State of Missouri v. Luis Zetina-Torres , 2016 Mo. LEXIS 42 ( 2016 )


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  •              SUPREME COURT OF MISSOURI
    en banc
    STATE OF MISSOURI,                                )
    )
    Respondent,          )
    )
    v.                                                )      No. SC95194
    )
    LUIS ZETINA-TORRES,                               )
    )
    Appellant.           )
    APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY
    The Honorable Dennis A. Rolf, Judge
    Opinion issued March 1, 2016
    Luis Zetina-Torres (hereinafter, “Appellant”) appeals from the circuit court’s
    judgment convicting him of one count of second-degree drug trafficking, section
    195.223.9(2), RSMo 2000. 1      Appellant raises two points on appeal, challenging the
    sufficiency of the evidence to support his conviction and instructional error. This Court
    holds there was sufficient evidence to support Appellant’s conviction and there was no
    instructional error. The circuit court’s judgment is affirmed. 2
    Factual and Procedural History
    On July 16, 2010, Missouri State Highway Patrol Sergeant Brooks McGinnis
    (hereinafter, “Sgt. McGinnis”) was working a “ruse” drug checkpoint on Interstate 70 in
    1
    All statutory references are to RSMo 2000 as supplemented.
    2
    This Court transferred this case after an opinion by the Missouri Court of Appeals,
    Western District. Mo. Const. art. V, sec. 10. Portions of the court of appeals opinion are
    incorporated without further attribution.
    Saline County at the Route EE and K exit. This operation entailed placing signs on the
    interstate informing drivers that a drug checkpoint was ahead when, in fact, no
    checkpoint existed. The informational signs were in English and Spanish. Sgt. McGinnis
    testified that the purpose of the “ruse” checkpoint is to try to elicit enough panic in drug
    traffickers that they exit the interstate early and draw attention to themselves. Interstate
    70 was selected because it is a known drug corridor, and the signs were placed prior to a
    specific exit because it contained no services for motorists that would justify exiting the
    interstate prior to the “ruse” drug checkpoint.
    While conducting this operation, Sgt. McGinnis observed a black Nissan truck exit
    the interstate and travel north on Route EE.         Sgt. McGinnis followed the truck
    approximately thirteen miles until it reached the city limits of Marshall, Missouri. At the
    city limit, the speed limit dropped, and the truck failed to adjust its speed. Sgt. McGinnis
    stopped the truck for a speeding violation.
    Two men were inside the truck. Appellant was the driver, and the passenger was
    Roberto Maldonado-Echeverria (hereinafter, “Maldonado”). 3 Sgt. McGinnis explained
    the speeding violation, and Appellant apologized several times. Both men in the truck
    appeared nervous and avoided eye contact when speaking to Sgt. McGinnis. There was
    an overwhelming odor of a cologne-type air freshener, which Sgt. McGinnis testified
    typically is used as a masking agent to cover the odor of illegal drugs.           Further,
    Sgt. McGinnis noticed there was a single key in the ignition. This was significant
    3
    The record below contains various spellings of Roberto Maldonado-Echeverria’s name;
    however, he is referred to primarily as “Maldonado.” For ease of clarity, this Court refers
    to him in the same manner and intends no disrespect.
    because in Sgt. McGinnis’ experience, drug traffickers often use a single key because
    they do not want their personal keys passed off when they deliver the vehicle to another
    person.
    Sgt. McGinnis asked for Appellant’s license, registration, and proof of insurance.
    Appellant produced a Sonora, Mexico, driver’s license. Appellant stated he borrowed the
    truck from his friend, Mardonio.      The truck was registered to Benitez Mardonio
    Cardova, 4 who resided at 7100 Longview Road in Kansas City (hereinafter, “the Kansas
    City address”). The insurance card listed Mardonio Cardova Benitez and Hugo Rivera as
    the insured parties for the truck. Maldonado produced a Mexican consular card for
    identification, but did not have a valid driver’s license. Maldonado kept yawning, which
    Sgt. McGinnis was trained to recognize as a possible sign of nervousness.
    Appellant exited the truck and went to the patrol car so that Sgt. McGinnis could
    conduct computer checks on both men and the truck. Sgt. McGinnis spoke to Appellant
    while he conducted the computer checks and had no difficulty communicating with
    Appellant. 5 Appellant told Sgt. McGinnis they were going to Marshall to pick up another
    truck from a friend and, then, they were going to take it back to Kansas City to work on
    the engine. Appellant did not identify his friend. Appellant referred to Maldonado as
    “Berto” and stated he had known Berto for a year, but he did not know Berto’s last name
    or what he did for a living, although he did know Berto was not a mechanic. The
    4
    The documents seized during the search contained different spellings and combinations
    of the names “Benitez,” “Mardondio,” and “Cardova.”
    5
    Appellant was provided a Spanish-speaking translator during the lower court
    proceedings.
    3
    computer check revealed Maldonado’s license was suspended and there was a warrant
    out for his arrest. When Sgt. McGinnis told Appellant about Maldonado’s suspended
    license, Appellant said Maldonado was just along for the ride.          Throughout the
    conversation, Appellant was nervous, avoided eye contact by looking out of the patrol car
    window, and gave delayed answers as though he was trying to remember certain
    information.
    Sgt. McGinnis then asked Appellant if there were any drugs or weapons in the
    truck, and Appellant replied, “No, you can check.”       Sgt. McGinnis confirmed that
    Appellant gave consent to search the truck.          Prior to conducting the search,
    Sgt. McGinnis returned to the truck to speak to Maldonado.              Maldonado told
    Sgt. McGinnis they were going to Sedalia to see one of Appellant’s friends. Maldonado
    said he had known Appellant for two or three months and that he did not know the name
    of Appellant’s friend in Sedalia. Maldonado did not mention anything about picking up a
    truck to do engine repairs.
    Sgt. McGinnis then conducted a search of the truck. The tailgate was locked
    despite containing an open truck bed, and the bed liner was sticking out of the rail lip.
    Sgt. McGinnis moved the bed liner and found a package behind the bed liner that
    contained 438.74 grams of wet methamphetamine, indicating it was “fairly fresh.” The
    drugs had a wholesale value of $20,000 and a street value of approximately $43,000.
    Both men were arrested, and Sgt. McGinnis completed his search. Sgt. McGinnis
    seized a laptop, the men’s cellular telephones, and a GPS device. The GPS device was
    mounted on the passenger side of the truck and contained an address in Sedalia and the
    4
    Kansas City address. A text message on Appellant’s prepaid cellular telephone also
    contained the Kansas City address. Appellant’s wallet contained a bank card belonging
    to Mardonio Cardova Benitez and a Money Gram reward card belonging to Mardonio
    Cordova-Benitez. Several documents inside the passenger door pocket contained the
    same names.
    Appellant was indicted on September 27, 2010. The indictment charged Appellant
    with acting alone or knowingly in concert with another person to commit first-degree
    drug trafficking by transporting ninety grams or more of methamphetamine. Appellant
    and Maldonado were tried separately. At Appellant’s July 2011 jury trial, a criminalist
    testified Appellant’s fingerprint matched that of Mardonio Cardova Benitez.             The
    booking photographs of Appellant and Mardonio Cardova Benitez, which closely
    resembled each other, were also introduced into evidence. This evidence was used to
    demonstrate Appellant was the actual owner of the truck and Appellant had knowledge of
    the methamphetamine hidden in the bed liner. Appellant testified at trial that he was
    arrested previously and mistakenly booked as Mardonio Cardova Benitez. Appellant was
    convicted of second-degree trafficking and sentenced to serve a life sentence.
    On appeal, Appellant challenged the sufficiency of the evidence to support his
    conviction, raising allegations of error concerning the state’s discovery violations and the
    circuit court’s refusal to grant Appellant a continuance because of the discovery
    violations. The court of appeals found there was sufficient evidence to convict Appellant
    of second-degree trafficking, but the court reversed and remanded the case due to the
    5
    state’s discovery violations and the circuit court’s error in refusing to grant Appellant a
    continuance. State v. Zetina-Torres, 
    400 S.W.3d 343
    , 357-60 (Mo. App. W.D. 2013). 6
    Appellant was retried in February 2014. The evidence was substantially similar to
    the evidence presented in his first trial and to the evidence presented at Maldonado’s trial.
    However, Appellant’s second trial differed from the first in that the second case was
    submitted on a theory of accomplice liability and required the jury to find Appellant
    guilty if it concluded that, with the purpose of promoting or furthering the commission of
    second-degree trafficking, Appellant acted together with or aided Maldonado in
    committing that offense. Appellant was convicted of second-degree trafficking and now
    appeals this conviction.
    Sufficiency of the Evidence
    Appellant argues the circuit court erred in overruling his motion for judgment of
    acquittal at the close of the evidence because there was insufficient evidence to prove
    beyond a reasonable doubt he was guilty of second-degree trafficking. Appellant argues
    there was insufficient evidence presented that he possessed, had knowledge of, or was
    aware of the presence of the methamphetamine hidden under the truck’s bed liner or that
    6
    Maldonado had a bench trial in October 2011. The circuit court found Maldonado
    guilty of second-degree trafficking and sentenced him to twenty-five years’
    imprisonment. On appeal, Maldonado challenged the sufficiency of the evidence to
    support his conviction, specifically arguing there was insufficient incriminating evidence
    to show he had knowledge and control of the methamphetamine hidden in the bed liner.
    After considering the totality of the circumstances, the court of appeals reversed
    Maldonado’s conviction, finding there was insufficient evidence to permit the inference
    that he had knowledge and control of the methamphetamine. State v. Maldonado-
    Echieverra, 
    398 S.W.3d 61
    , 68 (Mo. App. W.D. 2013).
    6
    Appellant acted together with or aided Maldonado in committing second-degree
    trafficking.
    Standard of Review
    To determine whether the evidence presented was sufficient to support a
    conviction and to withstand a motion for judgment of acquittal, this Court does not weigh
    the evidence but, rather, “accept[s] as true all evidence tending to prove guilt together
    with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence
    and inferences.” State v. Holmes, 
    399 S.W.3d 809
    , 812 (Mo. banc 2013) (quoting State
    v. Latall, 
    271 S.W.3d 561
    , 566 (Mo. banc 2008)). “This Court’s review is limited to
    determining whether there was sufficient evidence from which a reasonable juror might
    have found the defendant guilty beyond a reasonable doubt.” State v. Letica, 
    356 S.W.3d 157
    , 166 (Mo. banc 2011). “This is not an assessment of whether this Court believes that
    the evidence at trial established guilt beyond a reasonable doubt but rather a question of
    whether, in light of the evidence most favorable to the State, any rational fact-finder
    ‘could have found the essential elements of the crime beyond a reasonable doubt.’” State
    v. Nash, 
    339 S.W.3d 500
    , 509 (Mo. banc 2011).
    Second-Degree Drug Trafficking
    Section 195.223.9 states a person commits second-degree drug trafficking if he or
    she possesses or has under his or her control, purchases or attempts to purchase, or brings
    into this state more than thirty grams of any material, compound, mixture or preparation
    that contains any quantity of methamphetamine. A defendant commits a class A felony if
    7
    the quantity involved is ninety grams or more but less than four hundred fifty grams.
    Section 195.223.9(2). “Possessed” or “possessing a controlled substance” is defined as:
    a person, with the knowledge of the presence and nature of a substance, has
    actual or constructive possession of the substance. A person has actual
    possession if he [or she] has the substance on his [or her] person or within
    easy reach and convenient control. A person who, although not in actual
    possession, has the power and the intention at a given time to exercise
    dominion or control over the substance either directly or through another
    person or persons is in constructive possession of it. 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[.]
    Section 195.010(34).
    “To prove possession of a controlled substance, the state must show conscious
    and intentional possession of the substance, either actual or constructive, and awareness
    of the presence and nature of the substance.” State v. Stover, 
    388 S.W.3d 138
    , 146-47
    (Mo. banc 2012). Possession and knowledge may be proved by circumstantial evidence.
    State v. Fuente, 
    871 S.W.2d 438
    , 442 (Mo. banc 1994).             “Absent proof of actual
    possession, constructive possession may be shown when other facts buttress an inference
    of defendant’s knowledge of the presence of the controlled substance.” State v. Purlee,
    
    839 S.W.2d 584
    , 588 (Mo. banc 1992). “Thus, proof of constructive possession requires,
    at a minimum, evidence that defendant had access to and control over the premises where
    the substance was found.” 
    Id. Exclusive control
    of the premises raises an inference of
    possession and control of the substance. 
    Stover, 388 S.W.3d at 147
    .
    Here,   both     Appellant   and   Maldonado    were   in    the   truck   with   the
    methamphetamine. When joint control of the premises or vehicle exists, the state is
    8
    required to demonstrate “some further evidence or admission connecting the accused
    with the illegal drugs.”   
    Purlee, 839 S.W.2d at 588
    .       There are several additional
    incriminating circumstances that would support an inference of a defendant’s knowledge
    and control of the controlled substance when joint possession exists:
    Finding a large quantity of drugs in the vehicle;
    Finding drugs having a large monetary value in the vehicle;
    Easy accessibility or routine access to the drugs;
    The odor of drugs in the vehicle;
    The presence of the defendant’s personal belongings in close proximity to
    the drugs;
    Making false statements in an attempt to deceive the police;
    The defendant’s nervousness during the search;
    The defendant’s flight from law enforcement;
    The presence of drugs in plain view;
    Other conduct and statements made by the accused; and
    The fact that the defendant rented the vehicle.
    
    Stover, 388 S.W.3d at 147
    (quoting State v. Woods, 
    284 S.W.3d 630
    , 640 (Mo. App.
    W.D. 2009)).
    Appellant contends that mere ownership of the truck is insufficient to convict him.
    Appellant also argues he made no statements indicating consciousness of guilt.
    Appellant points out the state did not show any commingling of his personal items with
    drugs, there were no drugs in plain view, and Appellant consented to a search. However,
    9
    this Court must look to all of the factors and the totality of the circumstances to analyze
    whether additional incriminating circumstances sufficiently connected Appellant to the
    methamphetamine hidden under the truck’s bed liner. 
    Stover, 388 S.W.3d at 147
    .
    Based on the evidence presented at trial, the state met its burden to show
    additional incriminating circumstances to support an inference of Appellant’s knowledge
    and control over the methamphetamine after examining the totality of the circumstances.
    A substantial quantity of methamphetamine with a large monetary value was found in the
    truck. As the truck’s owner and operator, it was reasonable for a jury to infer that
    Appellant had easy access to the bed liner where the methamphetamine was found. Once
    Sgt. McGinnis stopped the truck, he detected a strong cologne-like air freshener odor
    that, in his experience, was used as a masking agent for the drugs. Appellant made
    numerous false statements to Sgt. McGinnis.            Appellant and Maldonado gave
    inconsistent statements about their destination, the purpose of the trip, and the length of
    their acquaintance. Appellant also lied about the truck’s ownership. Both men exhibited
    signs of nervousness, avoided eye contact, and Maldonado became extremely agitated
    when Sgt. McGinnis searched the truck. Further, there was other conduct supporting an
    inference of knowledge and control over the methamphetamine in that Appellant used a
    single key and he succumbed to the “ruse” checkpoint by exiting the interstate prior to
    the checkpoint while traveling on a known drug corridor.
    The   record   contained    substantial   evidence   linking   Appellant    to   the
    methamphetamine in the truck’s bed liner beyond his ownership and mere presence in the
    vehicle. The circuit court did not err in overruling Appellant’s motion for judgment of
    10
    acquittal on the basis of insufficient evidence because the state proved all of the elements
    for second-degree trafficking under section 195.223.9.
    Accomplice Liability
    In the same point, Appellant argues the circuit court erred in overruling his motion
    for judgment of acquittal because the state failed to prove he acted together with or aided
    Maldonado in committing second-degree trafficking. Appellant contends that the state
    submitted the case on the theory of accomplice liability and that the verdict director
    required the jury to find either Appellant or Maldonado possessed the methamphetamine
    and Appellant acted together with or aided Maldonado in committing second-degree
    trafficking. Appellant argues that the fact that Maldonado’s conviction was vacated
    demonstrates there was insufficient evidence to support a finding that the two men acted
    together with or aided one another to commit second-degree trafficking.
    Appellant’s motion for judgment of acquittal argued the state failed to prove the
    elements of the crime alleged in the information and that the evidence was insufficient as
    a matter of law to support a finding of guilt. Neither Appellant’s motion for judgment of
    acquittal nor the motion for new trial contained any specific allegation that the state failed
    to prove Appellant acted together with or aided Maldonado to commit second-degree
    trafficking. While the better practice is to preserve specific claims of error for review,
    arguments concerning sufficiency of the evidence, even those not preserved for appeal,
    are reviewed on the merits, not for plain error. State v. Claycomb, 
    470 S.W.3d 358
    , 362
    (Mo. banc 2015).
    Section 562.041.1(2) states:
    11
    A person is criminally responsible for the conduct of another when …
    either before or during the commission of an offense with the purpose of
    promoting the commission of an offense, [one] aids or agrees to aid or
    attempts to aid such other person in planning, committing or attempting to
    commit the offense.
    The doctrine of accomplice liability embodied in section 562.041.1(2) “comprehends any
    of a potentially wide variety of actions intended by an individual to assist another in
    criminal conduct.” State v. Barnum, 
    14 S.W.3d 587
    , 591 (Mo. banc 2000). The evidence
    need not show the defendant personally committed every element of the crime to be
    convicted.   
    Id. “[A]ny evidence
    that shows affirmative participation in aiding the
    principal to commit the crime is sufficient to support a conviction.” State v. Wurtzberger,
    
    40 S.W.3d 893
    , 896 (Mo. banc 2001) (quoting State v. Clay, 
    975 S.W.2d 121
    , 139 (Mo.
    banc 1998)). Moreover, “[a]ll persons who act together with a common intent and
    purpose in the commission of a crime are equally guilty.” State v. Cella, 
    32 S.W.3d 114
    ,
    118 (Mo. banc 2000).
    The United States Supreme Court recently held that when examining a sufficiency
    challenge, “[t]he reviewing court considers only the ‘legal’ question ‘whether, after
    viewing the evidence in the light most favorable to the prosecution, any rational trier of
    fact could have found the essential elements of the crime beyond a reasonable doubt.”
    Musacchio v. United States, No. 14-1095, 
    2016 WL 280757
    at *5 (U.S. 2016) (quoting
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979)).
    However, ‘[a] reviewing court’s limited determination on sufficiency review thus does
    not rest on how the jury was instructed.” 
    Id. Accordingly, this
    Court will review
    12
    Appellant’s claim based upon how the crime was charged rather than examine the verdict
    director as Appellant urges. 7
    Here, Appellant was charged with acting alone or knowingly in concert with
    Maldonado to commit first-degree drug trafficking by transporting ninety grams or more
    of methamphetamine. Much of the evidence demonstrating Appellant’s possession of the
    methamphetamine       equally    supports    a    finding    Maldonado      possessed    the
    methamphetamine, including: a substantial quantity of methamphetamine with a large
    monetary value was found in the truck; a strong cologne-like air freshener odor used as a
    masking agent; multiple false statements made during the traffic stop; displays of
    nervousness and avoiding eye contact; and Maldonado’s extreme agitation after
    Appellant consented to Sgt. McGinnis searching the truck. Further, it was reasonable for
    a jury to infer that Maldonado was directing or navigating Appellant’s driving route for
    delivery because the GPS device was mounted on the passenger side in Maldonado’s
    clear view.
    Appellant’s argument that Maldonado’s conviction was vacated is immaterial
    because it does not take into account section 562.046(1), which states:
    It is no defense to any prosecution for an offense in which the criminal
    responsibility of the defendant is based upon the conduct of another that
    [s]uch other person has been acquitted or has not been convicted or has
    been convicted of some other offense or degree of offense or lacked
    criminal capacity or was unaware of the defendant’s criminal purpose or is
    immune from prosecution or is not amenable to justice[.]
    7
    The United States Supreme Court was careful to point out that its opinion did “not
    suggest that an erroneous jury instruction cannot result in reversible error just because the
    evidence was sufficient to support a conviction.” 
    Id. at *5,
    n.2.
    13
    Thus, Maldonado’s vacated conviction had no bearing on the state’s ability to submit an
    accomplice liability theory to the jury or to posit, in the alternative, that Maldonado
    possessed the methamphetamine as an element in the verdict director.
    Within the context of sufficient evidence demonstrating Maldonado possessed the
    methamphetamine, the record amply supports a finding that Appellant acted together with
    or aided Maldonado in committing second-degree drug trafficking. Appellant provided
    his vehicle to transport the methamphetamine and drove along the route Maldonado
    suggested. Appellant exited prior to the “ruse” checkpoint and made multiple false
    statements to Sgt. McGinnis to avoid detection.       These actions constituted sufficient
    evidence to submit the case on an accomplice liability theory. The circuit court did not
    err in overruling Appellant’s motion for judgment of acquittal on these grounds.
    Instructional Error
    Appellant alleges the circuit court erred in submitting Jury Instruction No. 6 to the
    jury, which alleged Maldonado possessed the drugs and that Appellant “acted together
    with or aided [Maldonado]” in committing that offense. Appellant argues this instruction
    misled and confused the jury because there was no evidence Appellant acted together
    with or aided Maldonado in committing second-degree trafficking and this was a disputed
    element at trial. Appellant reiterates Maldonado’s conviction was vacated on appeal
    because there was insufficient evidence that Maldonado possessed the drugs on
    substantially similar evidence.
    14
    Standard of Review
    When reviewing claims of instructional error, this Court will reverse the circuit
    court’s decision only if the instructional error misled the jury and, thereby, prejudiced the
    defendant.    
    Nash, 339 S.W.3d at 511
    .          “[R]eversal is only warranted when the
    instructional error is so prejudicial that it deprived the defendant of a fair trial.” 
    Id. at 511-12
    (quoting State v. Anderson, 
    306 S.W.3d 529
    , 534 (Mo. banc 2010)). Prejudice
    occurs when an erroneous instruction may have influenced the jury adversely. State v.
    Belton, 
    153 S.W.3d 307
    , 310 (Mo. banc 2005). However, there is no prejudice if an
    instruction is an accurate statement of law and supported by the evidence. State v. Avery,
    
    275 S.W.3d 231
    , 233 (Mo. banc 2009).
    Appellant did not object to Jury Instruction No. 6 at trial or raise any issue
    regarding the instruction in his motion for new trial. Accordingly, this allegation of error
    has not been preserved for appeal. Appellant requests plain error review. When the
    unpreserved allegation concerns instructional error, plain error exists when it is clear that
    the circuit court has so misdirected or failed to instruct the jury that manifest injustice or
    miscarriage of justice has resulted. State v. Ousley, 
    419 S.W.3d 65
    , 75 (Mo. banc 2013).
    Jury Instruction No. 6
    Jury Instruction No. 6, the verdict director, stated in pertinent part:
    A person is responsible for his own conduct and he is also responsible for
    the conduct of another person in committing an offense if he acts with the
    other person with the common purpose of committing that offense or if, for
    the purpose of committing that offense, he aids or encourages the other
    person in committing it.
    If you find and believe from the evidence beyond a reasonable doubt:
    15
    First, that on or about July 16, 2010, in the County of Saline, State of
    Missouri, the defendant or [Maldonado] possessed 90 grams or more
    of any material or mixture containing any quantity of
    methamphetamine, a controlled substance, and
    Second, that defendant knew or was aware of the presence and
    nature of the controlled substance,
    then you are instructed that the offense of trafficking in the second degree
    has occurred, and if you further find and believe from the evidence beyond
    a reasonable doubt:
    Third, that with the purpose of promoting or furthering the
    commission of that trafficking in the second degree, the defendant
    acted together with or aided [Maldonado] in committed that offense,
    then you will find the defendant guilty of trafficking the second degree.
    “A verdict-directing instruction must contain each element of the offense charged
    and must require the jury to find every fact necessary to constitute essential elements of
    [the] offense charged.” State v. Cooper, 
    215 S.W.3d 123
    , 125 (Mo. banc 2007) (quoting
    State v. Doolittle, 
    896 S.W.2d 27
    , 30 (Mo. banc 1995)). “A violation of due process
    arises when an instruction relieves the State of its burden of proving each and every
    element of the crime and allows the State to obtain a conviction without the jury
    deliberating on and determining any contested elements of that crime.” 
    Cooper, 215 S.W.3d at 126
    . “Plain error exists when an instruction omits an essential element and the
    evidence establishing the omitted element was seriously disputed.” 
    Stover, 388 S.W.3d at 154
    .
    Appellant does not dispute Jury Instruction No. 6 was in the proper form, only that
    it required the jury to find he acted together with or aided Maldonado when there was
    16
    insufficient evidence to support its submission. However, as stated previously, there was
    sufficient evidence to demonstrate either Appellant or Maldonado had knowledge and
    control over the methamphetamine in the truck and that a jury could reasonably infer
    Appellant acted together with or aided Maldonado to commit second-degree drug
    trafficking. Finally, Maldonado’s vacated conviction is inconsequential because section
    562.046(1) provides Appellant with no defense to these charges. The circuit court did not
    plainly err in submitting Jury Instruction No. 6 to the jury.
    Conclusion
    The circuit court’s judgment is affirmed.
    ___________________________
    GEORGE W. DRAPER III, JUDGE
    All concur.
    17