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State v. Zetina-Torres

Court of Appeals of Missouri, Western District, Third Division

June 9, 2015

STATE OF MISSOURI, Respondent,
v.
LUIS ZETINA-TORRES, Appellant.

Appeal from the Circuit Court of Saline County, Missouri The Honorable Dennis Allen Rolf, Judge

Before: Mark D. Pfeiffer, PJ., Gary D. Witt, Anthony Rex Gabbert, JJ.

Anthony Rex Gabbert, Judge.

Luis Zetina-Torres appeals from a judgment entered upon a jury verdict convicting him of trafficking in the second degree pursuant to Section 195.223.9, RSMo Cum. Supp. 2009. He asserts two points on appeal. First, he contends that the circuit court erred in overruling his motion for judgment of acquittal at the close of the evidence, and in entering judgment and sentence on the jury's guilty verdict against him for trafficking in the second degree, because there was insufficient evidence that he possessed, knew of, or was aware of the presence of the methamphetamine hidden under the bed liner of the truck that he and Roberto Maldonado-Echeverria were in, or that he acted together with or aided Maldonado-Echeverria in committing trafficking in the second degree. Second, he contends that the court plainly erred in giving Instruction No. 6, which alleged in Paragraph First that Maldonado-Echeverria possessed the methamphetamine, and which also alleged in Paragraph Third, that Zetina-Torres acted together with or aided Maldonado-Echeverria in committing that offense, because there was no evidence to support either of those propositions. We reverse the circuit court's judgment and discharge the appellant.

Procedural History and Factual Background

Zetina-Torres was charged in 2010 with trafficking in the first degree in violation of Section 195.222. Zetina-Torres was the owner and driver of a vehicle that he and passenger Maldonado-Echeverria were in when it was stopped by a Highway Patrol officer and a large quantity of methamphetamine was discovered hidden in the liner of the truck bed. Zetina-Torres was charged and tried on the theory that he either acted alone or with co-defendant Maldonado-Echeverria in committing the offense. A jury convicted Zetina-Torres of trafficking in the second degree. Zetina-Torres appealed his conviction alleging insufficient evidence to support the conviction as well as a prejudicial discovery violation by the State. On April 30, 2013, this court issued an opinion regarding that appeal. State v. Zetina-Torres, 400 S.W.3d 343 (Mo. App. 2013). Therein, we denied Zetina-To rres's claim that there was insufficient evidence to support his conviction, indicating that there was ample evidence to support that he acted alone in committing the offense, but granted a reversal of his conviction on his claim of a prejudicial discovery violation. Id.

Meanwhile, on May 22, 2013, this court issued a mandate regarding Zetina-Torres's co-defendant, Maldonado-Echeverria. Maldonado-Echeverria, 398 S.W.3d 61 (Mo. App. 2013).[1]Like Zetina-Torres, Maldonado-Echeverria had been charged with either acting alone or with co- defendant Zetina-Torres in committing trafficking in the second degree. Id. He was convicted after a bench trial and he appealed his conviction to this court. Id. He argued that the evidence was insufficient to support his conviction. Id. We agreed and reversed his conviction. Id. at 68.

Thereafter, on February 13 and 14, 2014, Zetina-Torres was retried by jury. The evidence presented at his second trial was substantially similar to the evidence presented at his first trial and to the evidence presented at Maldonado-Echeverria's trial. At the close of the evidence, Zetina-Torres moved for judgment of acquittal and the court denied his motion.

The case was submitted to the jury on a theory of accomplice liability and required the jury to find Zetina-Torres guilty only if it concluded that, with the purpose of promoting or furthering the commission of trafficking in the second degree, the defendant acted together with or aided Roberto Maldonado-Echeverria in committing that offense. Zetina-Torres was found guilty of trafficking in the second degree and received a jury recommended prison sentence of twenty years. Zetina-Torres appeals.

Point I: Insufficient Evidence

In Zetina-Torres's first point on appeal he contends that the circuit court erred in overruling his motion for judgment of acquittal at the close of the evidence, and in entering judgment and sentence on the jury's guilty verdict against him for trafficking in the second degree, because there was insufficient evidence that he possessed, knew of, or was aware of the presence of the methamphetamine hidden under the bed liner of the truck that he and Roberto Maldonado-Echeverria were in, or that he acted together with or aided Maldonado-Echeverria in committing trafficking in the second degree. With regard to his involvement in the crime with Maldonado-Echeverria, Zetina-Torres asserts that the State failed to prove the third element contained in the verdict director, that he "acted together with or aided Roberto Maldonado-Echeverria in committing that offense." Zetina-Torres argues that the State elected to include that element in the verdict director and should, therefore, be required to prove that element. We agree that, based on unique circumstances of this case, there was insufficient evidence to convict Zetina-Torres given the specific verdict director that was submitted to the jury.

The verdict director submitted to the jury stated:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that ...

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