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State v. Koch

Court of Appeals of Missouri, Southern District, First Division

January 28, 2015

STATE OF MISSOURI, Respondent,
v.
KENNY DEAN KOCH, Appellant

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY. Honorable Michael M. Pritchett, Circuit Judge.

For Appellant: Margaret M. Johnston, Columbia, Missouri.

For Respondent: Chris Koster, Attorney General and Dora A. Fichter, 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. - Concurring in Separate Opinion.

OPINION

Page 371

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

A jury convicted Kenny Dean Koch (" Koch" ) of the class D felony of possession of methamphetamine-related drug paraphernalia with the intent to use, in violation of section 195.233.[1] Koch was sentenced, as a prior and persistent offender, to seven years in the Missouri Department of Corrections, with credit being given for all time served. In Koch's single point, he challenges the sufficiency of the evidence to support his conviction. Finding merit to Koch's claim, we reverse the judgment and remand with directions.

Facts and Procedural Background

We review the evidence in the light most favorable to the jury's verdict, rejecting all contrary evidence and inferences. See State v. Newberry, 157 S.W.3d 387, 390 (Mo.App. S.D. 2005).

The evidence adduced at trial was that on April 11, 2012, Koch, and another man, Larry Rushing (" Rushing" ), arrived at Michelle Swihart's (" Swihart" ) mobile home around 6:30 a.m. Swihart had known Koch since 2007, but had not seen him for a long time. Both men stayed until about 10:00 a.m. Koch returned later that afternoon with Jamie Dent (" Dent" ) and asked Swihart to do some laundry that he had brought in a backpack. Swihart agreed, and Dent and Koch remained at the residence while Swihart did the laundry. However, Swihart made Dent and Koch leave around 4:30 p.m. because Koch discharged a firearm outside around Swihart's children.

Sometime after 10:00 p.m., Swihart testified she was in bed with her children, in the far end of her mobile home, when she awoke hearing voices outside her bedroom window. She identified the voices as being

Page 372

that of Rushing and another man, Joey[2] Kellis (" Kellis" ). From the conversation, she believed she was about to be robbed and called 9-1-1. Swihart told the dispatcher that she was alone in her mobile home with her three children and " was being robbed."

At 1:30 a.m. on April 12, 2012, Ripley County sheriff's deputies, Jesse Drumm (" Deputy Drumm" ) and Jeremy Walter (" Deputy Walter" ) were dispatched to Swihart's mobile home on suspicion of an armed burglary in progress. They arrived approximately ten minutes after receiving the call from dispatch. Upon arrival, Deputy Walter observed through the front window a man standing inside who then turned and ran toward the other end of the mobile home.

Deputy Drumm opened the front door, identified himself, and entered the residence with his gun drawn. He moved left to the kitchen area where he " staged" himself behind the refrigerator and looking down the hallway, began ordering people to come out; the living room was to his right. Deputy Drumm repeated his order to come out at least three times before Swihart came out of the back bedroom with a young child. Swihart told the officers there were three men and one woman still in the home with two firearms, and they were in the back room with her other children. Swihart appeared to be under the influence of drugs. Deputy Walter took Swihart and the child to his patrol car.

Upon re-entering the Swihart residence, Deputy Walter saw a " one-pot meth lab" (" meth lab" ) in the living room and so advised Deputy Drumm. The meth lab consisted of chemicals mixed in a twenty-ounce Mountain Dew bottle. Deputy Walter then called for assistance at which time Sergeant Mike Barton (" Sgt. Barton" ); Trooper Brian Arnold (" Trooper Arnold" ), a narcotics investigator with the Division of Drug and Crime Control of the Missouri State Highway Patrol; and several other law enforcement officers responded to the scene.

Upon arrival, Sgt. Barton announced his presence and Dent came out holding Swihart's nine-month-old child. Eventually, the remaining occupants of the residence were removed: Swihart's third child, Rushing, and Koch--who was the last to come out. Before coming out, Koch was seen by an officer, looking through a back door, standing in the bathtub. The bathroom was located between two bedrooms toward the back of the mobile home and across from a small hallway leading to the back door. Koch appeared to be under the influence of methamphetamines or heavy narcotics.

Swihart consented to a search of her residence and Trooper Arnold, who had been called to assist with the meth lab, entered Swihart's home. Trooper Arnold observed in the living room the Mountain Dew bottle and a black duffle bag containing numerous items of drug paraphernalia, all of which used to manufacture methamphetamine. The Mountain Dew bottle had ingredients in it for making methamphetamine, and Trooper Arnold recognized it as a meth lab.

Trooper Arnold also found a black backpack in the " middle bedroom" of the mobile home along with firearms and substances that later tested positive for methamphetamine; the backpack also contained ...


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