State v. Lemister

560 S.W.3d 609
CourtMissouri Court of Appeals
DecidedOctober 10, 2018
DocketNo. SD 35045
StatusPublished
Cited by2 cases

This text of 560 S.W.3d 609 (State v. Lemister) 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. Lemister, 560 S.W.3d 609 (Mo. Ct. App. 2018).

Opinion

WILLIAM W. FRANCIS, JR., P.J.

Mandy Lee Lemister ("Lemister") appeals her conviction, following a bench trial, of unlawful possession of a weapon. In two points on appeal, Lemister asserts the trial court erred in rejecting her "motion for judgment of acquittal" in that there was insufficient evidence to support her conviction, and that the trial court erred in "rendering a verdict" without first giving Lemister the opportunity for closing argument. Finding no merit to Lemister's points, we affirm the judgment of the trial court.

Factual and Procedural History

We recite the evidence in the light most favorable to Lemister's conviction. See State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016).

Lemister and her Husband were convicted felons. On January 20, 2016, Husband was driving a 1999 Chevy minivan, equipped with license plates registered to a Ford truck. A police officer pulled the van over for its improper license plates. Husband said he had a valid driver's license, which he was unable to produce. He then claimed not to have a driver's license, but instead "had a paper saying he could drive[.]" When asked, he was unable to produce that "paper" either. Police were able to determine at the scene that Husband's driver's license was actually suspended.

Husband consented to a search of the van. Lemister was in the passenger seat. Police immediately saw a rifle between them on the floor. An officer "leaned in the driver's door and looked down and s[aw] [a] rifle." It was "easily visible," "just laying on the open floor" between the two *611front bucket seats. The rifle was "oriented along the length of the mini van" between the two front seats, "about the same distance between" Husband and Lemister. Next to the rifle and "plainly visible," was a half-dollar-sized container with methamphetamine residue. In the dashboard, "behind a wad of paper where the radio used to be" was a holstered (and loaded) pistol.

Police asked about the guns, and "within earshot" of Lemister, Husband several times "said the guns were in the car when he bought the car[.]"2 "Lemister was handcuffed and [M]irandized[.]" Lemister "echoed [Husband's] statement, [and] said the guns were in the vehicle when we bought the vehicle." An offender-status check, ran through dispatch at the scene, confirmed that Husband and Lemister both had "prior felony criminal histor[ies]," and "could not possess firearms."

Lemister was charged by amended information, as a prior offender, with the class C felony of possession of a controlled substance (Count I), pursuant to section 195.202;3 the class C felony of unlawful possession of a firearm (the rifle) (Count II), pursuant to section 571.070;4 and with the class C felony of unlawful possession of a firearm (the pistol) (Count III), pursuant to section 571.070.

Lemister waived her right to a jury trial, and a bench trial commenced on March 6, 2017. After the State's case in chief, the State dismissed Count I with prejudice. Lemister filed a "Motion for Judgment of Acquittal at the Close of State's Evidence," and after hearing argument, the motion was denied.

Lemister testified in her own defense. She claimed Husband bought the van "a couple of days prior[ ]" to the incident, that she was not "with him when he bought it[,]" and buying the vehicle was not "something that [they] had discussed" and not "something that [she] participated in in any fashion[.]" She claimed her "first contact with that vehicle[ ]" was thirty minutes to an hour before they were pulled over. She claimed no knowledge of the guns until officers found them in the van during the traffic stop.

Lemister filed a "Motion for Judgment of Acquittal at the Close of all the Evidence," and defense counsel "rest[ed] on the previously made argument." The trial court overruled the motion.

The trial court then announced that it had found Lemister guilty of unlawful possession of the rifle (Count II), and not guilty on Count III, unlawful possession of the handgun.

Defense counsel stated, "Judge, frankly, I was going to ask to do closing argument as well." The trial court responded, "I'm sorry. I apologize. I will listen to closing argument." The trial court then invited the State to proceed with closing argument, which it did.

The following colloquy then occurred:

THE COURT: You may be heard, [defense counsel].
[DEFENSE COUNSEL]: Judge-
THE COURT: And really, counsel, what I'm looking for is how she could possibly avoid seeing a rifle that big in a car she's riding in.
[DEFENSE COUNSEL]: Sure.

Defense counsel then proceeded with closing argument, during which the trial *612court interjected specific questions. The State declined rebuttal argument. The trial judge then announced:

THE COURT: I'm sorry, [defense counsel], you have not changed my mind. I believe the term that's used is easy reach and control, it's right there, she just had to reach down her hand, and that's all that is required and I do not believe her testimony that she did not have knowledge of the rifle. With regard to the pistol, absolutely, that's a great argument and I find the defendant not guilty of Count III. She is found guilty beyond a reasonable doubt of Count II.

The trial court sentenced Lemister to seven years' imprisonment on Count II, with suspended execution of sentence, and ordered five years' supervised probation with conditions. This appeal followed.

In two points, Lemister asserts the trial court: (1) erred in overruling her "motion for judgment of acquittal" because the evidence was insufficient to show that she had actual or constructive possession of the rifle; and (2) erred in "rendering its verdict" without first giving Lemister an opportunity to argue her case in closing argument.

Principles of Review

"Appellate review of sufficiency of the evidence is limited to whether the State has introduced adequate evidence from which a reasonable finder of fact could have found each element of the crime beyond a reasonable doubt." Lammers , 479 S.W.3d at 632. We view the evidence and inferences in the light most favorable to the conviction, and ignore contrary evidence and inferences. Id. The "standard is the same in a bench-tried criminal case as in a jury-tried case." State v. Cole , 384 S.W.3d 318, 320 (Mo. App. S.D. 2012).

Analysis

Point I: Sufficiency of the Evidence

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Bluebook (online)
560 S.W.3d 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lemister-moctapp-2018.