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State v. Gilmore

Court of Appeals of Missouri, Southern District, Second Division

March 30, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
VICKILEANN GILMORE, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable James K. Journey, Circuit Judge


          Nancy Steffen Rahmeyer, J.

         A jury found Vicki Leann Gilmore ("Defendant") guilty of "possession" of methamphetamine. The trial court subsequently sentenced her as a prior drug offender to seven years in the Department of Corrections, suspended execution of that sentence, and placed her on supervised probation for five years. Defendant appeals, asserting in a single point that the evidence was insufficient to support the jury's verdict. We deny Defendant's point and affirm the trial court's judgment.

         At trial, the State presented the following evidence: Deputy Alec Lawson with the St. Clair County Sheriffs Office testified that, in September 2014, he was "involved in an investigation regarding drug activity at a trailer in Appleton City, Missouri, " in which the subjects of the investigation were "Josh Foley" and Defendant. In the course of the investigation, Deputy Lawson performed "trash pulls" in the "middle of the night" of trash from the trailer, and "went through it looking for items associated with drug use and sale."

         The trash pulls were usually done between 1:00 and 3:30 in the morning to reduce the chance of being seen. In a three-to-four-week period in September 2014, Deputy Lawson pulled the trash at the trailer on three occasions and "checked" the trailer on another three occasions. In the trash pulls, Deputy Lawson found "[a]pproximately three to four" "[l]arge plastic bags that had the corners cut out of them." The significance to Deputy Lawson of the plastic bags with missing corners was that "[t]he corners are often used for packaging of the drugs for sale." During one trash pull at "[a]pproximately 2:30 a.m., " Deputy Lawson observed Defendant step out of the trailer onto the porch with Foley.

         Although Deputy Lawson only observed Defendant at the trailer physically on this one occasion, Deputy Lawson observed one of two vehicles that Deputy Lawson "know[s] to belong" to Defendant parked at the trailer "[a]ll six times" Deputy Lawson "went by" the trailer "during that three-week span." On cross-examination, Deputy Lawson stated that he has never observed Foley drive either of Defendant's vehicles. On October 1, 2014, law enforcement went to the trailer. Before law enforcement actually reached the trailer, Foley ran out the back door of the trailer and was taken into custody.

         Deputy Lawson "heard people in the [trailer], " and "stepped onto the back porch" of the trailer from where he saw Defendant and another person[1] in the trailer - Defendant "was walking towards the back door." Deputy Lawson asked Defendant and the other person to come outside the trailer. At that point, Defendant asked Deputy Lawson if she could leave and Deputy Lawson directed her to Detective Schoenfeld.

         Trent Beebe testified that he works for Ford Motor Company at a plant in the Kansas City area "Friday day, Saturday day, Sunday night and Monday night." Mr. Beebe lives in St. Clair County when he is not working at the plant, and owns a trailer in Appleton City that he rented to Foley and a female named Ashley Mitchell. Mr. Beebe "never saw [Ashley Mitchell] around." Mr. Beebe met a person he knew as Vicki Gilmore at the trailer on two occasions - once when he jump-started her vehicle and a second time when, "as far as" Mr. Beebe knew, only she was present at the trailer. Mr. Beebe observed the vehicle he jump-started for the woman he knew as Vicki Gilmore at the trailer "[s]omewhere in [the] neighborhood" of "[m]aybe - ten times, maybe" over "[m]aybe a two-month period." Mr. Beebe never received any rent for the trailer so he would go by the trailer frequently in attempts to collect rent from Foley. The trailer had "[t]wo bedroom[s], living room, bathroom."

         Detective Kevin Schoenfeld with the Mid-Missouri Drug Task Force testified it is a pretty common practice for those who are selling controlled substances to use the corners from Ziploc bags to package a controlled substance including methamphetamine. On October 1, 2014, when law enforcement went to the trailer expecting to find Foley and Defendant at the trailer, Detective Schoenfeld met with Defendant. Detective Schoenfeld told Defendant about complaints of drug activity at the trailer, and asked Defendant if there was anything illegal within the trailer. Defendant replied that there was drug paraphernalia in the trailer. Detective Schoenfeld then told Defendant that (1) Foley had also admitted to the drug paraphernalia, but "had refused consent to search" the trailer, (2) law enforcement was applying for a search warrant for the trailer, and (3) the trailer would be secured to make sure nobody enters the trailer. When Defendant asked if she could leave, Detective Schoenfeld told her she could leave but that her property would be detained until the search warrant was obtained. Defendant then "consented to a search of herself, her vehicle and her cellular phone."

         A text message on Defendant's phone from somebody else inquired about a "20 bag." In Detective Schoenfeld's experience, a "20 bag" is a common term for $20 worth of marijuana. When asked about the text message, Defendant told Detective Schoenfeld that Foley and Defendant did sell marijuana, but they were currently out of marijuana because they had smoked the rest that they had the previous night. Defendant's purse was in the trailer on the floor in a "very short hallway" leading toward the bathroom and the back bedroom.

         A search warrant was obtained. In the course of executing the search warrant, Detective Schoenfeld found the following items in the trailer: (1) a glass pipe commonly used to smoke methamphetamine with a white powder residue in the bowl that was pretty consistent with the appearance of methamphetamine after the methamphetamine has been consumed[2] (found in the top cabinet of a console stereo), (2) a small plastic Ziploc-type bag that contained a small amount of white powder that was consistent with the appearance of methamphetamine and that Detective Schoenfeld, based on his training and experience, believed was methamphetamine[3] (found in an ashtray on the kitchen counter in plain view), (3) a "marijuana water bong" and a "small marijuana pipe" (found in the kitchen cabinet over the stove), (4) a set of digital scales and a corner of a plastic bag that contained a crystalline substance that Defendant stipulated at trial was methamphetamine (found in a closed medicine cabinet in the trailer bathroom), (5) a second set of digital scales (found in the rear bedroom right next to the bathroom), and (6) a Ziploc bag with both corners cut off (found lying on a pile of trash next to the back door of the trailer). In addition, a magnetic picture of Defendant and Foley was on the refrigerator in the kitchen of the trailer.

         In a single point, Defendant contends "[t]he trial court erred in overruling" Defendant's motion for judgment of acquittal "and entering judgment" because "there was not sufficient evidence to prove beyond a reasonable doubt that [Defendant] had knowledge about the methamphetamine found in the bathroom or that she ever exercised control over it, as it was located inside a bathroom medicine cabinet out of plain view and there was no evidence presented that she was ever in the bathroom, nor any evidence connecting her to the methamphetamine."

"To determine whether the evidence presented was sufficient to support a conviction and to withstand a motion for judgment of acquittal, [[4] this Court does not weigh the evidence but rather accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences." State v. Ess, 453 S.W.3d 196, 206 (Mo. banc 2015) (internal quotations omitted). This Court, however, "may not supply missing evidence, or give the [state] the benefit of unreasonable, speculative or forced inferences." State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (internal quotations omitted). Evidence is sufficient to support a conviction when "there is sufficient evidence from which a reasonable [fact-finder] might have found the defendant guilty ...

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