Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Cape Girardeau County Honorable
Michael E. Gardner
M. Hess, Judge.
D. Clark was found guilty by a jury in the circuit court of
Cape Girardeau County of unlawful possession of a firearm and
possession of a controlled substance arising out of
information received by police from a confidential informant
that a weapon was inside a vehicle parked at a pawn shop.
Clark, a prior felony offender, was sentenced to concurrent
terms of seven years' imprisonment on each count. Clark
appeals, asserting three points of error: (1) that the trial
court plainly erred in denying his motion to declare the
unlawful possession of a firearm statute amended by House
Bill 2034 in 2008 unconstitutional; (2) that the trial court
erred by overruling his motion for judgment of acquittal
because the evidence was insufficient to prove either that he
knew about the drugs or that he exercised control over them;
and (3) that the trial court abused its discretion by
overruling his motion to compel the disclosure of the
confidential informant's identity. We affirm.
and Procedural Background
17, 2015, a detective with the drug task force received
information from a confidential informant that a weapon was
inside a Dodge Intrepid parked at a pawn shop. The detective,
who was in an unmarked vehicle and wearing street clothes,
went to the pawn shop and witnessed Clark get into the
passenger side backseat of the Intrepid. The Intrepid left
the pawn shop and the detective alerted officers of its
location so it could be stopped by a marked police cruiser.
marked police cruiser followed the Intrepid and it sped up.
The police officer activated the cruiser's lights and the
Intrepid turned into an alley. The cruiser followed and when
the officer entered the alley he saw the rear passenger door
was open and then witnessed it pulled closed near a telephone
pole about halfway down the alley. About 100 feet from where
the door closed the Intrepid stopped and the officer ordered
the three occupants out of the vehicle. Clark was the sole
occupant in the back of the vehicle.
the occupants were secured, the police searched the Intrepid.
A bag of methamphetamine was in plain view on the floorboard
below the passenger side backseat where Clark had been
sitting. Two bags of methamphetamine were also in the center
console of the Intrepid. The police also went to where the
rear passenger door had closed and found a backpack next to
the telephone pole. Inside the backpack was a firearm, cell
phone, and a pipe commonly used in smoking methamphetamine
with drug residue on it.
was interviewed by police. Clark denied that the firearm in
the backpack was his but admitted that his DNA would be on it
because he had possessed it previously. Clark admitted that
the cell phone in the backpack was his.
was charged with unlawful possession of a firearm and
possession of a controlled substance. Clark was tried by a
jury and found guilty of both charges. Clark moved for a
judgment of acquittal and for a new trial. Clark did not
raise his constitutional argument in his post-trial motions
which were both denied. This appeal follows.
appeal, Clark has moved to transfer to the Missouri Supreme
Court, arguing that because he challenges the
constitutionality of a statute, a matter reserved for the
exclusive jurisdiction of the Missouri Supreme Court, we
should transfer this case. We took Clark's motion to
transfer with the case and deny it for the reasons stated
direct appeal, we review for prejudice, not mere error, and
will reverse only if the error was so prejudicial that it
deprived the defendant of a fair trial. State v.
Marrow, 968 S.W.2d 100, 106 (Mo. banc 1998). We review
the facts in the light most favorable to the verdict.
Id. Issues not properly preserved for appeal may be
considered only if the court finds that manifest injustice or
a miscarriage of justice has resulted therefrom. Id.
Constitutionality of Section 571.070 Enacted by House
point I, Clark contends that the trial court plainly erred in
denying his motion to declare the version of §
571.070 amended by House Bill 2034
unconstitutional because it was enacted in violation of
Article III, Section 21 of the Missouri Constitution which
prohibits a bill from being amended in its passage from its
original purpose, and Article III, Section's 23
prohibition on a bill containing more than one subject. Clark
concedes this claim was not ...