Court of Appeals of Missouri, Southern District, Second Division
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY. Honorable Jack A. L. Goodman, Circuit Judge.
GARY W. LYNCH, J. - Opinion author, DON E. BURRELL, J. - concurs, MARY W. SHEFFIELD, J. - concurs.
GARY W. LYNCH, J.
Brandon L. Goff (" Defendant" ) was found guilty by a jury of the class C felony of possession of a controlled substance (" Count I" ), see section 195.202, RSMo 2000, and the class A misdemeanor of possession of drug paraphernalia with intent to use (" Count II" ), see section 195.233, RSMo 2000. He was sentenced by the trial court to serve concurrent sentences of ninety days in the county jail on both counts. On appeal, Defendant challenges the sufficiency of the evidence supporting his convictions on both counts and the trial court's imposition of a ninety-day jail sentence on his conviction under Count II after the jury recommended that a fine, " in an amount to be determined by the court," be imposed rather than imprisonment for that conviction. Finding no merit in Defendant's first two points challenging the sufficiency of the evidence, but that the trial court plainly erred in sentencing Defendant to imprisonment on Count II, we affirm Defendant's conviction on Count I and the verdict of guilty on Count II and remand for re-sentencing on Count II.
Factual and Procedural Background
The evidence, viewed in the light most favorable to the jury's verdict, State v. Freeman, 269 S.W.3d 422, 425 (Mo. banc 2008), established the following. On July 9, 2009, Detective Chad Garoutte with the Lawrence County Sheriff's Department was dispatched to investigate a report of a subject at a TA Truck Stop driving a white Dodge pickup truck who " was acting weird" and was last seen traveling south on Highway 39 out of Mount Vernon. A description of the vehicle was provided, and when Detective Garoutte saw the truck, he turned his vehicle around to follow and observed the truck cross the center line and weave over to cross the fog line on the shoulder of the highway. Detective Garoutte activated his emergency lights, and the driver, identified as Defendant, turned the pickup into a parking lot. The detective pulled in behind so that his vehicle was " kind of facing the driver's side door" of Defendant's truck. When Detective Garoutte approached Defendant and asked for his driver's license, Defendant handed him a cell phone " as if he didn't understand the question or what was going on." Garoutte repeated his request for Defendant's license, but when Defendant began digging into a black backpack situated next to him in the driver's seat, Detective Garoutte ordered Defendant out of the vehicle. Defendant complied.
The driver's-side door remained open after Defendant exited, and Detective Garoutte observed a female passenger in the truck who was later identified as Tara Vaughn. The detective remained in front of his vehicle with Defendant, and as he talked to Defendant, he was able to observe Vaughn, who remained in the truck. Detective Garoutte described Defendant as " fidgeting constantly" and " saying something that wasn't making any sense" and " talking about things that were like off the wall[.]" Defendant told Garoutte " he was looking for a phone line or a phone box or something to that effect." The detective called for backup after observing Defendant's unusual behavior, and after just a few minutes, Missouri State Highway Patrol Trooper Robert Creasy arrived.
Trooper Creasy stayed with Defendant as Detective Garoutte approached Vaughn and directed her to step out of the vehicle. Trooper Creasy observed that Defendant " seemed excessively nervous for a traffic stop[,]" and " fidgety and kind of evasive with his answers to the questions" asked.
In the meantime, Trooper Creasy asked for and received Defendant's consent to search the vehicle and its contents. In the
cab of the pickup, he retrieved the black backpack. Inside, Trooper Creasy found a small black bag that contained " [a] rolled up Nike" sock in which he found " a needle and . . . a small plastic bag that contained a yellow substance." When field-tested, that substance was identified as methamphetamine. A syringe was also found within the sock. In addition, two empty prescription pill bottles bearing Defendant's name were found in " the bag[,]" and another pill bottle was found on the truck's seat. When Defendant was asked " if that was his bag[,]" Defendant affirmed that it was his. Detective Garoutte asked him numerous times, and each time, Defendant admitted that it was his.
Defendant was placed under arrest for possession of a controlled substance and paraphernalia and transported to the Lawrence County Sheriff's Department, where he was booked.
Defendant was charged with the class C felony of possession of a controlled substance and the class A misdemeanor of possession of drug paraphernalia with intent to use. During the jury trial on these charges, Defendant testified that when the officer stopped him and asked for his identification,
I proceeded to look through my backpack which I kept it -- the truck was a standard, a five speed. I just always kept it right there [referring to just next to his right leg] with my ID, wallet, money, everything there, suntan lotion. Anyway so I just started rummaging through it. At that time he stopped me and asked me to leave or get out of the vehicle.
Defendant further testified that he took his backpack with him regularly and that
almost every day I would bring a change of clothes because I work outside and get really dirty. So I would bring a change of clothes with me each day. Like I said, I keep my wallet in there, suntan lotion. I don't like stuff in my ...