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State v. Davis

Court of Appeals of Missouri, Southern District

November 20, 2017

STATE OF MISSOURI, Respondent,
v.
TERRY LEE DAVIS, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Robert N. Mayer, Presiding Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Following a jury trial, Terry Lee Davis ("Davis") was found guilty of distribution of a controlled substance, pursuant to section 195.211.[1] The trial court sentenced Davis to 10 years in the Department of Corrections, as a prior and persistent offender. On appeal, Davis argues in his sole point that the trial court abused its discretion in admitting State's Exhibit 2, a DVD containing audio and video of the drug transaction involving Davis, as it contained evidence of "uncharged bad acts." Finding no merit in Davis' point, we affirm his conviction.

         Facts and Procedural History

         Davis does not challenge the sufficiency of the evidence to support his convictions. We therefore limit our discussion of the facts to those necessary for resolution. We view the evidence in the light most favorable to the jury's finding of guilt. State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009).

         On the morning of November 10, 2015, Deputy Keith Haynes ("Deputy Haynes"), of the Stoddard County Sheriff's Office and the SEMO Drug Task Force, received a call from a confidential informant ("C.I."), who told Davis that her main supplier had a quarter gram of methamphetamine he could sell her for $25. Deputy Haynes instructed C.I. to set up the drug buy for that day.

         Deputy Haynes subsequently met with C.I., and searched her and the vehicle for narcotics that could be used to "set . . . Davis up." Deputy Haynes then provided C.I. with $25 and an audio/video recorder, disguised as a car key fob. He turned the recorder on, announced the date, time, and the suspect's name-Davis-for the recording, and handed it to C.I., who then got into her vehicle. Deputy Haynes followed in an unmarked car.

         C.I. met up with Davis, who got in her vehicle, and they drove off. Deputy Haynes followed, attempting to call C.I. several times because the plan for the controlled buy was not for Davis to get into C.I.'s vehicle. C.I. drove to the home of Davis' mother at his request, which C.I. agreed to do so as not to arouse suspicion.

         On the way, C.I. asked Davis if the methamphetamine she was buying was any good, to which Davis reassured her that it was very good. Davis indicated that the only complaints he had about the methamphetamine was that it was too weak, and that was only because a portion had been split among too many people-it had nothing to do with the quality of the methamphetamine. Further, Davis told C.I. that he was able to exchange methamphetamine for rent. Davis also told C.I. where he got the methamphetamine and how much it cost. Davis gave C.I. "a quarter of crystal meth and three needles" in exchange for $25 before getting out of the vehicle.

         After Davis exited her vehicle, C.I. met up with Deputy Haynes and turned over the packet of methamphetamine and needles, along with the recording device.

         The packet of suspected methamphetamine was submitted to the Missouri State Highway Patrol Crime Laboratory for analysis, where it was determined to be methamphetamine.

         Davis was charged by information with the class B felony of distribution of a controlled substance by knowingly distributing methamphetamine to C.I.

         In a "Fourth Motion in Limine, " Davis asked the trial court to prohibit the State from presenting evidence of or referring to the fact that "[Davis] had engaged in drug sales to people other than to [C.I., ]" because "[a]ny evidence of distribution of a controlled substance to anyone else is irrelevant and extremely prejudicial[, ]" in that "the sole reason [for offering such evidence] would be to show that [Davis] has a propensity to commit the crime for which he is charged."

         During a pretrial hearing on the fourth motion in limine, defense counsel specifically referred the trial court to the audio/video recording of the sale-during which Davis discussed distributing methamphetamine to his landlord-and argued that those portions of the recording should be excluded. Additionally, defense counsel later referred to a portion of the recording in which Davis told C.I. that another individual had complained about the quality of his product. The State responded by arguing that it was not propensity evidence, but rather was admissible under the "complete picture exception, " in that the evidence was Davis' own statements made during the drug sale to reassure his customer of the quality of his product in order to complete the transaction. After taking the motion under advisement and reviewing the recording, the trial court denied Davis' fourth motion in limine stating that the evidence was "properly related and logically relevant to the crime at issue[.]" The trial court later clarified that it also found the evidence "legally relevant in the matter."

         A jury trial was held on October 21, 2016. Davis did not testify or present any evidence. The recording of the drug buy was played for the jury during the State's opening statement. Commenting between portions of the recording, the prosecutor told the jury that after C.I. asked Davis if the "stuff" was good, Davis reassured C.I. of the quality of the methamphetamine he was selling her, and that Davis "brought up . . . someone else who had bought methamphetamine[, ]" at which point defense counsel objected stating, "I will object based on my Fourth Motion in Limine." Defense counsel further asked "that my objection be a continuing throughout the entire trial[, ]" so that she did not "have to keep jumping up and down interrupting [the prosecutor]." The trial court overruled the objection, and granted the request that the objection be continuing.

         The prosecutor then noted that, in the course of the drug transaction, Davis talked about how another person had complained about the quality of the methamphetamine Davis had sold him, but Davis reassured C.I. that the other buyer's complaint arose from the fact that Davis had split a quarter gram of methamphetamine between three people so it was an issue related to quantity rather than quality.

         The prosecutor also noted that Davis spoke about his living arrangements, the cost of his rent, and the fact that he was exchanging methamphetamine for rent. Specifically, Davis told C.I. that his rent was $125, but that his landlord had agreed to take one-and-one-quarter grams of methamphetamine in lieu of rent.

         At the end of the State's direct examination of Deputy Haynes, the prosecutor offered State's Exhibit 2, the audio/video recording of the controlled buy, to which defense counsel stated, "No objection." The trial court responded, "Hearing no objection, the Court shall receive State's Exhibit 2 into evidence."

         The jury found Davis guilty of distribution of a controlled substance and the trial court sentenced Davis, as a prior and ...


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