Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of Monroe County. Honorable Rachel L. Bringer Shepherd.
Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
Patricia L. Cohen, Judge. Lisa S. Van Amburg, P.J., and Philip M. Hess, J., concur..
Patricia L. Cohen, Judge
Austin Riley (Defendant) appeals from the judgment of conviction entered by the Circuit Court of the County of Monroe after a jury found him guilty of possession of a controlled substance. Defendant claims that the trial court erred in: (1) denying his motion for judgment of acquittal; (2) excluding evidence of an excited utterance; and (3) failing to sua sponte declare a mistrial or give a curative instruction during the prosecutor's closing argument. We affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: On March 1, 2012, Defendant and Joshua Painter drove to Columbia, Missouri, where Mr. Painter purchased methamphetamine. On the drive back to Monroe County, Defendant and Mr. Painter used some of the purchased methamphetamine.
At approximately 4:00 p.m. on March 2, 2012, Special Agents Jonathan Sutton and Rob Warner of the Northeast Missouri Narcotics Task Force executed a search warrant on the residence of Mr. Painter and his girlfriend, Jennifer Lehenbauer. The officers entered the residence into the living room, where Defendant was asleep on the couch and Mr. Painter was sitting on a chair. On a coffee table located two to four feet from the couch, the officers observed a clear plastic bag containing 0.19 grams of methamphetamine, a glass pipe, and a pen tube with residue. Defendant admitted that he had used methamphetamine several times with Mr. Painter and Ms. Lehenbauer at their residence and that he had used the seized methamphetamine the previous day.
The State charged Defendant with possession of a controlled substance. Prior to trial, the State filed a motion in limine to exclude as hearsay Mr. Painter's statement to Agent Warner during the search that the methamphetamine belonged to him. Defendant opposed the motion, asserting that statement was a relevant excited utterance.
To support his assertion, Defendant made a pre-trial offer of proof through the testimony of Agent Warner. Agent Warner's testimony established the following: He knocked on the front door of Mr. Painter and Ms. Lehenbauer's residence and announced " police, search warrant." Ms. Lehenbauer opened the door. Agent Warner was one of the first of at least ten officers to enter the residence. Agent Warner ordered Defendant, Mr. Painter, and Ms. Lehenbauer to the ground and placed Mr. Painter in handcuffs. Other officers cleared the residence to ensure no one else was present. When Agent Warner helped Mr. Painter off of the ground, Mr. Painter made a statement to the effect of " it's mine, it's all mine, she had nothing to do with it." Agent Warner instructed Mr. Painter to be quiet because he had not yet provided him Miranda warnings. Agent Warner estimated that thirty to sixty seconds elapsed between his entrance and Mr. Painter's statement. Following the offer, the trial court granted the State's motion.
At trial, Mr. Painter testified on behalf of Defendant. Mr. Painter testified that on the day of ...