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State v. Smith

Court of Appeals of Missouri, Southern District, Second Division

October 9, 2014

STATE OF MISSOURI, Respondent,
v.
LARRY LEE SMITH, JR., Appellant

Page 836

[Copyrighted Material Omitted]

Page 837

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY. Honorable Gayle L. Crane, Circuit Judge.

For Appellants: Craig A. Johnston and Casey A. Taylor, of Columbia, MO.

For Respondents: Chris Koster, Attorney General and Andrew C. Hooper, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concurs, DANIEL E. SCOTT, J. - Concurs.

OPINION

WILLIAM W. FRANCIS, JR., C.J./P.J.

Page 838

Larry Lee Smith, Jr. (" Smith" ), appeals his conviction, in a bench-tried case, of the class B felony of possession of a controlled substance with the intent to distribute in violation of section 195.211.[1] Finding no merit to Smith's claims, we affirm the judgment of the trial court.

Facts and Procedural Background

In reviewing the trial court's denial of a motion to suppress evidence, and objections to that evidence at trial, we consider the evidence presented at the suppression hearing and at trial. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). Viewed in the light most favorable to the judgment, disregarding contrary evidence and inferences, the evidence presented at trial was as follows. State v. Foster, 392 S.W.3d 576, 578 (Mo.App. S.D. 2013).

On the night of December 31, 2011, Carthage Police Officer Nathan Moore (" Officer Moore" ), while driving his patrol car, noticed a vehicle abort a turn into a driveway, then make the first two available turns after he began following it. The car eventually pulled to the curb, turned off its lights, and parked. Smith, who was riding in the front-passenger seat, exited the vehicle and quickly approached a nearby house. After reaching the front door, Smith paused for a few moments looking at his cell phone. At that time, Officer Moore recognized Smith as a known drug user and dealer. Smith knocked on the front door, and after briefly conversing with two individuals in the house who shook their heads " no," Smith turned around, saw Officer Moore's car, and instead of returning to the car in which he had been riding, he briskly walked away from the house through the yards of adjoining houses.

Officer Moore pulled up next to Smith, exited his patrol car, and called Smith over to his car. Officer Moore instructed Smith to place his hands on the patrol car so that Officer Moore could perform a Terry search[2] for weapons on Smith's person. Smith initially complied but as Officer Moore touched Smith, Smith quickly took his right hand off the hood of the patrol car and reached for his right waistband and pocket area. Officer Moore grabbed Smith's right hand and tried to place it behind his back while giving Smith verbal commands to stop resisting. Instead, Smith stiffened his right arm, leading to a brief struggle.

Officer Moore shoved Smith forward toward the hood of his car, stepped back, and fired his taser at Smith. Thereafter, Officer Moore was able to handcuff Smith and place him under arrest for resisting arrest. In Officer Moore's search of Smith, he found a rolled marijuana cigarette in Smith's right-front pocket. Officer Moore then placed Smith in the back of his patrol car.

Officer Moore approached the driver of the vehicle Smith had been riding in, and she consented to a search of her vehicle. Officer Moore found a vacuum-sealed bag ...


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