State v. Thurmond

• Decision Date: 06 October 2020
• Docket Number: No. ED 108253,ED 108253
• Citation: 616 S.W.3d 316
• Parties: STATE of Missouri, Respondent, v. Brenda THURMOND, Appellant.
• Court: Missouri Court of Appeals

616 S.W.3d 316

STATE of Missouri, Respondent,

v.Brenda THURMOND, Appellant.

No. ED 108253

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: October 6, 2020

Application for Transfer Denied March 2, 2021

For Appellant: Chad Flanders, 100 N. Tucker Blvd., St. Louis, MO 63101.

For Respondent: Kristen S. Johnson, 221 W. High St., Jefferson City, MO 65101.

KURT S. ODENWALD, Judge

Introduction

Brenda Thurmond ("Thurmond") appeals from the trial court's judgment following a jury trial convicting Thurmond of possession of a controlled substance. In Point One, Thurmond contends the trial court plainly erred in failing to sua sponte interrupt the State's comments during voir dire which Thurmond argues minimized the beyond-a-reasonable-doubt standard. In Point Two, Thurmond argues the trial court erred in denying her motion for a judgment of acquittal at the close of all evidence because insufficient evidence showed Thurmond was aware of the presence and the nature of the methamphetamine found in her purse. In her final point on appeal, Thurmond maintains the trial court plainly erred in allowing the State to argue that Thurmond's exercise of her right to trial made her an unsuitable candidate for probation and in considering that argument in its decision to impose a seven-year sentence and deny probation.

Because the State did not improperly define the beyond-a-reasonable-doubt standard during voir dire, the trial court did not plainly err in declining to sua sponte interject. Because the record contains sufficient evidence that Thurmond actually possessed the methamphetamine and was aware of its presence and nature, sufficient evidence supported her conviction such that the trial court did not err in denying her motion for a judgment of acquittal. Because the record does not show that Thurmond was sentenced and denied probation because she exercised her right to trial, the trial court did not engage in improper retaliatory sentencing. Accordingly, we affirm the judgment of the trial court.

Factual and Procedural History

Viewing the evidence in the light most favorable to the jury's verdict, State v. Gilmore, 537 S.W.3d 342, 344 (Mo. banc 2018), on December 18, 2015, police officers arrived at Thurmond's residence with an arrest warrant for a third party. Thurmond allowed the police officers into her home to search for the wanted individual, whom the police officers failed to locate. However, during the search, the police officers came to believe there were narcotics or narcotic paraphernalia in the residence. Thurmond consented in allowing the police officers to search the residence for narcotics.

During their search of the apartment, police officers found three glass smoking pipes with residue, two digital scales, and a container with multiple plastic bags. The container found was of the type often used to store narcotics. One of the pipes was found in plain view on the kitchen table. The kitchen was a small room just inside the front door of the residence. A purse was on the kitchen table and Thurmond told the police officers the purse belonged to her. Thurmond consented to the police officers’ search of her purse. The police officers found two plastic bags containing methamphetamine in Thurmond's purse.

Thurmond was in the kitchen at the time the officers searched her purse.

Thurmond's son lived at the residence with Thurmond. The record contains no evidence that anyone other than Thurmond and her son lived at or had been staying at the residence, or that anyone other than Thurmond was present at the residence during the search.

In September 2018, the State charged Thurmond with one count of possession of a controlled substance for knowingly possessing methamphetamine with knowledge of its presence and nature.

The case proceeded to trial. During voir dire, the State discussed the beyond-a-reasonable-doubt standard:

Now, as the -- as the Court explained earlier, briefly, and you'll get a jury instruction on this, but the State's burden of proof in this case is proof beyond a reasonable doubt. But that does not mean proof beyond all doubt. Now, is there anybody here who believes that burden of proof is not strong enough? In other words, is there somebody here who believes I should have to prove it beyond a shadow of a doubt or 200 percent or any other thing you've got in your mind other than what the judge said?

No venire-person responded. The State continued, also eliciting no response:

Is there anybody here who believes that proof beyond a reasonable doubt is not a strong enough standard to hold the State to? If so, please raise your hand....

All right. On the other side, is there anybody here who believes that's too high? That, you know, we ought to be able to convict somebody of a crime on a lower standard than that? If so, please raise your hand.

The State elaborated further:

Now, you have to remember that these are common sense English instructions. This isn't magic. It's not legal mumbo-jumbo. Okay. You're going to be given instructions that tell you what to do. And these are all things you can do in your regular life.

You can evaluate the credibility of a witness. You're doing it a hundred times a day, every time you interact with somebody. Okay.

You're asked to find whether or not you're firmly convinced of something, whether or not you believe it beyond a reasonable doubt. Again, you do that kind of thing all the time. It's not a magic thing you only do in court. It is something that you are being called on your common sense to determine whether you are firmly convinced, okay.

That's all you're being asked to do with following that jury instruction. It's -- it's -- it's not as difficult as any lawyer can make it sound with all the embellishment.

Thurmond did not object and the State moved off of the subject.

Following trial, the jury found Thurmond guilty of possession of a controlled substance.

The sentencing assessment report ("SAR") recommended Thurmond receive probation. At sentencing, the State recommended a seven-year sentence and, contrary to the SAR, argued against probation:

And I think from the State's point of view, probably the most telling thing about all this, because the SAR, I do want to address it, they came back and they said, well we think you should put her on probation and put her in the drug court in Crawford County.

And the most telling thing to me is that after we had this trial, you may remember this, Judge, or you asked about bond. And we basically agreed that we were going to raise her bond because of the guilty verdict.

....

And she decided just to pay the extra money rather than to let anyone supervise her activities.

And that to me is very telling, because I think she very clearly did not want anyone monitoring her, making her do drug tests, anything like that. She doesn't want to change her life. She has no interest in that.

And I, for my part, over a year before the trial, had recommended drug court if she had wanted it and had wanted to get help. But you cannot force somebody to get help.

And the reality is she goes and she has a trial. That's her right to do. But, you know, don't come to me now and say, well, I should get a chance to try to get clean on probation or go to drug court or whatever, when you didn't want help.

It was like pulling teeth, even in that SAR it sounds like to get her to open up about any kind of drug problem that she ever had, even unrelated to the charges that were pending before us.

Following this argument, the trial court noted that Thurmond had three other pending cases and asked the State how it believed those pending cases should affect the court's decision regarding Thurmond's eligibility for probation. The State responded that in light of the other cases, even if the sentencing court was to follow the SAR, "I don't think in the long run it's probably doing [Thurmond] very much of a favor[.]" Thurmond proceeded to argue in favor of probation. The trial court concluded:

Ms. Thurmond, I am sorry. I do not think you are a good candidate for probation. And a lot of this is because I don't know what's going on with you right now, but you've got way too much stuff going on all over the place. So I don't know what's going on. But I -- but I think that you are not a good candidate for probation. I'm sorry. I'm following the State's recommendation on this today.

The trial court sentenced Thurmond to seven years in prison without probation. This appeal follows.

Points on Appeal

In Point One, Thurmond asserts the trial court plainly erred in failing to sua sponte correct the State's minimization of the beyond-a-reasonable-doubt standard during voir dire. In Point Two, Thurmond argues the trial court erred in denying her motion for a judgment of acquittal because there was insufficient evidence to show that Thurmond was aware of the presence and nature of the methamphetamine found in her purse. In Point Three, Thurmond claims the trial court plainly erred in allowing the State to argue that Thurmond's exercise of her right to trial made her an unsuitable candidate for probation and in considering that argument in its decision to impose a seven-year sentence and deny Thurmond probation.

Discussion

I. Point One—The State's Discussion of the Burden of Proof

Thurmond first challenges the State's commentary during voir dire regarding its burden of proof. Thurmond maintains that the trial court committed reversible plain error by failing to sua sponte interrupt the State when the State seemingly minimized its burden of proving Thurmond's guilt beyond a reasonable doubt.

A. Standard of Review

Thurmond did not object to the State's comments about the standard for its burden of proof during voir dire. Because Thurmond raised no objection, Point One is not preserved, and we may only review it for plain error. See Rule 30.20;¹ State v. Muhammad, 478 S.W.3d 468, 474 (Mo. App. W.D. 2015) (citing State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011) ) (additional citation omitted). We...