State v. Wood

• Decision Date: 11 January 2010
• Docket Number: No. SD 29471.,SD 29471.
• Citation: 301 S.W.3d 578
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert T. WOOD, Defendant-Appellant.
• Court: Missouri Court of Appeals

301 S.W.3d 578

STATE of Missouri, Plaintiff-Respondent, v. Robert T. WOOD, Defendant-Appellant.

No. SD 29471.

Missouri Court of Appeals, Southern District, Division One.

January 11, 2010.

William J. Swift, Columbia, MO, for appellant.

Chris Koster, Atty. Gen., Robert J. Bartholomew, Asst. Atty. Gen., for respondent.

JEFFREY W. BATES, Presiding Judge.

Robert Wood (Defendant) appeals his convictions for unlawful use of drug paraphernalia and unlawful use of a weapon. He contends the evidence was insufficient to support his conviction on either offense. Because neither contention has merit, the judgment is affirmed.

In March 2008, Defendant was charged by information with committing the following offenses: Count I—the class C felony of tampering in the first degree in violation of § 569.080.1(2); Count II—the class D felony of resisting a lawful stop in violation of § 575.150.5; Count III—the class D felony of unlawful use of drug paraphernalia in violation of § 195.233 RSMo (2000); and Count IV—the class D felony of unlawful use of a weapon in violation of § 571.030.1(1).¹ Following a jury trial, Defendant was found guilty on all counts. The jury recommended a seven-year sentence on Count I and four-year sentences on Counts II-IV. The trial court followed those recommendations when imposing the sentences. The court ordered that the sentences on Counts I, II and IV run concurrently with each other and that the sentence on Count III run consecutively with the sentence on Count II.

At the close of all of the evidence, Defendant filed a motion for judgment of acquittal as to all counts. On appeal, Defendant contends the trial court erred by overruling the motion for judgment of acquittal as to Counts III and IV. In a jury-tried case, an appellate court reviews a trial court's ruling on a motion for judgment of acquittal to determine whether the State made a submissible case. This requirement is satisfied if a reasonable juror could find each element of the crime beyond a reasonable doubt. State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998); State v. Jeffries, 272 S.W.3d 883, 883 (Mo.App. 2008). In making that determination, we view the evidence and all reasonable inferences derived therefrom in a light most favorable to the verdict and disregard any contrary evidence and inferences. State v Goodin, 248 S.W.3d 127, 129 (Mo.App. 2008). "Deference should be given to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony." State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008). So viewed, the following evidence was adduced at trial.

In the latter part of August 2007, a blue 2004 Dodge Ram Quad Cab pickup truck (the pickup) was stolen from an automobile dealership in Joplin, Missouri. During the evening hours of February 2, 2008, an Anderson, Missouri police officer began pursuing two subjects in the pickup because the vehicle reportedly had stolen license plates on it. The officer requested assistance from the Missouri State Highway Patrol (MSHP). MSHP troopers Grant Hendrix (Trooper Hendrix) and Kenneth Sanders (Trooper Sanders) responded to the request for assistance.

Trooper Sanders drove his patrol car to just north of Goodman on Highway 71. He parked his vehicle on the east shoulder of Highway 71, facing north, and waited to become involved in the pursuit. Trooper Hendrix drove his patrol car south on Highway 71 toward Anderson and exited onto Highway 59. The pickup drove directly past Trooper Hendrix and turned north onto the northbound lanes of Highway 71. Trooper Hendrix followed and became the lead vehicle in the pursuit. The pickup crossed the median and began driving north in the southbound lanes of Highway 71. Trooper Sanders observed the pickup cross the median in his rearview mirror and joined the pursuit. Both troopers headed north on Highway 71, paralleling the pickup. All three vehicles were traveling approximately 100 miles per hour.

As the pickup approached the intersection of Highway 71 and Highway AA, it drove up the southbound exit ramp and turned west. Trooper Sanders also crossed the median and drove up the exit ramp. At that point, his patrol car became the lead pursuit vehicle. Trooper Hendrix exited on the northbound ramp and continued west on Highway AA behind Trooper Sanders' vehicle. The pickup turned north on Jaguar Road. It was approximately one car length ahead of Trooper Sanders. His vehicle's headlights were illuminated, and he had a spotlight shining on the pickup's back glass. Trooper Sanders saw two white males inside. The driver was wearing a dark blue hat. The passenger was wearing a red and black hat. There was a significant difference in the appearance of the two hats. Trooper Sanders used his radio to provide a description of the men.

With both troopers in pursuit, the pickup continued north on Jaguar Road, east on Highway 60 and back into the northbound lanes of Highway 71. A Newton County deputy deployed tire deflation spikes, which the pickup struck. The damage to the tires caused the vehicle to leave the highway, enter a wooded area and become wedged between several trees. The driver's side door was jammed shut by a sapling. The pickup was still running, and its headlights were illuminated.

Trooper Sanders stopped his patrol car approximately 20 yards behind and on the driver's side of the pickup. Trooper Hendrix's patrol car was directly behind Trooper Sanders' vehicle. The headlights on both patrol cars were illuminated. Trooper Sanders had not lost sight of the pickup since his radio call, and the pickup never paused long enough for the driver and passenger to switch places. Trooper Sanders exited his vehicle and saw one person run in front of the pickup's headlights, heading east. This subject was wearing a red and black hat and brown Carhart coveralls. Troopers Sanders and Hendrix followed on foot. As they ran past the pickup, they both looked inside and saw that there was no one else in the vehicle. Trooper Sanders watched the subject wearing the red and black hat go into an open field. Sometime later, this subject was found lying down in the field. He was arrested by Trooper Sanders and later identified as Billy Cushman (Cushman). When Cushman was arrested, he was wearing a red and black hat. With the aid of a heat-sensing device, the second subject was located under a cedar tree south of the pickup on the passenger side of that vehicle. This subject, who was arrested by Trooper Hendrix, was later identified as Defendant. When he was found, he was wearing a dark blue hat and a black leather coat. During a search incident to arrest, a used syringe was found in Defendant's left jacket pocket.

After placing Cushman in a patrol car, Trooper Sanders performed an inventory search of the pickup. Drug paraphernalia and a blackjack were found in the driver's side door pocket. Inside the cab, Trooper Sanders also found some marijuana, mace and a couple of knives. One was an Imperial knife in a sheath with a seven-inch blade. This knife was tucked between the driver's seat and the center seat with the handle sticking up, within the driver's easy reach and control. In the bed of the pickup, Trooper Sanders found a red duffel bag. Cushman said the bag did not belong to him. It contained tubing, duct tape, rubber gloves, coffee filters and glass pie plates with a reddish substance on them. To Trooper Sanders, these items appeared to be drug paraphernalia that could be used to manufacture methamphetamine. At his request, Sergeant James Musche (Sgt. Musche) was sent to the scene.

Sgt. Musche, a MSHP drug control officer, was trained in how to identify and clean up clandestine methamphetamine labs. In the pickup, Sgt. Musche found an unopened, one-gallon can of acetone and a red duffel bag containing approximately 20 items. The red duffel bag contained: a plastic funnel; assorted rolls of tape; used plastic tubing; leather and latex gloves; spatulas; a large, white ceramic plate covered with red phosphorus; some syringes; a film canister with crystallized iodine residue on the inside; a grinder used to crush pseudoephedrine tablets; assorted glassware; a large pyrex baking dish; a ten-cup coffee pot; coffee filters; a 20-ounce soda bottle with a yellowish clear liquid in it; a light bulb drug-smoking device; a toothbrush and part of a turkey baster. These were items of drug paraphernalia that Sgt. Musche frequently encountered in a clandestine methamphetamine lab.²

At trial, Defendant chose to represent himself pro se. During closing argument, Defendant said, "It's been stated there was a syringe found in my inside coat pocket. You want me to admit it? I'll tell you right here right now, that was mine." Defendant also admitted that the syringe was drug paraphernalia as defined by § 195.233. Finally, he told the jury that "I throughout my life have used drugs. I will not deny it."³

Point I — Unlawful Use of Drug Paraphernalia

In Defendant's first point, he contends the trial court erred in overruling Defendant's motion for judgment of acquittal filed at the close of all of the evidence. Defendant argues the evidence was insufficient to support his conviction on Count III for unlawful use of drug paraphernalia. This count charged Defendant with a violation of § 195.233, which states:

1. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of sections 195.005 to 195.425.

2. A person who violates this section is guilty of a class A misdemeanor, unless the person uses, or possesses with intent to use, the paraphernalia in combination with each other to manufacture,...