Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Christopher E. McGraugh.
Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
Patricia L. Cohen, Presiding Judge. Roy L. Richter, J., and Robert M. Clayton III, J., concur.
Patricia L. Cohen, Presiding Judge
Carlton Porter (Defendant) appeals the judgment of conviction entered by the Circuit Court of the City of St. Louis after a jury found him guilty of trafficking drugs in the second degree, possession of a controlled substance with the intent to distribute, and possession of drug paraphernalia with the intent to use. Defendant claims that the trial court erred in: (1) overruling his motion for judgment of acquittal on the charge of possession of drug paraphernalia with the intent to use; and (2) failing to dismiss on double jeopardy grounds the charge of possession of a controlled substance with the intent to distribute. We affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: On February 22, 2012, while conducting surveillance in an area with " a lot of PCP [phencyclidine] being sold or bought," Officers Mark Pasionek and Jarrett Neff from the St. Louis Metropolitan Police Department (SLMPD) observed Defendant approach a blue vehicle, talk briefly with the vehicle's passenger, and walk across the street. Once across the street, Defendant kneeled down, retrieved a bottle and package of More-brand cigarettes from a hole in the ground, dipped a More cigarette into the bottle, and " inhale[d] the cigarette to ... get the liquid up into the cigarette." Defendant then returned to the vehicle and engaged in a " hand-to-hand transaction" with the passenger. After the vehicle drove away, the officers contacted Officer Ryan Murphy and instructed him to detain the vehicle. When Officer Murphy pulled over the vehicle, he seized a More cigarette " dipped in" what was later determined to be, PCP.
Approximately forty-five minutes later, Officers Pasionek and Neff observed a black vehicle stop at the same location as the first vehicle. Defendant approached the vehicle and spoke with the passenger. Defendant then returned to the hole across the street, removed a More cigarette, dipped it in the bottle, and " inhaled" the liquid into the cigarette. Defendant returned to the black vehicle and handed the More cigarette to the passenger in exchange for money. After the black vehicle drove away, the officers contacted Officers Matthew Frichtl and Andrew Kleffner, who stopped the car and seized a More cigarette containing a substance later determined to be PCP.
At the request of Officers Pasionek and Neff, Officers Andrew Kleffner, Ryan Kinhorst, Ryan Murphy, and Miguel DeBourg conducted a pedestrian stop of Defendant at their surveillance location. The officers also searched the hole from which Officers Pasionek and Neff observed Defendant retrieve the bottle and More cigarettes after speaking with the passengers. From the hole, the officers seized the bottle and More cigarettes that Defendant used during his transactions with the ...