State v. Yahne, WD

• Decision Date: 25 February 1997
• Docket Number: No. WD,WD
• Citation: 943 S.W.2d 741
• Parties: STATE of Missouri, Respondent, v. Glenn W. YAHNE, Appellant. 52456.
• Court: Missouri Court of Appeals

Page 741

943 S.W.2d 741

STATE of Missouri, Respondent, v. Glenn W. YAHNE, Appellant.

No. WD 52456.

Missouri Court of Appeals,

Western District.

Feb. 25, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 1, 1997.

Application to Transfer Denied

May 27, 1997.

Randall B. Johnston, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, C.J., P.J., and BERREY and SMART, JJ.

BERREY, Judge.

Glenn Yahne appeals from his conviction by a jury for possession of a controlled substance pursuant to § 195.202, RSMo 1994. Appellant alleges six points of trial court error. Affirmed and remanded for correction of sentence.

On February 24, 1995, local authorities obtained a search warrant and searched appellant's property in Pettis County where they discovered methamphetamine, a large amount of cash and a number of drug-related items. This property was 7.6 acres in size and included a private family residence, which was under construction, a detached garage, and four mobile homes, one of which had been severely damaged by fire, and fifty-eight motor vehicles.

The investigators read the search warrant to appellant and advised him of his Miranda rights when they arrived. Appellant's person was searched first and $500 in cash was found. The investigators then proceeded to the padlocked garage. Appellant produced a key and the garage, which was filled with an assortment of equipment, tools, and boxes, was searched. After obtaining another key from appellant, the investigators opened a large, upright toolbox and found some tools and two locked boxes. Appellant again handed over a key to access the pair of boxes. They contained nearly $140,000 in cash. The investigators later came across another locked toolbox and, after appellant provided the key, found a triple-beam scale, two handguns and a silver metal canister. The canister held numerous clear plastic bags, several of which contained residue of a powdery substance. Laboratory tests later revealed that the bags contained 2.38 grams of methamphetamine.

Also inside the garage was found a variety of items often used in the drug manufacturing process, including small, glass bottles, a variety of glassware, a dissecting kit, a glass measuring tube, tongue depressors, among other things. Additionally, a "bong" was discovered, which is a device used for smoking marijuana. Also discovered was a jar of nicotinamide powder, which can be used to dilute the strength or purity of a drug.

Later, when asked which trailer he lived in, appellant pointed to the "northeast trailer." In that trailer and in various containers on the kitchen counter, the investigators found rolling papers, syringes, large spoons, a pair of tweezers, cotton swabs, a homemade pipe, note cards noting the prices and availability of certain chemicals, two of which are used to make methamphetamine and various other documents.

Appellant was arrested and taken to the Pettis County jail. He was interrogated until he requested an attorney. The next day, appellant was fingerprinted by a sheriff's deputy as part of the booking process. The deputy thanked appellant "for being so cooperative." Appellant responded by saying, "It's no use making it any harder on myself, I'm caught and I know it."

Appellant's pre-trial motions to suppress this statement and evidence of drug paraphernalia found on the property were denied. Similarly, the trial court denied appellant's motions in limine to suppress evidence of the cash money found in the garage and to suppress evidence of drug paraphernalia found in the northeast trailer. Appellant was convicted as a prior and persistent offender ¹ and was later sentenced to twelve and one-half years imprisonment. The trial court also denied appellant's motions for acquittal during trial and his motion for new trial. This appeal followed.

Several of appellant's points on appeal assert error by the trial court in denying his pre-trial motions. Trial court rulings on motions in limine and other pre-trial motions are interlocutory and are not directly appealable. State v. Henderson, 826 S.W.2d 371, 374 (Mo.App.1992). "A ruling on evidence will only be preserved when it is made at trial at the time the evidence is offered." Id. Therefore, since appellant did object at trial to the introduction of the challenged evidence, we will treat these points as alleged errors by the trial court in admitting the evidence.

Trial courts have broad discretion when it comes to the admission or the exclusion of evidence at trial. An appellate court will not interfere with a trial court's ruling as to the admission or exclusion of evidence absent a clear abuse of discretion. Id.

Because appellant's points I and III similarly contend that the admission of items found in the garage and the northeast trailer ² constitutes evidence of other crimes, we will consider these points together. Under point I appellant argues that the trial court erred in admitting evidence of the $140,000 in cash found on appellant's person and property. The admission of such a large sum of money in a case for possession of less than three grams of methamphetamine was, according to appellant, extremely prejudicial and far outweighed any possible relevancy. With the introduction of this evidence appellant suggests that he was "effectively charged and tried on the uncharged crime of distribution or sales of a controlled substance." Under point III appellant argues that the trial court erred in admitting drug-related items found in the garage and the northeast trailer. Appellant alleges that this is also evidence of other crimes since he was not charged with possession of drug paraphernalia, a separate crime under § 195.233, RSMo 1994, or with manufacturing a controlled substance, a separate crime under § 195.211, RSMo 1994.

Evidence of uncharged crimes is generally not admissible for the purpose of showing that the defendant has a propensity to commit such crimes. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, such evidence "is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial, and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect." Id. (citations omitted). Evidence is logically relevant when it tends to establish motive, intent, the absence of mistake, a common scheme or plan or the identity of the person charged with the commission of the crime. Id. In addition, evidence of uncharged crimes is admissible to "demonstrate defendant's knowledge of particular facts, giving inference of defendant's awareness of his or her commission of the crime charged." State v. Clover, 924 S.W.2d 853, 855 (Mo. banc 1996). See State v. Steward, 844 S.W.2d 31, 35 (Mo.App.1992).

Appellant was charged with possession of a controlled substance. Section 195.202 provides that "it is unlawful for any person to possess or to have under his control a controlled substance." To prove the elements of this offense, the State must show (1) conscious and intentional possession of a controlled substance, either actual or constructive, and (2) awareness of the presence and nature of such substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Circumstantial evidence may be used to prove both possession and knowledge. Id. In cases where, as here, there is no evidence of actual possession, constructive possession may be established by "evidence that defendant had access to and control over the premises where the substance was found." Id. at 588 (emphasis added). Other persons may have access to the area where drugs are found without destroying "the incriminating fact that a defendant has access to that area." Steward, 844 S.W.2d at 33.

A defendant who has exclusive control of property is deemed to have possession and control of any substance found on the property. State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975). In cases where there is joint control, a defendant is still deemed to have possession and control where there is additional evidence connecting him with the controlled substance. Id. (citation omitted). Here, it is uncertain whether appellant had exclusive control. But it is clear that appellant possessed the methamphetamine because it was found on his property and he provided the investigators with the keys needed to access the various toolboxes and lockboxes where the cash and drug residue were located. We now must consider whether appellant was aware of the presence and nature of the narcotic.

Appellant claims that the $140,000 was his and his wife's life savings that they had accumulated after thirty-two years of marriage. He admits that the manner in which they saved their money was somewhat unorthodox, but argues that it certainly was not illegal to maintain their savings in a locked garage rather than in a bank. We, of course, agree. Similarly, appellant argues that the items of drug paraphernalia each have innocent uses. Again, we agree. However, the discovery of the large amount of cash, drug paraphernalia and drug residue cannot be isolated from each other. ³ The State argues that the money and drug paraphernalia, when taken together, reveals that appellant was involved in the manufacture and distribution of methamphetamine and that he, therefore, necessarily had the requisite intent and knowledge to possess a controlled substance.

The State's position is supported by Steward, supra, and State v. Flenoid, 838 S.W.2d 462 (Mo.App.1992). In Steward, the defendant was convicted of possession of cocaine. In executing a search warrant at the home of the defendant and her husband, police found cocaine, Demerol, three handguns, a small scale, over $1,500 in cash and a bottle of Inositol, which is used as a cutting...