State v. Brotherton

797 S.W.2d 813, 1990 Mo. App. LEXIS 1384, 1990 WL 133446
Missouri Court of Appeals·Decided September 18, 1990·No. No. 57030·Published·Cited by 5 cases

Opinion

CARL R. GAERTNER, Presiding Judge.

Appellant appeals his conviction of felony possession of a Schedule II controlled substance, §§ 195.020, 195.017.4(l)(d), RSMo.1986 (repealed 1989), and misdemeanor possession of a concealable firearm without a valid permit, § 571.080 RSMo. 1986.1 He was sentenced to fifteen years imprisonment on the felony count and one year in the Madison County jail and a $1,000 fine on the misdemeanor count. We affirm.

On September 2,1988, Leroy Baker, owner of The Pig barbecue restaurant, went to the Madison County Sheriff’s Department to report that appellant and Timothy Goins were waving firearms at the restaurant. Gary Asher, the sheriff at the time, was aware that there was an arrest warrant for Goins that was still outstanding on that date. Sheriff Asher was also aware that neither appellant nor Goins had firearms permits, as his office issues such permits.

Sheriff Asher, assisted by Deputies Lewis and Bowman, went out to look for appellant and Goins. After checking several places in Fredericktown, Sheriff Asher spotted appellant’s Ford Ranger pickup in the parking lot of the Ozark Quik-Shop. He pulled in behind appellant’s vehicle. Appellant started to back up, and Sheriff Asher hit the tailgate and yelled at him to stop. Sheriff Asher observed appellant and noticed his eyes were watery and bloodshot with dilated pupils, his face was red and flushed, and he was slow to follow commands. Sheriff Asher felt appellant was intoxicated, although he detected no odor of alcohol and saw no empty cans or bottles. He also saw a .38 semiautomatic pistol on the seat next to appellant’s right knee.

Sheriff Asher asked appellant to step out of the truck because of the presence of a gun. Deputy Lewis made the same request of appellant’s passenger, who turned out to be Larry Matthews and not Timothy Goins. Deputy Lewis announced he found a .44 caliber gun on Matthews and Sheriff Asher placed appellant under arrest.

The officers next conducted a search of the truck’s cab. They found a chrome .357 Magnum in a pouch under the seat on the passenger side, a packet with a white powdery substance in an open area on the dash, a syringe sticking out of a plastic trashbag, a folding pocket knife, a vitamin bottle with liquid inside, and a plastic bag containing tablets. Deputies Bowman and Lewis delivered the packet, the bottle, and the knife to SEMO Regional Crime Laboratory, where tests showed them to be positive for the presence of cocaine, a Schedule II controlled substance.

[815] We note at the outset that none of appellant’s five points on appeal have been properly preserved. We thus limit ourselves to reviewing for plain error. Rule 30.20; State v. Loewe, 756 S.W.2d 177, 180 (Mo.App.1988). Relief under plain error requires appellant to show manifest prejudice affecting substantial rights. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo.banc 1989); cert. denied, - U.S. -, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).

Appellant’s first point alleges the trial court erred in admitting into evidence a certified copy of an arrest warrant for Timothy Goins because it constituted guilt by association and placed appellant’s character in issue.

Appellant has not properly preserved this point because no timely objection was made when the copy of the arrest warrant was introduced. To preserve an objection to admission of evidence, appellant must object when the evidence is sought to be introduced. State v. Sargent, 702 S.W.2d 877, 884 (Mo.App.1985). Here, the objection to this evidence came at the close of the state’s case when the exhibit was formally offered into evidence. The allegedly damaging evidence had already been presented to the jury without objection through identification of the exhibit and oral testimony concerning it. The objection was untimely. Id.

At trial Sheriff Asher testified he was told appellant and Timothy Goins were waving firearms. The state then introduced Exhibit 1, which Sheriff Asher identified as certified copy of a warrant for the arrest of Timothy Goins for possession of marijuana. The warrant was still outstanding on September 2, 1988. The trial court has broad discretion in the admission of evidence and will only be reversed for abuse of discretion. State v. Oliver, 729 S.W.2d 560, 563 (Mo.App.1987). The existence of an outstanding warrant for Goins explains Sheriff Asher’s conduct in trying to locate Goins and appellant. We find no error plain or otherwise. Point denied.

Appellant’s second point asserts trial court error in overruling his motion to suppress evidence and in admitting the seized articles when there was insufficient probable cause to stop appellant. Review of a motion to suppress involves determining whether the evidence is sufficient to support the trial court’s decision. State v. Motley, 740 S.W.2d 313, 317 (Mo.App.1987). This point is not adequately preserved for review because appellant has failed to provide a transcript of the hearing on the motion to suppress. State v. Brown, 744 S.W.2d 809, 812 (Mo.banc 1988); State v. Franklin, 755 S.W.2d 667, 671 (Mo.App.1988). Nevertheless, reviewing the evidence presented at the jury trial, .we find no merit to appellant’s contention.

Appellant’s support for the proposition that his stop lacked probable cause lies in two isolated facts. First, Sheriff Asher did not begin to search for appellant and Timothy Goins until approximately an hour after Leroy Baker reported the disturbance at The Pig. Appellant asserts this raises remoteness issues. Sheriff Asher testified he could not leave immediately because he was the only officer in the Department at the time, and he had to stay because there were prisoners out for visitation. Appellant has not directed us to any cases, and our research has not disclosed any, where law enforcement officers are required to immediately pursue suspected felons upon learning of possible criminal activity. The mere fact that an hour or two elapsed between the sheriff’s receipt of a report of criminal activity and his stopping of appellant does not invalidate the detention and the related search. Cf. State v. Clark, 729 S.W.2d 579, 583 (Mo.App.1987) (defendant subjected to an investigatory stop three hours after a rape occurred).

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State v. Brotherton, 797 S.W.2d 813, 1990 Mo. App. LEXIS 1384, 1990 WL 133446 (Mo. Ct. App. 1990).

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