DocketNumber: No. ED 106150
Citation Numbers: 563 S.W.3d 182
Filed Date: 12/11/2018
Status: Precedential
Modified Date: 1/21/2022
ATTORNEY FOR APPELLANT: Christian Lehmberg, Public Defenders Office, 1000 West Nifong, Bldg. 7 Ste. 100, Columbia, MO 65203.
ATTORNEY FOR RESPONDENT: Joshua D. Hawley, Attorney General, Evan Joseph Buchheim, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102.
Honorable Mary K. Hoff *185Rickie Allen Reagan, Sr. ("Defendant") appeals from the Judgment upon his conviction following a jury trial for one count of unlawful possession of a firearm by a felon in violation of Section 571.070 RSMo 2000
Factual and Procedural Background
We review all evidence and reasonable inferences drawn from the evidence in the light most favorable to the jury's verdict. State v. McCauley,
While Officer Courville and Officer Barton entered the residence, Officer Stetina began speaking with Defendant to gather information. Defendant explained that the disturbance began after he had a verbal argument with Melissa earlier in the day so that Melissa left the residence with a friend. As Defendant spoke, Officer Stetina noticed two bullet holes in the truck and one in the front door of the residence. When asked about them, Defendant explained that after Melissa left, he told his son, John Reagan ("John"), to retrieve "my gun"-a Hi Point 9 millimeter-and "had [John] shoot his truck," but gave no reasoning as to why he told John to do so. As for the door, Defendant explained that earlier in the day, he heard a sound outside, retrieved his firearm, and while searching for the source of the noise, accidentally discharged it so that a round struck the door.
Meanwhile, inside the residence, Officer Courville and Officer Barton found Melissa sitting in a chair in the living area. The officers noticed that Melissa was "kind of falling asleep ... [,] fidgety, distraught, nervous," and "appeared to be under the influence of a depressant." The officers observed the Hi Point 9 millimeter handgun on the chair with Melissa, and they seized it. When the officers spoke with Melissa, she accused Defendant of having the handgun and of shooting the door of the residence. She explained that she was outside the house when Defendant shot the *186door and that she then "ran inside to try to get the gun." While inside, the officers found spent shell casings and a 9 millimeter round in the bedroom.
Officer Courville then walked outside and asked Officer Stetina to detain Defendant. Officer Stetina did so and secured Defendant in his patrol car. Soon thereafter, Officer Stetina read Defendant his Miranda
On June 1, 2016, Defendant was charged by information, subsequently amended on September 5, 2017, as a prior offender with unlawful possession of a firearm. The information alleged that on "February 1, 2016, ... [D]efendant knowingly possessed a Hi Point 9 [millimeter] handgun, a firearm, and on October 26, 2007, ... [D]efendant was convicted of the felony of driving while intoxicated."
A jury trial was held on September 5, 2017. The parties stipulated that Defendant had been convicted of felony driving while intoxicated in October 2007. At trial, Officer Stetina testified that Defendant admitted to instructing John to retrieve "my gun" and to shoot his truck, to accidentally discharging the firearm while searching for the source of a noise, and, over Defendant's objection, to pointing the unloaded firearm at Melissa while telling her to swear that she "wasn't doing anything outside of the home."
Defendant, in turn, presented evidence from his friend, John Vickers, who testified that he briefly visited Defendant on February 1, 2016 and saw no firearm while he was there. Additionally, Defendant's son John testified that Defendant never told him to shoot the truck; John explained that the bullet holes in the truck were the result of his missing a target while shooting at it for target practice.
During the instruction conference, the trial court asked whether Defendant had any objections to any of the instructions offered by the State, including Instruction 5, the verdict director. Instruction 5 read:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about February 1, 2016, in the County of Washington, State of Missouri, the defendant possessed a Hi Point 9 [millimeter] handgun, a firearm, and
Second, that on October 26, 2007, the defendant was convicted of a felony in the Circuit Court of St. Francois County, Missouri, and
Third, that the defendant acted knowingly with respect to the facts and circumstances submitted in this instruction,
then you will find the defendant guilty of unlawful possession of a firearm.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As used in this instruction, the term "firearm" means any weapon that is designed or adapted to expel a projectile by the action of an explosive.
As used in this instruction, the term "possessed" means having actual or constructive possession of an object with knowledge of its presence. A person has *187actual possession if he has the object on his person or within easy reach and convenient control. A person has constructive possession if he has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of an objection, possession is sole. If two or more persons share possession of an object, possession is joint.
Instruction 8, in turn, explained that the jury's "verdict, whether guilty or not guilty, must be agreed to by each juror" and that the jury's "verdict must be unanimous." Defendant answered that he had no objection to any of the instructions.
During closing arguments, the State argued that by "his own admission," "there were various ways ... in which the [D]efendant possessed the firearm" on February 1, 2016. The State argued that Defendant had constructive possession of the firearm when he instructed John to shoot his truck, and had actual possession of it when he held it while searching for the source of a noise and while pointing it at Melissa. Defendant countered that the evidence failed to establish that he either actually or constructively possessed the firearm.
Following argument, the jury found Defendant guilty of unlawful possession of a firearm. On September 22, 2017, Defendant filed a motion for acquittal, or in the alternative for a new trial, arguing that the trial court erroneously admitted improper propensity evidence stemming from his pointing the firearm at Melissa. On November 20, 2017, the trial court denied Defendant's motion and sentenced Defendant to five years of imprisonment. Defendant's appeal follows.
Jury Instruction
In his first point, Defendant argues that the trial court plainly erred in submitting Instruction 5 to the jury because it violated his right to a unanimous jury verdict
"Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error." State v. Severe,
The Missouri Constitution provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate." Mo. Const. art. I, sec. 22(a). The Missouri Supreme Court has interpreted "as heretofore enjoyed" to mean protecting "all the substantial incidents and consequences that pertain to the right to jury trial at *188common law," including a unanimous jury verdict. State v. White,
Defendant argues that Instruction 5 failed to ensure that the jury reached a unanimous verdict because it required only that the jury generally find that he unlawfully possessed a firearm on February 1, 2016 and did not require the jury to agree on a specific instance of such possession on that date to find him guilty. Defendant asserts that because the State presented evidence that he constructively or actually possessed the firearm by instructing John to shoot his truck, holding it when it accidentally discharged, and holding it while pointing it at Melissa, the jurors might have agreed that Defendant possessed a firearm, but might not have unanimously agreed as to which of the three instances constituted the basis for his conviction.
Defendant thus claims that this is a "multiple acts" case. "A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count."
In asserting that this case involves multiple acts of Defendant's possession of the firearm, Defendant relies heavily upon Celis-Garcia. In Celis-Garcia, two victims alleged that the defendant and her boyfriend engaged in multiple acts of sexual abuse on several separate occasions and at different locations.
Celis-Garcia is distinguishable here. Contrary to Defendant's assertion, this is not a multiple acts case, but rather, is a case concerning a proscribed course of conduct. "A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and ... [s]uch person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony." Section 571.070.1(1). "Crimes of *189possession are generally recognized in our criminal law as continuing offenses because '[t]he possession is a continuing offense, lasting as long as the act of possession does.' " State v. Wright,
For example, in U.S. v. Jones,
We find Jones instructive. Possession of a firearm, being a crime of possession, accordingly criminalizes a continuing course of conduct, wherein each "repeated" offense is connected to the last, and multiple "acts" cannot be distinguished. See Escobar,
*190State v. Richter,
Propensity Evidence
In his second point, Defendant argues that the trial court abused its discretion in admitting evidence that he pointed a firearm at Melissa because such evidence was improper propensity evidence. We disagree.
We review the trial court's admission of evidence for an abuse of discretion. State v. Watson,
On appeal, Defendant claims that Officer Stetina's testimony that Defendant had admitted to pointing the firearm at Melissa earlier in the evening was improper propensity evidence because it was introduced by the State merely to show that he "acted in conformity with his character and possessed a firearm," such that it was more prejudicial than probative. This argument is unavailing.
"In general, evidence of uncharged crimes is not admissible for the purpose of showing the defendant's criminal character or propensity to commit such crimes." State v. Young,
Here, Officer Stetina testified that while he interviewed Defendant, Defendant admitted to pointing the firearm at Melissa and telling her to "swear on a bible that she wasn't doing anything outside of the home." Evidence that Defendant pointed the firearm at Melissa provided a complete and coherent picture of the events that occurred in that it tended to show that Defendant was physically holding the firearm at the time he threatened her. Such evidence went to establish that Defendant had actual possession of the firearm, and therefore, legitimately tended to prove Defendant's guilt of the charged crime of unlawful possession of a firearm. In turn, the probative value of this evidence, which bore directly upon the issue of possession, was not outweighed by its prejudicial effect. The trial court did not *191abuse its discretion in admitting this evidence. Point II is denied.
Conclusion
The Judgment is affirmed.
Lisa P. Page, C.J., and Theresa Counts Burke, Sp. J., concur.
Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended.
Because Defendant, Melissa Reagan, and their son John Reagan have the same surname, we refer to Melissa and John by their first names. No familiarity or disrespect is intended.
Miranda v. Arizona,
Defendant premises his claim to a unanimous jury verdict on both the Missouri and United States constitutions. However, "the federal constitution does not require a unanimous verdict in state prosecutions," and as such, we consider only Defendant's claim that his rights under the Missouri Constitution were violated. State v. Celis-Garcia,