State v. White

Decision Date22 August 2000
Citation28 S.W.3d 391
Parties(Mo.App. W.D. 2000) . State of Missouri, Respondent, v. Raymond White, Appellant. WD57470 Missouri Court of Appeals Western District Handdown Date: 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Clay County, Hon. Michael J. Maloney

Counsel for Appellant: Vanessa Caleb

Counsel for Respondent: Cheryl Caponegro Nield

Opinion Summary: Raymond White appeals from his convictions and sentences following a jury trial for delivery of a controlled substance within 2000 feet of a school and possession of a controlled substance with an intent to distribute. White claims the trial court erred in overruling his motion for judgment of acquittal because the State failed to produce sufficient evidence to prove beyond a reasonable doubt that (1) White knowingly delivered controlled substances within 2000 feet of a school, and (2) White actually or constructively possessed more than five grams of marijuana.

AFFIRMED IN PART; REVERSED IN PART; NEW JUDGMENT ENTERED; AND REMANDED FOR RESENTENCING.

Division III holds: The State failed to present sufficient evidence to prove that White knowingly delivered controlled substances within 2000 feet of a school. The State presented sufficient evidence to establish that White possessed controlled substances with an intent to deliver.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: AFFIRMED IN PART; REVERSED IN PART; NEW JUDGMENT ENTERED; AND REMANDED FOR RESENTENCING. Smith, P.J., and Lowenstein, J., concur.

Opinion:

Raymond A. White appeals from his convictions and sentences following a jury trial for three counts of delivery of a controlled substance within 2000 feet of a school, section 195.2141, and one count of possession of a controlled substance with an intent to distribute, section 195.211. The court sentenced White as a prior and persistent offender to concurrent sentences of thirty years imprisonment on each of the four counts.

Because White challenges the sufficiency of the evidence, we review the facts in the light most favorable to the verdict. State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997).

On the evening of September 29, 1998, Detective Robert Browning, an undercover officer with the Kansas City Missouri Police Department Street Narcotics Unit, went to a residence at 4141 North Winn in Kansas City, Missouri, attempting to purchase narcotics from Ishman Tice. Detective Browning knocked on the back door, and White opened the door and asked him if he was "trying to get some bud," meaning marijuana. Detective Browning told White yes, and White told him to go around to the front door. Browning went to the front door, and White invited him inside. He asked Browning what he wanted, and Browning said "20," meaning $20 worth of marijuana.

The men went into the kitchen, and White removed a bread sack from a kitchen drawer. Inside the bread sack, two other sacks each contained fifteen to twenty individually wrapped marijuana bags. White handed Browning two of the bags in exchange for a $20 bill. Browning then asked White if he ever got any "hard," referring to crack cocaine. White said yes, and he told Browning that he sells it a gram at a time for $50. White told him that if he wanted to purchase any to "just come through" because "[w]e're here all the time." Detective Browning then left the residence. Field and laboratory tests confirmed the presence of marijuana in the substance Browning purchased from White.

The following evening, September 30, 1998, Detective Browning returned to the residence at 4141 North Winn. He approached the residence as two women were leaving. As he told the women that he was there to see "Ish," White came to the door and told him to come in. Browning walked into the living room and some men in the room shut the front door and locked it. White began patting him down. Browning pushed him back and asked him what he was doing. White responded that he was making sure that he was not a police officer. Detective Browning thought White may throw a punch at him, but White just pushed his chest against Browning's shoulder. Browning told him that he was just there to get his $50 worth of crack. White said okay, and he went into the kitchen. A blanket now separated the kitchen from the living room, and White and three other men would not let Browning into the kitchen. White returned from the kitchen and handed Browning a chunk of crack. Browning set $50 on a chair next to White and left. The substance tested positive for cocaine.

The next evening, October 1, 1998, Detective Browning returned once again to the residence to make his third and final drug buy from White. Browning knocked on the door, and a man answered the door and asked whom Browning was there to see. He answered that he wanted to see "Ish," and the man let him come inside. Browning met White inside and told him that he was there to get another "50 hard," meaning crack cocaine. White said okay, and Browning then asked him how much White would charge him for an "8-ball," an 1/8 ounce of crack cocaine. White asked the other man what he thought, and he answered about $150. White went into the kitchen, then came back and handed Browning the crack in exchange for $50. Laboratory tests later confirmed the substance White gave Browning contained cocaine. The men started talking about the 8-ball again and asked Browning if he could get guns in exchange for crack. Browning told them that he could get them guns. After he left the residence, Detective Browning radioed the Street Narcotics Tactical Team, which waited in a van about a block away, to notify them that it was a "good deal." The police had previously obtained a search warrant and proceeded to execute it. The Tactical Team surrounded the residence and then entered it pursuant to the warrant. No one was seen leaving the residence during this process. White, Anthony Stanley, and Shana Sutgrey were inside the house, and the police took the three of them into custody. The police brought all three outside for a lineup, and Detective Browning identified White as the man who had sold him the drugs at each of the drug buys. Pursuant to a search of the residence, the police found 97.42 grams of marijuana in the kitchen drawer. The search also revealed money and a bag of a white powdered substance in the toilet.

At trial, Detective Reed Buente, a member of the Gang Squad of the Kansas City, Missouri Police Department, testified that he used computer mapping software to make a map of the area surrounding the residence at 4141 North Winn. The map shows the relationship of the house at 4141 North Winn to two schools in the neighborhood. Specifically, the map indicates that Eastgate Middle School is 896 feet away from the residence, and Winwood Elementary is 1920 feet away.

Detective Browning testified that the residence at 4141 North Winn is within 2000 feet of a school and that he knew the residence was this close to a school because of the department's mapping system. He testified that the computer mapping system allows a user to input any Kansas City address and receive a map of any schools in the area and the exact distance from the schools to the input address.

At the close of the State's evidence, White moved for a judgment of acquittal, arguing that the State failed to prove that White knew he was within 2000 feet of a school. The court overruled his motion.

White relied on a theory of misidentification at trial. White called Anthony Stanley as a defense witness. Stanley, who was in the residence when the search warrant was executed, testified that he saw Ishman Tice run past him and jump out a window when the police entered the residence to conduct the search. White testified in his own defense, claiming that Ishman Tice, not White, sold the detective the drugs on each of the three occasions. He also testified that Tice fled out the window when the police arrived. White claimed that he had not been to the residence at 4141 North Winn prior to October 1, 1998. White said he had known Tice for approximately one year.

In rebuttal, the State called Detective Fred Phillips of the Kansas City, Missouri Police Department. He testified that he did not see or hear anyone escape from the residence while the search warrant was being executed and that he did not see any broken or open windows. He also testified that White told him that he had known Tice for two years and that he had been frequenting the residence at 4141 North Winn for the past several months.

At the close of all evidence, White moved again for a judgment of acquittal, arguing the State failed to prove that he had knowledge of a school within 2000 feet of the residence. The court denied his motion.

The jury found White guilty of all four counts, and the court sentenced White as a prior and persistent offender to concurrent sentences of thirty years imprisonment on each count. White timely appealed.

"In determining the sufficiency of the evidence on appeal, this Court must view the evidence in the light most favorable to the verdict, accepting as true all of the State's evidence, giving the State the benefit of all inferences therefrom and disregarding all evidence and inferences contrary to a finding of guilt." Johnston, 957 S.W.2d at 747; State v. Trotter, 5 S.W.3d 188, 191 (Mo. App. W.D. 1999). Our review is limited to determining whether sufficient evidence was presented for a reasonable juror to find the defendant guilty. State v. Storey, 901 S.W.2d 886, 895 (Mo. banc 1995).

In his first point on appeal, White claims the trial court erred in overruling his motion for judgment of acquittal because the State failed to introduce sufficient evidence to prove beyond a reasonable doubt that White knowingly delivered controlled substances within 2000 feet of a school. Specifically, he asserts that the State failed to prove that he knew that the residence at...

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  • State v. McCleod
    • United States
    • Court of Appeal of Missouri (US)
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    ... ... deliver ... a controlled substance." "Section 195.010(32) defines the terms `possessed' or `possessing a controlled substance' as `a person with the knowledge of the presence and illegal nature of a substance, has actual or constructive possession of the substance.'" State v. White, 28 S.W.3d 391, 398 (Mo.App. W.D.2000). Accordingly, "[t]o sustain a conviction for possession of a controlled substance with intent to deliver, the State must prove that appellant had (1) conscious and intentional possession of the substance, either actual or constructive, (2) ... awareness of the ... ...
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