. See State v. Tomes, 329 S.W.3d 400, 403 (Mo.App. E.D.2010). In this particular case, to convict Defendant of possession of drug paraphernalia with intent to use, the State was required to prove that Defendant (1) possessed drug paraphernalia; (2) with intent to use it to prepare and pack a controlled substance. SeeMo.Rev.Stat. § 195.233.1.3

Defendant first contends that the State failed to establish that Defendant had constructive possession of the contraband found at 5029 Aubert Avenue. In support of this argument, Defendant contends that the State failed to prove that Defendant lived at 5029 Aubert Avenue, there was evidence that other persons had access to 5029 Aubert Avenue, and that Defendant's mere presence at 5029 Aubert Avenue was insufficient evidence to convict him of possessing the contraband. Defendant's contentions are without merit.

Constructive possession of a controlled substance exists when a person, “although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons.” Mo.Rev.Stat. § 195.010(34). To prove constructive possession, the State must show that the defendant, at a minimum, “had access to and control over the premises where the substance was found.” State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992). In the event that there is evidence of joint control over the premises, then the State must present “further evidence” connecting the Defendant with the drugs. State v. Bristol, 98 S.W.3d 107, 111 (Mo.App. W.D.2003). This evidence can include: “self-incriminating statements; consciousness of guilt; routine access to the place where the substance was located; commingling of the controlled substance with the...

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