State v. Jackson

681 S.W.3d 248

STATE of Missouri, Plaintiff-Respondent,

v.Kenny JACKSON, Defendant-Appellant.

No. SD 37762

Missouri Court of Appeals, Southern District, In Division.

Filed: October 17, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied

November 14, 2023

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY, Honorable Michael Pritchett, Circuit Judge

Attorney for Appellant - Chad Flanders, St. Louis, Mo.

Attorney for Respondent - Justin Earl Davis, Jefferson City, Mo.

GINGER K. GOOCH, J.

Kenny Jackson ("Jackson") appeals the trial court’s judgment convicting him, after a jury trial, of trafficking of a controlled substance in the first degree under Section 195.222, possession of a controlled substance with the intent to distribute under Section 195.211, and unlawful possession of a firearm under Section 571.070.¹ Jackson raises five points on appeal. In Point I, Jackson argues the trial court plainly erred by submitting Instruction No. 7 as the verdict director for Count 1 when Instruction No. 7 did not include a definition of "possessed." In Points II and V, Jackson argues the trial court plainly erred by not sua sponte dismissing the charges against him due to a speedy trial violation and then later by failing to sua sponte declare a mistrial when the State improperly presented other crimes evidence against Jackson. In Points III and IV, Jackson contends the State failed to present sufficient evidence from which a reasonable juror could convict him of Counts 2 and 3, respectively. Jackson now argues Point III is moot because the trial court has expunged all records related to Count 2 and vacated his Count 2 sentence. We agree. We dismiss Jackson’s Point III as moot and otherwise affirm the trial court’s judgment.

Factual Background and Procedural History

"On appeal, we view the evidence in the light most favorable to the verdict and grant the State all reasonable inferences that can be drawn from that evidence." State v. Hilleman, 634 S.W.3d 709, 711 (Mo. App. 2021). Viewed from this perspective, the following evidence was adduced at trial.

On March 8, 2016, officers with the Poplar Bluff Police Department (the "officers") executed a search warrant at 627 Dewey Street in Poplar Bluff (the "residence"). Jackson, his girlfriend, another man, and three children, two of whom were Jackson’s children, were inside when the officers entered the residence. Only Jackson, his girlfriend, and their children lived at the residence.

Lieutenant Josh Stewart ("Lieutenant Stewart") of the Poplar Bluff Police Department testified he and other officers breached the front door of the residence. Lieutenant Stewart observed Jackson standing by a kitchen counter and then saw Jackson run into a bathroom. Lieutenant Stewart followed Jackson and saw Jackson exit the bathroom about five seconds later. Lieutenant Stewart could hear the toilet flushing and ordered Jackson to the ground. After securing Jackson, Lieutenant Stewart observed the toilet was not filling all the way. The toilet was eventually removed and the officers found a plastic bag containing 55.03 grams of methamphetamine in the toilet drainpipe.

The officers also found two plastic bags on the kitchen counter near where Jackson was standing when the officers breached the front door of the residence. One bag contained 3.32 grams of methamphetamine, and the other bag contained a crystalline substance used by methamphetamine dealers as a cutting agent for methamphetamine. On the same kitchen counter, the officers also found a digital scale, approximately $2,700 cash, and approximately four grams of marijuana.

The officers also found two firearms in a dresser drawer in the master bedroom. In the same dresser, the officers found Jackson’s driver’s license and non-driver’s license, his girlfriend’s driver’s license and non-driver’s license, mail with Jackson’s name, mail with his girlfriend’s name, a blue thermos containing 37 grams of marijuana, and a Rubbermaid container containing loose marijuana. The officers found men’s deodorant on top of the dresser. The officers discovered another firearm and a total of 139.63 grams of methamphetamine under the bed in the master bedroom. In bodycam footage admitted at trial, Jackson’s girlfriend told the officers the firearms were not hers and she did not know how the firearms came to be in the residence.

The State charged Jackson with trafficking of a controlled substance in the first degree under Section 195.222 (Count 1), possession of a controlled substance with the intent to distribute under Section 195.211 (Count 2), and unlawful possession of a firearm under Section 571.070 (Count 3) (related only to the two firearms found in the dresser drawer and not the firearm found under the master bedroom bed). The State charged Jackson as a persistent drag offender under Section 579.170 and a persistent offender under Section 558.016. The jury found Jackson guilty of all counts. The trial court entered judgment and sentenced Jackson to 20 years’ imprisonment on Count 1, 15 years’ imprisonment on Count 2, and 10 years’ imprisonment on Count 3, with all sentences to ran concurrently. Jackson appealed. To the extent additional factual background or procedural history is necessary to resolve any point on appeal, it is included in the discussion of each point. For ease of analysis, we consider Jackson’s points out of order.

Point I - Instructional Error

In Point I, Jackson alleges the trial court plainly erred in submitting Instruc- tion No. 7, the verdict director for trafficking of a controlled substance in the first degree (Count 1), because Instruction No. 7 contained no definition of "possessed," which Jackson alleges resulted in manifest injustice because possession was an essential element of the offense and the omission of the definition of "possessed" from Instruction No. 7 relieved the State of its burden to prove every element of the offense charged.

Jackson’s counsel affirmatively responded he had no objection to the form of Instruction No. 7 during the instruction conference at trial, and Jackson did not raise any issue of instructional error in his motion for new trial, Jackson requests plain error review.

Standard of Review

[1-6] "Instructional error requires reversal when the error is ‘so prejudicial that it deprived the defendant of a fair trial.’ " State v. Brandolese, 601 S.W.3d 519, 531 (Mo. banc 2020) (quoting State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017)). "All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear." Id. (quoting State v. Baumruk, 280 S.W.3d 600, 608 (Mo. banc 2009)). "But even if the instructional error is evident, obvious and clear, the defendant must ‘demonstrate that the trial court so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice,’ " Id. (quoting State v, Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)). "Moreover, ‘plain error review is discretionary,’ and ‘this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant's invited errors.’ " Id. (quoting State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012)).

Analysis

The trial court submitted Instruction No. 7 as the verdict-directing instruction for trafficking of a controlled substance in the first degree. The instruction stated, in part:

As to Count 1, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 8^th, 2016, in the County of Butler, State of Missouri, the defendant possessed more than 30 grams of methamphetamine, and

Second, that such conduct was a substantial step toward the commission of the offense of trafficking in the first degree by attempting to distribute more than 30 grams or more of any material containing any quantity of methamphetamine, a controlled substance, and

Third, that defendant engaged in such conduct for the purpose of committing such trafficking in the first degree, then you will find the defendant guilty of trafficking in the first degree.

[7] Jackson now asserts the trial court should have included in Instruction No. 7 a definition of "possessed." The Notes on Use to MAI-CR3d 325.11.2, the pattern instruction for trafficking of a controlled substance in the first degree, do not list "possessed" as a term that must be defined despite note 4 listing several terms that must be defined.² But note 2 in the Notes on Use to MAI-CR3d 325.02, the pattern instruction for "Controlled Substances: Possession," states: "Section 195.202 makes it unlawful for any person to possess or have under his control a controlled substance. This instruction submits that defendant possessed the substance …. The term ‘possessed’ must be defined." MAI-CR3d 325.02 sets out the following definition of "possessed":

As used in this instruction, the term "possessed" means either actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who is not in actual possession has constructive possession if he has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. (Possession may also be sole or joint. If one person alone has possession of a substance, possession is sole. If two or more persons share possession of a substance, possession is joint.)

Jackson argues State v. Farris, 125 S.W.3d 382 (Mo. App. 2004), is on-point and demonstrates the trial court’s failure to include a definition of "possessed" in Instruction No. 7 is plain error necessitating reversal and remand for a new trial.³ In Farris, Farris argued the trial court plainly erred in denying Farris’s request to instruct the jury on the definition of possession in the verdict director for attempt to manufacture methamphetamine. Id. at 385. The court reversed and remanded for a new trial,...