Opinion
No. WD 58982
December 11, 2001
Appeal from the Circuit Court of Callaway County, Missouri Honorable Ellen S. Roper, Judge.
Elizabeth U. Carlyle, Esq., Lee's Summit, MO, 64063, for Appellant.
Philip M. Koppe, Esq., Kansas City, MO, for Respondent.
Before Newton, P.J., Lowenstein and Smart, J.J.
Jared R. Derenzy appeals from his conviction of one count of delivery of a controlled substance within 2,000 feet of a school under § 195.214 RSMo 2000 following a jury trial in Callaway County. The defense was entrapment. Derenzy was sentenced as a prior offender, § 558.016.2, to a term of ten years' imprisonment.
All further statutory references are to RSMo 2000 unless indicated otherwise.
Factual and Procedural History
Richard Scott Ferrari was an undercover narcotics investigator for the Missouri State Highway Patrol in the Spring of 1999. He met with Officer Steve Myers of the Fulton Police Department with the aim of investigating drug activity at Westminster College. Myers introduced Ferrari to a confidential informant who took Ferrari around the local bars, parties, fraternity houses, etc. Ferrari held himself out as an "out-of-city person" employed by the informant's family. At a local bar, the informant introduced Ferrari to the appellant. The informant asked the appellant "if there was anything he could get for [his] friend." The appellant was reluctant to respond, but said "he might be able to help him out." When the bar was closing, the informant again approached the appellant and asked him the same question, but at trial the informant could not recall the appellant's response.
Soon afterwards, the informant and Ferrari went to the appellant's residence. Ferrari carried a hidden, microcassette recorder. Ferrari could smell marijuana smoke, and within a minute of arriving, the appellant asked for a lighter so they could consume marijuana. Ferrari pretended to smoke the marijuana with the appellant and one of the appellant's friends, Nathan Anderson, and made general conversation. Ferrari then indicated that he wanted to buy a quarter of an ounce of marijuana. The appellant reached under the coffee table and pulled a plastic bag of marijuana out of a purple and gold Crown Royal bag. According to Ferrari, the appellant then broke off pieces of marijuana and put them in a plastic bag. Ferrari testified that he asked the appellant how much he wanted, and the appellant indicated that he wanted $10. Ferrari testified that he gave the appellant $10, took the marijuana, and left about ten minutes later. Before he left, Ferrari asked the appellant whether he might buy more marijuana from him later, and the appellant gave him his home telephone number.
Anderson, who was also at the appellant's home that night, testified on behalf of the defense. Specifically, he testified that Ferrari had to ask the appellant several times to sell marijuana and that the appellant had been reluctant to sell him any marijuana. A recording of the drug transaction was also introduced into evidence.
Further facts are set forth as necessary.
Analysis
Derenzy presents four points on appeal: 1) the trial court erred in denying his judgment for acquittal because the evidence was insufficient to prove that he knew that the location where the delivery occurred was within 2,000 feet of a school; 2) the trial court erred in refusing to instruct the jury on the lesser-included offense of possession of marijuana; 3) the trial court erred in failing to grant a mistrial when Ferrari testified that he had information that the appellant had engaged in previous drug sales; and 4) the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove that he was not entrapped.
I.
The appellant's first argument is that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove that he knew that he delivered drugs within 2,000 feet of a school under § 195.214.
Section 195.214 states in relevant part:
A person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person in or on, or within two thousand feet of, the real property comprising a public or private elementary or secondary school, public vocational school, or a public or private junior college, college or university or on any school bus.
When reviewing a challenge to the sufficiency of the evidence in a criminal conviction, "evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may be reasonably drawn from the evidence are indulged." State v. Summers , 43 S.W.3d 323, 327 (Mo.App. 2001)(citation omitted). Evidence and inferences to be drawn therefrom that do not support a finding of guilty are ignored. Id .
The appellant cites one case, State v. White , 28 S.W.3d 391 (Mo.App. 2000), in arguing that his conviction should be reversed because the State failed to prove that he knew that he was within 2,000 feet of a school. In White , this court reversed a conviction under § 195.214 because the State proved only that the appellant delivered a controlled substance within 2,000 feet of a school, and not that the appellant knew that the delivery was within 2,000 feet of a school. Id . at 396-97. This court went on to say:
The only other evidence the State presented on this issue was the testimony of [detectives] that the residence was within 2000 feet of the school but this was based solely on their observation of the map. There was no evidence regarding the size and height of the school building(s), how many blocks away the school is from the residence, and whether the school is visible from the residence. The State failed to show that White had ever seen the school, had ever traveled past the school, or had heard about the school's location. From the record, there is nothing from which the jury could reasonably infer whether the school was a highly visible large complex, or a single classroom in the basement of a residential building.
The map and the related testimony are simply insufficient to establish that White knew about the school. The State needed to present some additional evidence to establish that White was knowingly distributing or delivering a controlled substance within 2000 feet of a school. Evidence that the school premises was a large complex, with one or more large and highly visible buildings, and that normal ingress and egress from the residence would have taken White by the school, would have permitted an inference that he had knowledge of the location and distance of the school. There was no such evidence. Testimony that the buildings depicted on the map were drawn to scale, and describing the appearance of the buildings, could have given the jury a basis for forming a reasonable inference that White had knowledge of the location of the school. There was no such testimony. The map, which was in essence the only evidence the State presented on this issue, in and of itself, was insufficient to establish that White knowingly distributed a controlled substance within 2000 feet of a school. For the jury to conclude, as was necessary for it to convict, that the sale occurred within 2000 feet of a school would have required it to engage in mere speculation. Accordingly, we must hold that the evidence was insufficient to support White's conviction on those charges.
Id . at 397 (emphases added).
This point, reduced to its essence, is that the appellant alleges that there was insufficient evidence to support a finding that he knew his residence, where the sale occurred, was 2,000 feet from the college he attended. The State presented sufficient evidence to establish that the appellant had knowledge of the location and distance of the school. A man who was at the scene of the crime, Anderson, testified that he and the appellant were classmates at Westminster College and graduated together, and that they were both co-captains of the football team. An engineer for the City of Fulton testified that the appellant's residence is within a 2,000-feet radius of Westminster College, the center of which was near the football field. The appellant argues that "it can certainly be inferred that he knew where the college was located. But whether or not he knew that the distance between his house and the college was less than 2,000 feet is not shown by any evidence before the jury."
"Knowledge may be proven by circumstantial evidence." State v. Blom , 45 S.W.3d 519, 521 (Mo.App. 2001)(citation omitted). "In fact, because direct evidence of a particular mental state is seldom available, proof of the mental state will usually rest on circumstantial evidence and permissible inferences." Id . The State "may establish the mental element by evidence of and inferences from the accused's conduct before the act, the act itself, and the accused's conduct after the act." Id .
In this case, this court finds that the jury had evidence from which it could make reasonable inferences that the appellant knew that his residence, the scene of the drug transaction, was within 2,000 feet of Westminster College. Some of the distinguishing language in White indicated that the State there failed to prove that the appellant knew that a school was nearby because it presented no evidence about the size of the school, about whether the school's ingress or egress would have taken the appellant by the school, about whether the appellant there had even heard of the school, etc. Id . at 397. The facts in the case at hand distinguish White . Here the appellant was a graduate and a football player of the school in question. Less than 2,000 feet from where the appellant played football was his residence, where the transaction occurred. Accordingly, the jury had sufficient evidence from which it could infer that the appellant knew he was within 2,000 feet of Westminster College when he sold the drugs.
This point is denied.
II.
The appellant next argues that the trial court erred in refusing to submit to the jury the lesser-included offense of possession of thirty-five ounces or less of marijuana. The appellant's proffered instruction was flawed: he directed the jury to consider the lesser-included offense of possession if the jury did "not find the [appellant] guilty of possession of more than five grams of marijuana with intent to deliver" under the original charge. The instruction should have directed the jury to consider the lesser-included offense of possession if they did not find the appellant guilty of delivery under § 195.214.
The trial court is required to instruct the jury on a lesser-included offense if there is a basis for acquitting the defendant of the charged offense and convicting him of the lesser-included offense. § 556.046.2. However, the trial court "is not obligated to submit an instruction on a lesser-included offense unless the defendant expressly requests such an instruction." State v. Robinson , 44 S.W.3d 870, 872 (Mo.App. 2001). The trial court rejected the appellant's proposed instruction believing that possession was not a lesser-included offense of § 195.214. This court need not reach the merits of the appellant's contention as to whether possession is a lesser-included offense, however, because the exclusion was appropriate even if the court's stated reason was incorrect. Felling v. Giles , 47 S.W.3d 390, 393 (Mo.App. 2001)("This court on appeal is primarily concerned with the correctness of the result, and not the route taken by the trial court to reach it."); State v. Anderson , 386 S.W.2d 225, 229 (Mo.banc 1963)(if the trial court ruled correctly, it is immaterial that its assigned reason for its ruling was erroneous).
Courts are not obliged to give instructions that are not "meticulously correct." State v. Binnington , 978 S.W.2d 774, 776 (Mo.App. 1998)(tendered instructions were defective because they did not hypothesize reasonable fear of death or serious injury). In State v. Parkhurst , 845 S.W.2d 31, 36-37 (Mo.banc 1992), the appellant's proposed verdict director misstated the legal standard regarding self-defense and thus the trial court committed no error in refusing to submit it. Given the trial court's discretion to refuse instructions that are not "meticulously correct," it is irrelevant that the appellant here stated correctly the elements of the proposed instruction; he failed to state the correct underlying charge. The trial court properly denied the appellant's proffered jury instruction.
The appellant attempted to raise a plain-error argument in his reply brief, but because the proffered instruction was flawed and because the appellant did not preserve the argument in his motion for a new trial, Rule 29.11(d), this court is not required to address such an argument. Under Rule 30.20, "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Review for plain error "is within our discretion, and should be used sparingly." State v. Culbertson , 999 S.W.2d 732, 737 (Mo.App. 1999). "When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from [our] refusal to invoke [plain error review]." Id . "More than a mere showing of demonstrable prejudice is required as a basis for reversal under plain error." State v. Mathews , 33 S.W.3d 658, 662 (Mo.App. 2000). Because the evidence against the appellant was overwhelming, this court declines to review for plain error.
This point is denied.
III.
The appellant argues in his third point that the trial court erred in failing to grant a mistrial when Ferrari testified that he had information that the appellant had engaged in previous drug sales.
The colloquy between the detective and the prosecutor that appellant complains of follows:
Q: Now, did you and [the informant] have a discussion about what you were going to do that evening vis-a-vis the investigation during the course of your being in the bar?
A: Yes.
Q: What was that discussion?
A: After meeting with Mr. Derenzy, I had known from previous intelligence that he had sold narcotics.
(Emphasis added.)
At that point, the appellant's counsel objected and asked for a mistrial because Ferrari's answer was not responsive and because it put the appellant's prior criminal behavior or conduct before the jury. The trial court properly sustained the appellant's objections, instructed the jury to disregard Ferrari's statement, but declined to grant a mistrial.
"As a general rule, evidence of prior uncharged crimes and prior bad acts are inadmissible for the purpose of showing the propensity of the defendant to commit such crimes." State v. Hatch , 54 S.W.3d 623, 631 (Mo.App. 2001). The rationale behind the general rule is that "showing the defendant's propensity to commit a given crime is not a proper purpose for admitting evidence, because such evidence 'may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.'" State v. Burns , 978 S.W.2d 759, 761 (Mo.banc 1998).
A mistrial is a drastic remedy and should be granted only in extraordinary circumstances. State v. Johnson , 901 S.W.2d 60, 62 (Mo.banc 1995). However, "[b]ecause the trial court observes the incident giving rise to the request for a mistrial, and is in a better position to evaluate the prejudicial effect of the incident, if any, the declaration of a mistrial rests largely in its discretion." Id . Review, therefore, is for abuse of discretion. Id .
In analyzing whether the evidence was prejudicial so as to warrant a mistrial, this court considers five factors:
1) whether the statement was, in fact, voluntary and unresponsive [to the prosecutor's questioning if the prosecutor asked the question] . . . or whether the prosecution "deliberately attempted to elicit" the comments . . .; 2) whether the statement was singular and isolated, and whether it was emphasized or magnified by the prosecution . . .; 3) whether the remarks were vague and indefinite, or whether they made specific reference to crimes committed by the accused . . .; 4) whether the court promptly sustained defense counsel's objection to the statement . . . and instructed the jury to disregard the volunteered statement . . .; and 5) whether in view of the other evidence presented and the strength of the state's case, it appeared that the comment "played a decisive role in the determination of guilt."
State v. Bowles , 23 S.W.3d 775, 781 (Mo.App. 2000); State v. Knowles , 946 S.W.2d 791, 794 (Mo.App. 1997).
Application of these five factors indicates that the trial court did not abuse its discretion in denying the appellant's motion for a mistrial. First, in addition to objecting to the statement on the ground that it was prejudicial, appellant's counsel also objected to the statement because it was non-responsive. It is clear from the above colloquy that the State was not attempting to elicit rumored bad acts about the appellant and that the response was voluntary and unsolicited.
Second, the statement from this witness was a single, isolated reference and did not provide any specific details about the appellant's reputed bad acts. Other references to the appellant's bad acts were made or elicited by the appellant's attorney. In setting up his entrapment defense, the appellant's attorney acknowledged in his opening statement that the police targeted the appellant because the informant had told them that the appellant was rumored to be involved in drug activities at Westminster College. The appellant's attorney also called the informant as a defense witness and elicited from him that he was the one who provided the appellant's name to Ferrari though he had never seen the appellant "use, transfer, or sell marijuana." If anything, the fact that the appellant injected these comments neutralizes any supposed prejudice.
Third, the comments were vague and indefinite, referring only to "previous intelligence that [the appellant] had sold narcotics" in the past; no specifics accompanied Ferrari's response. Fourth, the remark was stricken from the record and the jury was instructed to disregard it. It is not erroneous to decline to declare a mistrial where the trial judge promptly and explicitly cautioned the jury to disregard improper statements. State v. Brasher , 867 S.W.2d 565, 569 (Mo.App. 1993). "The jury is presumed to have followed a trial court's instruction in the absence of a showing to the contrary." Id . Fifth, given the weight of the evidence, as delineated in the facts and in point one, it is clear that the comment did not play a decisive role in finding the appellant guilty.
Because this court finds no prejudice in the statement complained of by the appellant, this point is denied.
IV.
In his final point, the appellant argues that the trial court erred in denying his motion for judgment of acquittal at the close of evidence because the evidence was insufficient to meet the State's burden of proof that the appellant was not entrapped. The trial court submitted the appellant's tendered entrapment instruction, MAI-CR3d 310.28 to the jury.
Entrapment is codified in § 562.066:
1. The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.
2. An "entrapment" is perpetuated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.
4. The defendant shall have the burden of injecting the issue of entrapment.
To prove entrapment, the statute requires proof of inducement to engage in unlawful misconduct and an absence of willingness to engage in such conduct. Missouri follows the "origin of intent" test. State v. Foster , 838 S.W.2d 60, 65 (Mo.App. 1992). This is a subjective test, and the question centers on causation: Was the person's criminal conduct caused by the officer's creative activity or by the person's own predisposition? Id .
"The defendant has the initial burden to show, by substantial evidence, both the officer's inducement and his own lack of willingness to engage in criminal conduct." Id . To meet the initial burden, "evidence must be viewed in the light most favorable to the defendant, and the defendant may use evidence adduced in the state's case." Id . (citations omitted). Once the defendant has met this burden, the state must prove lack of entrapment beyond a reasonable doubt. Id . "The State may do so by rebutting either defendant's evidence of inducement or by showing his predisposition." State v. Willis , 662 S.W.2d 252, 255 (Mo.banc 1983).
The State argues that the appellant: 1) did not meet his initial burden of injecting substantial evidence of entrapment into the case, and 2) that the appellant waived the defense of entrapment by successfully objecting to the State's attempt to introduce additional evidence of his predisposition to distribute marijuana. The court need not reach either of those issues, however, because as a matter of law, there was no evidence of entrapment in the State's case, as set forth below.
Viewing the evidence in the light most favorable to the appellant, this court finds that the appellant did not establish as a matter of law that the trial court erred in not sustaining his motion for a judgment of acquittal. Under Willis , the appellant submitted enough evidence for a fact finder to determine whether he was entrapped, but he did not establish entrapment as a matter of law because the State's case indicates no evidence of entrapment. 662 S.W.2d at 255-56. The appellant's evidence of entrapment included putting the informant on the stand, who testified that the appellant was "hesitant" to respond to a question of whether he could get "anything" for Ferrari. The defense also presented the appellant's friend, Nathan Anderson, who testified that while at the bar, the informant asked the appellant several times to sell marijuana and that each time the appellant declined to sell. Anderson also testified that the appellant was reluctant to sell and that the appellant responded time and again "I don't have anything to sell. I don't want to sell anything to you." The testimony of these two witnesses, if believed, could constitute entrapment under § 566.026.2 in that it would show that Ferrari had solicited, encouraged or otherwise induced the appellant to engage in conduct when he was not ready and willing to engage in such conduct. The State's case, relevant here is Ferrari's testimony, did not indicate entrapment. No witness for the State testified that the appellant declined to sell Ferrari drugs, and the microcassette, though often difficult to understand, is in accordance with Ferrari's testimony.
"If the defendant has injected the issue of entrapment into the case and the State's case contains no evidence of entrapment, entrapment is not established as a matter of law." State v. Adams , 839 S.W.2d 740, 743 (Mo.App. 1992). "The fact finder is free to reject the defendant's allegations and conclude he was not unlawfully entrapped." Id . As in Adams and Willis , the appellant presented evidence sufficient to have his defense submitted to a fact finder, but as a matter of law he was not entitled to have his motion for a judgment of acquittal sustained. Adams , 839 S.W.2d at 743 ; Willis , 662 S.W.2d at 255-56 . This point is denied.
The judgment is affirmed.
All concur.