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Greene v. State

Court of Appeals of Missouri, Eastern District, Second Division

December 19, 2017

CLETUS GREENE, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Cape Girardeau County 16CG-CC00055 Honorable Michael E. Gardner

          Lisa P Page, Presiding Judge

          Cletus Greene ("Movant") appeals from the denial, without an evidentiary hearing, of his Rule 29.15 post-conviction relief motion. Movant contends his counsel was ineffective in: (I) failing to file and argue a pre-trial motion to suppress evidence, and (II) failing to raise on direct appeal a variance between Movant's charging document and the jury instructions. We affirm.

         BACKGROUND

         In May 2014, officers working with the drug task force in Jackson, Missouri responded to an anonymous tip reporting drug activity at the Townhouse Inn. Detective Bobby Sullivan and Officer Chris Newton approached the second-floor balcony where Movant was standing with Matthew Robinson. Movant was smoking a cigarette. Officer Newton spoke with Movant, who initially gave him a false name. Since Detective Sullivan personally knew Movant, he addressed him by his real name and asked if he "had anything on him." Movant responded, "Yes, I've got marijuana." The officers handcuffed Movant and searched him. They found marijuana and a pack of cigarettes in his pocket. These items were placed in Movant's hat, transported to an adjacent room, and secured by members of the task force.

         Officer Mike Alford arrived on the scene some time later. He entered the adjacent room and examined the items seized from Movant, Robinson, and others. Officer Alford opened the pack of cigarettes from Movant's pocket and discovered something "secured or taped to the top of the flip top on the inside." He removed the object and examined it. It was a small, plastic baggie containing an off-white substance. Officer Alford performed a field test, which indicated the substance was methamphetamine. This was later confirmed by a laboratory test.

         The State charged Movant, by way of information, with one count of the class C felony of possession of a controlled substance, in violation of Section 195.202 RSMo Cum. Sup. 2014, alleging that "on or about May 13, 2014 . . . [Movant] possessed amphetamine, a controlled substance, knowing of its presence and nature" (emphasis added). The information was amended twice thereafter, each time listing amphetamine as the controlled substance.

         However, at trial, the State's case in chief for the charge was for possession of methamphetamine. The State presented testimony from Detective Sullivan, Officer Alford, and Officer Newton, each of whom testified to the presence of a methamphetamine pill in the cigarette pack found in Movant's pocket. The results of the field and laboratory tests, each of which confirmed the presence of methamphetamine and the methamphetamine pill itself were introduced into evidence. Movant did not object at any time during trial to the State's introduction of evidence of methamphetamine rather than amphetamine.

         Jury Instruction 5 stated, in relevant part:

If you find and believe from the evidence beyond a reasonable doubt: First, that on or about May 13, 2014 . . . [Movant] possessed methamphetamine, a controlled substance . . . then you will find [Movant] guilty under Count I.

         Movant did not object to the submission of Jury Instruction 5, which also included reference to methamphetamine rather than amphetamine. The jury found Movant guilty, and the court sentenced him to a total of ten years imprisonment. Movant's convictions were affirmed on direct appeal. See State v. Greene, 476 S.W.3d 309 (Mo. App. E.D. 2015). Movant filed a motion for post-conviction relief, which was denied without evidentiary hearing. The present appeal followed.

         DISCUSSION

         Standard of Review

         Appellate review of a Rule 29.15 proceeding is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k). The findings and conclusions of the motion court are clearly erroneous if after review of the entire record, we are left with the definite and firm impression that a mistake has been made. Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014). ...


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