Court of Appeals of Missouri, Western District, Third Division
FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI THE
HONORABLE DENNIS A. ROLF, JUDGE
Alok Ahuja, Presiding Judge, Victor C. Howard, Judge and
James E. Welsh, Judge.
C. HOWARD, JUDGE.
Davidson appeals his conviction and sentence following a jury
trial for tampering in the first degree, section
569.080. In his first point on appeal, Davidson
claims the trial court erred in denying his motion for
judgment of acquittal because the evidence was insufficient
to support the conviction. In his second point on appeal,
Davidson claims the trial court plainly erred in allowing the
prosecutor's closing argument with respect to the
definition of the word possess.
reverse Davidson's conviction for tampering in the first
degree and vacate the associated sentence.
1, 2015, Cody Beall backed his truck out of his garage in
Overland Park, Kansas, and got out of the truck to move his
trash can. While Beall was still out of his truck, he saw a
man jump into his truck. Beall tried to stop the man from
taking his truck but was unsuccessful. A black sedan followed
the truck as it sped away.
22, 2015, law enforcement officer Sergeant Munson was
dispatched to an emergency call in Lafayette County,
Missouri, involving Beall's stolen truck. The driver of
the truck attempted to flee from Sergeant Munson and ended up
crashing into a ditch. The truck tires were spinning as
though someone was trying to drive the truck out of the
ditch. Sergeant Munson drew his service weapon and started
giving commands toward the vehicle. The truck's windows
were tinted too dark for Sergeant Munson to be able to see
inside the vehicle.
men, one older and one younger, ran from behind the vehicle
away from Sergeant Munson. The appellant in this case, Tommy
Davidson, was the older man running from the stolen truck.
The younger man was in the lead and jumped a fence and headed
north while Davidson continued west. Sergeant Munson chased
Davidson. Davidson refused to comply with Sergeant
Munson's numerous commands for Davidson to get on the
ground. Davidson stopped running and turned to face Sergeant
Munson, and Sergeant Munson tased Davidson.
same time, Timothy Kelsey arrived home and backed into his
garage. He heard sirens and squealing tires and saw the
police car and stolen truck. He watched people get out of the
stolen truck and heard Sergeant Munson yelling for the people
to stop. The younger male ran though Kelsey's yard and
disappeared. Then a woman ran past Kelsey, got into
Kelsey's truck, and drove off in it. Kelsey tried to
chase his stolen truck. As Sergeant Munson was kneeling on
the ground handcuffing Davidson, Kelsey's stolen truck
that was being driven by the woman hit Beall's stolen
truck and almost hit Sergeant Munson and Davidson.
Gibson arrived to assist Sergeant Munson. Deputy Gibson
transported Davidson to the hospital while Sergeant Munson
remained to search for the younger man who had fled and to
process Beall's stolen truck. The keys were still in the
ignition. Both passenger side doors of the truck were open. A
woman's purse was on the front floorboard. A man's
wallet was on the back floorboard. Inside the driver's
door panel was an inoperable 22 pistol revolver. Six license
plates from both Missouri and Kansas were in the pouches on
the back of the front seats. One of those license plates was
listed as stolen.
wallet contained two sets of identification, one for Davidson
and one for a Jeremy Davidson. While in the patrol car on the
way to the hospital, Davidson overheard radio traffic for
Jeremy Davidson's identification. Davidson identified
Jeremy as his son.
was charged in Lafayette County with first degree tampering,
felony resisting arrest, leaving the scene of the accident,
failing to obey a sheriff, and receiving stolen property. The
last three counts were dismissed before trial.
did not testify at trial. He did, however, call Tara Cochran
as a witness. Cochran is the woman who stole Kelsey's
truck. She had pleaded guilty to multiple charges, including
attempted robbery, tampering with a motor vehicle, tampering
with physical evidence, resisting arrest, and leaving the
scene of an accident. Cochran was sentenced to fifteen years
for those crimes. Cochran had prior convictions for
possession of controlled substances, aggravated burglary, and
testified as follows: She "was on meth really bad"
the day Davidson was arrested by Sergeant Munson. Jeremy
picked her up in the stolen truck that day to help her move
her belongings from the place she had been living. After
picking her up, Jeremy then picked up Davidson. Jeremy was
driving, Cochran was in the passenger seat, and Davidson was
in the back seat behind Cochran. Neither Cochran nor Jeremy
told Davidson that the truck was stolen. They picked up
Cochran's belongings, and began driving on the highway.
When the group became aware of police lights and sirens
behind them, Jeremy took off. Davidson was quiet during the
police chase. After they crashed, Cochran jumped out and
stole Kelsey's truck. At no time did Davidson drive the
cross-examination, Cochran testified as follows. In her
charge for tampering in the first degree, she was acting in
concert with Jeremy and Davidson for possessing the stolen
truck. Jeremy and Davidson saw each other more than once a
day, and Davidson would notice what type of vehicle Jeremy
drove. Jeremy did not have a job, and it was pretty clear
that the stolen truck did not belong to Jeremy.
motion for judgment of acquittal at the close of the
State's evidence, Davidson argued that he was only a
passenger in the stolen truck. He noted that his wallet was
found in the back seat of the truck. Davidson claimed he was
thus guilty of tampering in the second degree as opposed to
tampering in the first degree. The court denied the motion.
closing argument, the State said that when acting in concert,
"[a] person is responsible for his own conduct and the
conduct of others" and that "[t]hey were possessing
that stolen truck together." The State argued:
Folks, that is what we have. The word possessed is used in
there. They possessed the vehicle. And I have the feeling
that [the defense attorney] is going to get up here and argue
that riding in a vehicle is not possessing it. I am
possessing my spot at this table. I don't own it. I'm
not going to carry it out of here. My name is not on it. But
I am possessing my spot at the table. I'm using it.
I'm sitting here. I'm possessing it.
[The prosecutor's assistant] is possessing this spot on
the table. We are both possessing it. If I ask [the
assistant] to scoot down a seat, then I can possess that part
of the table. She could switch seats. She could sit here. We
are both possessing it because we are using it; it's our
exclusive use right here.
Just like when you are in a vehicle, it doesn't matter if
you are driving or riding, when you are in that seat being
transported from one place to another, your stuff is all over
that truck, your wallet is found in the vehicle, you're
possessing that vehicle. It doesn't matter if you are
And there is a definition in here that explains what
possession is. Part of it is control, but there is more to
it. A person has constructive possession if such person has
the power and the intention at a given time to exercise
dominion and control over the object, either directly or
through another person or persons.
Folks, because of the way this vehicle crashed and the
tinting on the windows, we don't know who was driving.
Sergeant Munson can't tell you who was driving. He
doesn't know who was sitting where. If you believe the
defense witness, the Defendant was sitting in the back. But,
it doesn't matter. The way it is charged, acting in
concert, they acted together to possess that vehicle. That is
exactly what happened. Because all three of them were acting
together, it's acting in concert. It's constructive
possession. He is guilty.
did not object to this closing argument. He argued in his
closing that there are two statutes: tampering in the first
degree for possessing and tampering in the second degree for
riding in a stolen vehicle. He claimed he never had control
of the stolen truck because he was not driving it, that he
panicked when the truck crashed while fleeing from police,
and that he came to his senses and had turned around to face
Sergeant Munson when he was tased.
The jury was given the following instructions:
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 offense, he aids or encourages the other
person in committing it.
As to Count I, if you find and believe from the evidence
beyond a reasonable doubt:
First, that on or about June 22, 2015, in the County of
Lafayette, State of Missouri, the Defendant or [Jeremy] or
[Cochran] knowingly possessed a certain gray Lincoln
automobile owned by Cody Beall, and
Second, that the Defendant or [Jeremy] or [Cochran] possessed
the automobile without the consent of the owner, and
Third, that the Defendant or [Jeremy] or [Cochran] possessed
it, knowing that the Defendant or [Jeremy] or [Cochran] did
so without the consent of the owner, then you are instructed
that the offense of ...