State v. Villa-Perez

• Decision Date: 02 June 1992
• Docket Number: VILLA-PERE,A,No. 74110,74110
• Citation: 835 S.W.2d 897
• Parties: STATE of Missouri, Respondent, v. Severinoppellant.
• Court: Missouri Supreme Court

Page 897

835 S.W.2d 897

STATE of Missouri, Respondent, v. Severino VILLA-PEREZ, Appellant.

No. 74110.

Supreme Court of Missouri,

En Banc.

June 2, 1992.

As Modified on Denial of Rehearing June 30, 1992.

Steven J. Harris, Ellen Flottman, Columbia, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Joseph P. Murray, Asst. Attys. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

PER CURIAM.

Found guilty of transporting and possessing more than 35 grams of marihuana, §§ 195.020 and 195.025, ¹ defendant's principal challenge is to the sufficiency of the evidence. We affirm.

The salient facts surrounding defendant's arrest and seizure of the marihuana are in large part undisputed. At 2:30 a.m., November 22, 1988, Officer Matt Brown of the Missouri State Highway Patrol, while patrolling Interstate I-44 in Greene County, observed a large U-Haul truck (truck) traveling in the eastbound lane. Though it did not appear to be committing a moving violation, Brown stopped the truck to determine whether it conformed to the requirements of §§ 304.170 to 304.230 inclusive, prescribing weight limits for motor vehicles on Missouri highways. Section 304.230.2 empowers "any peace officer or any highway patrol officer" to stop a vehicle subject to the weight limits "upon the public highways for the purpose of determining whether such vehicle is loaded in excess of the provisions of" the cited sections.

The truck slowed and pulled to the side of the highway at Brown's direction and as he approached the cab, the officer saw defendant for the first time. Defendant, who was the sole occupant, appeared to be a Hispanic male, and at Brown's request for a driver's license and vehicle registration, produced a Mexican national driver's license and a rental agreement for the truck. During this process, Brown, who spoke no Spanish, found it difficult to communicate with defendant who in turn appeared to have difficulty understanding English.

With the license and rental agreement in hand, Brown escorted defendant to the patrol car, where he inspected the agreement and noted it was signed by a second party in southern Oklahoma. He asked defendant if he possessed a work pass or green card and defendant showed Brown the card. In response to further questions, defendant related he had come from El Paso, Texas, and was heading to Chicago. When asked what he was hauling, defendant "said something in Spanish and shrugged his shoulders as if he did not know."

With misgivings roused by the circumstances, Brown, a thirteen year veteran of the highway patrol involved in a number of drug seizures during those years, sensed defendant might be hauling contraband. Acting on that suspicion, Brown returned to the truck and sniffed at the rear door where he detected the odor of marihuana. The cargo compartment of the truck was secured by a combination lock and Brown instructed defendant to open it. Defendant picked up the lock, turned the knob once or twice, dropped the lock then "shrugged his shoulders and kind of made a motion with his hand such that indicating he couldn't open it." Brown repeated the request and defendant again picked up the lock but again dropped it. At that juncture Brown, with a heavy crescent wrench procured from his car, broke the lock and opening the compartment, was met with the strong odor of marihuana. He lifted a carpet lying on the floor and found approximately ten packages wrapped in cellophane plus two which were broken. The packages contained 284 pounds of marihuana with an approximate "street" value of at least $250,000.

At trial Brown, summarizing a portion of the evidence which led him to suspect the truck contained drugs, recounted that defendant was a Hispanic male traveling in a rental truck, rented in the name of a second party. Defendant had very little luggage, his trip began at El Paso, a Texas border town, and his destination was Chicago. Further, defendant "appeared to be selective about his ability to understand English."

Defendant's motion to suppress the marihuana was denied and in this bench tried case, he communicated through an interpreter. The court finding defendant guilty of possessing more than 35 grams of marihuana, § 195.020, and of transporting marihuana, § 195.025, imposed consecutive prison terms of five years for possession and ten years' for transportation, and following an evidentiary hearing, the defendant's postconviction Rule 29.15 motion was denied. In defendant's consolidated appeals to the Southern District, his convictions and sentences were overturned on that court's finding that the evidence was insufficient to support the convictions. We accepted transfer and now affirm.

Defendant challenges: (1) the sufficiency of the evidence; (2) the court's refusal to suppress the marihuana because it was the product of an unreasonable search and seizure; (3) violation of defendant's equal protection rights when the officer employed defendant's "race" in formulating his suspicion that the truck was carrying drugs; (4) his two convictions under the double jeopardy doctrine; and (5) the performance of trial counsel which he contends was constitutionally ineffective.

SUFFICIENCY OF EVIDENCE

Defendant alleges the state failed to prove he "knowingly possessed more than thirty-five grams of marihuana" and that he "knowingly transported marihuana by means of a vehicle."

In reviewing these challenges, the state's evidence together with all reasonable inferences therefrom are considered in a light most favorable to the state, and any contrary evidence must be disregarded. State v. Livingston, 801 S.W.2d 344, 345 (Mo. banc 1990). The Court determines whether there was sufficient proof from which the trial court could reasonably have found defendant guilty, but does not weigh the evidence. State v. Hood, 680 S.W.2d 420, 423 (Mo.App.1984).

Possession may be proved by circumstantial evidence from which knowledge may be inferred, State v. Weide, 812 S.W.2d 866, 869 (Mo.App.1991), and in such cases, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. State v. Livingston, 801 S.W.2d at 347. ²

The record discloses proof sufficient for the trial court's finding of the essential facts supporting the conviction. Defendant, the sole occupant of the truck when stopped by the officer, had protracted exclusive control of the truck containing the proscribed substances, which alone raised an inference of knowing possession of contraband. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982); State v. Allen, 817 S.W.2d 526, 527 (Mo.App.1991). Defendant counters, arguing the cargo compartment of the truck was not within his control and directs our attention to his testimony describing events which he contends demonstrates he had no access to the cargo compartment. He insists he was shooting pool with an unidentified friend in a cantina in Juarez, Mexico, when they were approached by a stranger who asked the friend to drive a truck to and from Chicago; however, the friend was unable to accept and defendant, who had been unemployed for several days, offered to take the job. The stranger stated he would pay $500 dollars each way and when defendant agreed, he was taken to an El Paso, Texas, parking lot where the U-Haul truck waited. The cargo door was locked and defendant, who claims never to have looked inside the compartment, was told it contained furniture. He further testified that he was to drive to Chicago and meet the stranger at a designated park. Two days into the journey, defendant was stopped by Officer Brown.

As noted by the trial court, defendant's anomalous tale fairs poorly under scrutiny. It is incredible that a person would entrust more than $250,000 of marihuana to a complete stranger and ask him to drive 1,300 miles across the United States. Defendant by his own admission spoke little English and had difficulty understanding it, and there is no showing he had ever been north of the Rio Grande area much less driven to Chicago. During cross-examination, defendant admitted he did not know the stranger's name and although he was to drive to some park in Chicago, there was no prearranged time for the alleged meeting. Further, defendant had no means of contacting the stranger in Chicago, but asserts the Defendant argues that because the truck was leased to another party, because that none of defendant's personal belongings or fingerprints were found inside the cargo compartment, and because he was unable to open the combination lock when directed by the officer, it must be conceded he had no access to the compartment.

stranger would somehow approach him when he reached his destination, though he was apparently free to arrive in Chicago any day he chose. In sum, he was entrusted with a $250,000 plus marihuana cargo (of which he knew nothing) and would simply wait an indeterminate time until this stranger found him. There is little to fault the trial court's skepticism or his judgment call as to defendant's credibility.

First it should be noted defendant suggests no plausible explanation why the truck was rented in Oklahoma and apparently driven to the Mexican border to take on a load of "furniture". The fact the truck was leased to another party does not in itself absolve defendant, for as stated in State v. Barber, 635 S.W.2d 342, 343 (Mo.1982), "If actual possession has not been shown, "constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." (Emphasis added.) Further, the facts that neither defendant's personal belongings nor fingerprints were found in the cargo compartment and no marihuana was found outside the compartment, though relevant, are not conclusive. The "knowing possession" factor may be satisfied if the accused has...