State v. Hampton

50 S.W.3d 298, 2001 Mo. App. LEXIS 1194, 2001 WL 733408
CourtMissouri Court of Appeals
DecidedJune 29, 2001
DocketNo. 23872
StatusPublished
Cited by1 cases

This text of 50 S.W.3d 298 (State v. Hampton) 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. Hampton, 50 S.W.3d 298, 2001 Mo. App. LEXIS 1194, 2001 WL 733408 (Mo. Ct. App. 2001).

Opinion

SHRUM, Judge.

Kenneth Hampton (“Defendant”) appeals from a judgment entered after a jury found him guilty of possession of more than 35 grams of marijuana, § 195.202.1 The trial judge sentenced Defendant as a [300]*300prior and persistent drug offender to a term of life imprisonment. Defendant’s single point on appeal charges the trial court committed reversible error when it refused to instruct the jury on possession of less than 35 grams of marijuana per Instruction “A” tendered by Defendant. This court affirms.

FACTS

The sufficiency of the evidence is not in dispute. In the light most favorable to the verdict, the evidence is that on November 13, 1996, a Wayne County sheriffs deputy (“Burch”) helped officers of the ATF (including agent “Diveley”) execute a federal warrant to search Defendant’s house at Silva, Missouri. When the officers arrived, an individual named Christopher Galamore opened the door and allowed the officers to enter the house. Once inside, Diveley entered the master bedroom and awakened Defendant and his wife. Subsequently, as Burch searched the master bedroom he found a large bag of marijuana seeds and several metal smoking pipes in a wastepaper basket beside the bed. Two of the pipes appeared to contain residue. In another part of the master bedroom, Burch found three small bags of a “green leafy substance” hidden beneath a trash bag that lined a wastepaper basket. Other officers discovered and seized syringes from the master bedroom and a large bag of a “green leafy substance” beneath a step in a bathroom that adjoined the master bedroom. They also recovered a triple beam scale from a “closet ... in either the bathroom or bedroom.”2

Agent Diveley led Defendant and his wife into the kitchen of their home where he read Defendant his Miranda rights. After indicating he wanted to make a statement, Defendant told Diveley the large bag of marijuana was his, but that he did not want to name the person who gave it to him. Burch testified he heard Defendant tell Diveley “that the marijuana was his.”

The evidence seized was ultimately taken to the Southeast Missouri crime laboratory for testing. Analysis of the pipes revealed that one tested positive for marijuana residue. Laboratory analysis also confirmed that the “green leafy substance” in the four bags was marijuana. The total weight of the four bags of marijuana was approximately 137 grams. The larger bag of marijuana weighed approximately 129 grams and the three smaller bags weighed approximately four grams, three grams, and one gram, respectively.

Defendant called Diveley as a defense witness to show what Diveley put in his report regarding Defendant’s statement. Specifically, Diveley had recorded Defendant as saying “the marijuana which was found in the house came from a friend of his who he refused to identify.”

The jury was instructed on the offenses of possession of more than five grams of marijuana with intent to distribute, the lesser-included felony offense of possession of more than 35 grams of marijuana, and possession of cocaine.3 Defendant tendered a pattern instruction on misdemean- or possession of marijuana, i.e., less than [301]*30135 grams, but the court refused to give the instruction.

The jury found Defendant guilty of possession of more than 35 grams of marijuana and not guilty of possession of cocaine. This appeal followed.

DISCUSSION AND ANALYSIS

Defendant claims the evidence supported a verdict that he possessed less than 35 grams of marijuana § 195.202.3,4 and therefore an instruction for that lesser-ineluded offense should have been given. See § 556.046.2.5 Defendant advances two reasons for his claim there was evidence to support the “less than 35 gram” instruction. Both arguments revolve around the fact that marijuana was found in two different locations in Defendant’s house (three bags with less than 35 grams total in the bedroom where Defendant was sleeping while the larger bag containing over 35 grams was under a step in the bathroom). First, Defendant argues there was a basis for the jury to have believed Defendant possessed only the approximately eight grams found in his bedroom because there were two other persons in the house when the search warrant was executed (Galamore and Defendant’s wife); Burch testified he could not remember whether there was an access to the bathroom from the hallway; and Burch conceded he had no idea how many people had access to the steps leading to the bathroom before the search occurred. Second, Defendant points to the statement attributed to him as recorded in Diveley’s report, to wit, “the marijuana which was found in the house came from a friend of his who he refused to identify.” Defendant says such statement is evidence the jury could have used to conclude Defendant “had no power or intent to exercise dominion or control over the marijuana found under the step since it did not belong to him.”

“Ordinarily, a decision on whether a particular offense must be instructed upon as [a] lesser included offense[ ] must be made on a case by case basis.” State v. Warrington, 884 S.W.2d 711, 717[5] (Mo.App.1994). Error occurs only if a trial court fails to instruct on lesser-ineluded offenses that are supported by the evidence. State v. Garrison, 975 S.W.2d 460, 461 (Mo.App.1998).

As interpreted by Missouri appellate courts, § 556.046.2 limits the requirement of a lesser-ineluded offense instruction to those cases where there is some affirmative evidence that could form the basis of an acquittal of the greater offense and a conviction of the lesser-in-[302]*302eluded offense.6 Id. at 461[4]; Warrington, 884 S.W.2d at 717[6]. Moreover, it is fundamental that the affirmative evidence relied upon must have probative value. Id. “A defendant is not entitled to a lesser included offense instruction merely because the jury might disbelieve some of the state’s evidence or decline to draw some or all of the permissible inferences.” Garrison, 975 S.W.2d at 461-62[5]. On the other hand, a trial court in deciding whether to instruct on the lower degree of crime, must resolve all doubts about the evidence in favor of giving such instruction, leaving it to the jury to decide which of the two or more grades of crime, if any, a defendant is guilty. Warrington, 884 S.W.2d at 717[7].

Measured by these principles, this court finds no error in the trial court’s refusal to instruct the jury on the lower grade crime of possession of 35 grams or less. Since Defendant was not in actual possession of either cache of marijuana, the State had to prove Defendant “constructively” possessed the marijuana amounts. See State v. Sours, 946 S.W.2d 747, 752 (Mo.App.1997). “Constructive possession will suffice, even when joint control exists, as long as other facts buttress an inference that the defendant had knowledge of the marijuana’s presence.” State v. Smith, 850 S.W.2d 934, 943-44 (Mo.App.1993).

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Bluebook (online)
50 S.W.3d 298, 2001 Mo. App. LEXIS 1194, 2001 WL 733408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hampton-moctapp-2001.