Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Cape Girardeau County 16CG-CC00055
Honorable Michael E. Gardner
Page, Presiding Judge
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.
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.
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
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.
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.
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.
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
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