State v. Corona

849 S.W.2d 274, 1993 Mo. App. LEXIS 353, 1993 WL 63965
CourtMissouri Court of Appeals
DecidedMarch 11, 1993
DocketNo. 18049
StatusPublished
Cited by1 cases

This text of 849 S.W.2d 274 (State v. Corona) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Corona, 849 S.W.2d 274, 1993 Mo. App. LEXIS 353, 1993 WL 63965 (Mo. Ct. App. 1993).

Opinion

MONTGOMERY, Presiding Judge.

A jury found Jerry Tim Corona (Defendant) guilty of the sale of a controlled substance (amphetamine), § 195.211, RSMo Cum.Supp.1991, and he was sentenced as a persistent offender to 25 years’ imprisonment. This appeal followed.

Defendant presents three points relied on. The first point avers the trial court (a) erred in permitting the State “to elicit evidence that O’Meara and [Defendant] were preparing to inject amphetamine,” and (b) committed plain error “in failing to declare a mistrial, sua sponte, when the state inquired into [Defendant’s] previous drug use.” Defendant further complains the trial court erred in overruling his objection when the prosecutor asked defense witness O’Meara if he had ever used drugs with Defendant (Point II), and giving the instruction defining reasonable doubt (Point III).

Since the sufficiency of the evidence to support the verdict is unchallenged, we [276]*276only briefly state the evidence necessary for consideration of the assigned errors.

On April 25, 1990, C.W. Townsend was working as a Missouri State Highway Patrol undercover agent. In that capacity he had previously become acquainted with Richard O’Meara. Townsend had indicated to O’Meara his desire to buy some amphetamine and O’Meara stated the drug could be purchased from a person nicknamed “Home Boy.” On the above date, Townsend and O’Meara went to Defendant’s home in Clinton, Missouri, to purchase amphetamine. After introductions, Defendant left Townsend and O’Meara in the home for about five minutes while he obtained the amphetamine. Upon his return, Defendant tossed a plastic bag containing a white substance to Townsend who then paid Defendant $300. Townsend and O’Meara departed and went to O’Meara’s house.

At O’Meara’s house, Townsend gave O’Meara a quarter gram of the substance as payment for setting up the buy. O’Meara with his wife then made preparations to inject the substance. When the preparations commenced, he told his two children to go outside. Shortly thereafter, Defendant arrived at the O’Meara house. As Townsend left the house, O’Meara and Defendant were preparing to inject the substance with syringes.

At trial, O’Meara testified he had known Defendant for two or three years, that he did not know Townsend nor did he take Townsend to Defendant’s home on April 25, 1990. On cross-examination, O’Meara asserted his Fifth Amendment privilege when asked if he had ever used drugs with Defendant.

Defendant testified he sold no drugs to Townsend and Townsend was not at his home on April 25,1990. On cross-examination, Defendant admitted using marijuana and amphetamine but denied ever injecting amphetamine in his arm.

Regarding Point 1(a), prior to trial, Defendant had filed a Motion in Limine to exclude any evidence of Defendant’s preparing to inject amphetamine. The motion was overruled on the basis that such evidence would tend to prove an element of the State’s case, i.e., Defendant knew it was a controlled substance or he consciously disregarded the risk that it was.

As we read the record, Townsend testified without objection that he observed Defendant and O’Meara preparing to inject drugs when he left O’Meara’s house. However, Defendant maintains he did object to such testimony with a page reference to the transcript where Townsend was beginning to describe preparations of O’Meara and his wife to inject the drug before Defendant arrived. At that point, the following exchange occurred:

[Defense Counsel]: Judge, I will object to any further testimony on this. Can we approach?
The Court: You may.
Bench Conference
[Defense Counsel]: I assume he is getting ready to testify that he injected the drugs in his arm and if he is, I want my [sic] to renew my Motion In Limine. If you would allow him to testify that O’Meara and Corona used drugs, then I would like to request the Court give a limiting instruction that that is not evidence that drugs were sold.
[Prosecutor]: Judge, we already, we went over this in chambers.
The Court: I thought in chambers we were talking about Jerry Corona using drugs. Now this testimony comes. Do you have evidence that Jerry Corona used drugs?
[Prosecutor]: It will be, yeah, it is forthcoming.

Even if we liberally construe the foregoing as an objection to Townsend’s later testimony, Defendant has failed to preserve this issue for review. After the general objection noted, Defendant’s counsel requested a limiting instruction. Here, Defendant has expanded his objection by asserting such evidence revealed an uncharged crime, lacked probative value and was prejudicial.

Defendant has run afoul of (1) the proscription against interposing one objection at trial and another on appeal and (2) [277]*277the rule that an objection must be specific regarding admissibility of evidence and must contain the proper ground for its exclusion, otherwise the appellate court will not convict the trial court of error for overruling the objection. State v. Jones, 806 S.W.2d 702, 705 (Mo.App. 1991).

Plain error review, Rule 30.20, on this issue has not been requested and is not required, as the testimony did tend to show the element of knowledge on Defendant’s part. Although § 195.211 does not prescribe a culpable mental state, the State, to convict, must prove the Defendant either knew the substance he sold was a controlled substance or acted recklessly with regard thereto. § 562.021.2, RSMo 1986. See MAI-CR3d 325.04 and Notes on Use para. 4. Generally, evidence of uncharged crimes is inadmissible unless that evidence has a legitimate tendency to establish Defendant’s guilt of the crime charged. State v. Kenley, 693 S.W.2d 79, 81 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). Here, the evidence that Defendant was preparing to inject a part of the same substance just previously sold to Townsend would tend to show his guilty knowledge. Clearly, Defendant would not inject the substance if, for example, he knew it was chalk dust. See State v. McKinney, 768 S.W.2d 178, 181 (Mo.App.1989); State v. Rose, 727 S.W.2d 919, 921 (Mo.App.1987); State v. Daly, 731 S.W.2d 315, 318 (Mo.App.1987). Therefore, the testimony was admissible and no plain error resulted.

Part (b) of this point requests our plain error review of the trial court’s failure to declare a mistrial, sua sponte, when the prosecutor questioned Defendant about his prior drug use. Responding to these questions on cross-examination, Defendant admitted use of marijuana and amphetamine.

Plain error may be considered in our discretion upon a finding that manifest injustice or a miscarriage of justice has occurred. Rule 30.20. “The assertion of plain error places a much greater burden on a defendant than when he asserts prejudicial error.” State v. Hunn,

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State v. Roberson
941 S.W.2d 7 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
849 S.W.2d 274, 1993 Mo. App. LEXIS 353, 1993 WL 63965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-corona-moctapp-1993.