                     In the Missouri Court of Appeals
                             Eastern District
                                       DIVISON FOUR

STATE OF MISSOURI,                           )      No. ED99963
                                             )
       Respondent,                           )      Appeal from the Circuit Court
                                             )      of Monroe County
vs.                                          )
                                             )
AUSTIN D. RILEY,                             )      Honorable Rachel L. Bringer Shepherd
                                             )
       Appellant.                            )      Filed: June 24, 2014

                                          Introduction

       Austin Riley (Defendant) appeals from the judgment of conviction entered by the Circuit

Court of the County of Monroe after a jury found him guilty of possession of a controlled

substance. Defendant claims that the trial court erred in: (1) denying his motion for judgment of

acquittal; (2) excluding evidence of an excited utterance; and (3) failing to sua sponte declare a

mistrial or give a curative instruction during the prosecutor’s closing argument. We affirm.

                             Factual and Procedural Background

       Viewed in the light most favorable to the verdict, the evidence at trial revealed the

following: On March 1, 2012, Defendant and Joshua Painter drove to Columbia, Missouri,

where Mr. Painter purchased methamphetamine.           On the drive back to Monroe County,

Defendant and Mr. Painter used some of the purchased methamphetamine.

       At approximately 4:00 p.m. on March 2, 2012, Special Agents Jonathan Sutton and Rob

Warner of the Northeast Missouri Narcotics Task Force executed a search warrant on the
residence of Mr. Painter and his girlfriend, Jennifer Lehenbauer.        The officers entered the

residence into the living room, where Defendant was asleep on the couch and Mr. Painter was

sitting on a chair. On a coffee table located two to four feet from the couch, the officers

observed a clear plastic bag containing 0.19 grams of methamphetamine, a glass pipe, and a pen

tube with residue. Defendant admitted that he had used methamphetamine several times with

Mr. Painter and Ms. Lehenbauer at their residence and that he had used the seized

methamphetamine the previous day.

       The State charged Defendant with possession of a controlled substance. Prior to trial, the

State filed a motion in limine to exclude as hearsay Mr. Painter’s statement to Agent Warner

during the search that the methamphetamine belonged to him. Defendant opposed the motion,

asserting that statement was a relevant excited utterance.

       To support his assertion, Defendant made a pre-trial offer of proof through the testimony

of Agent Warner. Agent Warner’s testimony established the following: He knocked on the front

door of Mr. Painter and Ms. Lehenbauer’s residence and announced “police, search warrant.”

Ms. Lehenbauer opened the door. Agent Warner was one of the first of at least ten officers to

enter the residence. Agent Warner ordered Defendant, Mr. Painter, and Ms. Lehenbauer to the

ground and placed Mr. Painter in handcuffs. Other officers cleared the residence to ensure no

one else was present. When Agent Warner helped Mr. Painter off of the ground, Mr. Painter

made a statement to the effect of “it’s mine, it’s all mine, she had nothing to do with it.” Agent

Warner instructed Mr. Painter to be quiet because he had not yet provided him Miranda

warnings. Agent Warner estimated that thirty to sixty seconds elapsed between his entrance and

Mr. Painter’s statement. Following the offer, the trial court granted the State’s motion.




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       At trial, Mr. Painter testified on behalf of Defendant. Mr. Painter testified that on the day

of the search, Defendant was asleep on the couch while Mr. Painter smoked methamphetamine

and waited for Ms. Lehenbauer’s arrival. He testified that he purchased the methamphetamine in

Columbia, Defendant rode there with him, and they smoked some of the methamphetamine on

their drive home.

       Defense counsel asked Mr. Painter if he made a statement regarding the drugs to the

officers during the search, and the prosecutor objected on hearsay grounds. Defense counsel

responded that the statement was relevant, Mr. Painter was “the declarant of his own statement,”

and the statement was “essential to the defense’s theory.” The trial court sustained the State’s

objection.

       At the close of all evidence, Defendant moved for a judgment of acquittal, asserting that

the State failed to prove the elements of the crime alleged in the information. The trial court

denied Defendant’s motion. The jury found Defendant guilty and the trial court sentenced him to

two years’ imprisonment. Defendant appeals.

                                           Discussion

       In his first point, Defendant asserts that the trial court erred in denying his motion for

judgment of acquittal because the State failed to prove that he possessed methamphetamine.

Specifically, Defendant alleges that the State offered insufficient evidence to prove that he

exercised dominion or control over the methamphetamine in question. The State counters that

the trial court did not err because the State presented sufficient evidence of both actual and

constructive possession.

       When a criminal defendant challenges the sufficiency of the evidence, this court must

determine “whether there is sufficient evidence from which a reasonable juror might have found



                                                 3
the defendant guilty beyond a reasonable doubt.” State v. Primm, 347 S.W.3d 66, 72 (Mo. banc

2011). This court views the evidence “in the light most favorable to the verdict, considering all

favorable inferences and disregarding all contrary inferences.” Id.

       To convict a defendant of possession of a controlled substance under section 195.202.1,

the State must prove that the defendant: (1) had conscious and intentional possession, actual or

constructive, of the controlled substance; and (2) was aware of the presence and nature of the

substance. Mo. Rev. Stat. § 195.202.1; State v. Smith, 33 S.W.3d 648, 653 (Mo.App.W.D.

2000). Defendant does not challenge the sufficiency of the evidence to prove that he had

knowledge of the methamphetamine at issue. Rather, Defendant contends that the State failed to

present sufficient evidence that he had either actual or constructive possession.

       “A person has actual possession if he has the substance on his person or within easy reach

and convenient control.”      Mo. Rev. Stat. § 195.010(34).           Defendant did not have the

methamphetamine on his person when the officers executed the search. Thus, Defendant did not

have actual possession. See State v. Power, 281 S.W.3d 843, 848 (Mo.App.E.D. 2009).

       Constructive possession of a controlled substance exists when a person “although not in

actual possession, has the power and the intention at a given time to exercise dominion or control

over the substance either directly or through another person or persons.” Mo. Rev. Stat. §

195.010(34). To prove constructive possession, the State must show at a minimum the defendant

had access to and control over the premises where the substance was found. Power, 281 S.W.3d

at 848. “Where there is evidence of joint control over the premises where a controlled substance

is located, the State must present additional evidence that connects the defendant to the

controlled substance.” Id. Such evidence might include:

       [R]outine access to the area where the substances are kept, the presence of large
       quantities of the substance at the arrest scene, admissions by the accused, being in


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       close proximity to the substances or drug paraphernalia in plain view of the law
       enforcement officers, the mixing of defendant's personal belongings with the
       drugs, or flight by a defendant upon realizing the presence of law enforcement
       officials.

Id. We must consider the totality of the circumstances when determining whether sufficient

incriminating circumstances exist. Id.

       The record reveals sufficient evidence to support the jury’s finding that Defendant

possessed the methamphetamine, including the following:         When the officers entered the

residence, Defendant was on the couch that was two to four feet from the coffee table where the

methamphetamine was located in plain view.         Being in close proximity to drugs or drug

paraphernalia in plain view of the police constitutes additional evidence to connect a defendant

to the contraband. State v. Jackson, 576 S.W.2d 756, 757 (Mo.App.E.D. 1979). Additionally,

Defendant admitted that he had previously used methamphetamine with Mr. Painter and Ms.

Lehenbauer at their residence and had used methamphetamine from the bag the officers seized

during their search.

       Defendant asserts that evidence of prior drug use is insufficient to constitute additional

evidence of control. To support his assertion, Defendant cites State v. May, 71 S.W.3d 177

(Mo.App.W.D. 2002). May is inapposite. In May, the defendant admitted to his general prior

drug use and knowledge of drugs located in the apartment. Id. at 184. The court concluded that

the defendant’s awareness of the presence of drugs was insufficient to prove the defendant had

control of drugs found in the apartment. Id. at 185. Here, Defendant admitted not only to prior

drug use but also to use of the seized drugs. A defendant’s admission, along with other evidence

connecting the defendant to the controlled substance, is sufficient to prove constructive

possession. Power, 281 S.W.3d at 848. Accordingly, we conclude that the trial court did not err

in denying Defendant’s motion for judgment of acquittal because, under the totality of the


                                               5
circumstances, the record contained sufficient evidence from which the jury could find that

Defendant had control over the methamphetamine. 1 Point denied.

       In his second and third points, Defendant asserts that the trial court abused its discretion

in excluding evidence that, during the execution of the search warrant, Mr. Painter stated to

Agent Warner that the methamphetamine belonged to him. Specifically, Defendant asserts that

the statement was an excited utterance and that the trial court erred in excluding Mr. Painter’s

and Agent Warner’s testimony regarding the statement. Defendant contends that the exclusion

of this evidence prejudiced him because the evidence directly supported the defense theory that

Defendant did not possess the methamphetamine. The State counters that the trial court did not

err in excluding evidence of Mr. Painter’s statement because: (1) the statement was hearsay; and

(2) Defendant was not prejudiced. 2

       Trial courts have broad discretion to admit or exclude evidence at trial. State v. Sanchez,

186 S.W.3d 260, 264 (Mo. banc 2006). We review a trial court’s decision to exclude evidence

1
  To support his position that the State presented insufficient evidence of conscious and
intentional control, Defendant summarizes several cases in which Missouri courts have reversed
defendants’ convictions on the basis of insufficient evidence of control. State v. West, 21
S.W.3d 59, 63 (Mo.App.W.D. 2000), State v. Bowyer, 693 S.W.2d 845 (Mo.App.W.D. 1985),
State v. May, 71 S.W.3d 177 (Mo.App.W.D. 2002), State v. Smith, 33 S.W.2d 648
(Mo.App.W.D. 2000), State v. Morris, 41 S.W.3d 494 (Mo.App.E.D. 2000), State v. Hendrix,
81 S.W.3d 79 (Mo.App.W.D. 2002), State v. Cushshon, 218 S.W.3d 587 (Mo.App.E.D. 2007),
and State v. McClain, 968 S.W.2d 225 (Mo.App.S.D. 1998). These cases are factually
distinguishable, and we find Defendant’s reliance on them is unpersuasive. In none of the cases
was there evidence that the defendant: (1) was in close proximity to the contraband in plain view;
and (2) made an admission relating to control of the contraband.
2
  Arguably, Defendant’s claims are not properly preserved for review. A trial court’s ruling on a
motion in limine to exclude evidence at trial preserves nothing for appeal. State v. Chambers,
234 S.W.3d 501, 511 (Mo.App.E.D. 2007). To preserve the issue, the proponent of the evidence
“must attempt to present the excluded evidence at trial, and if an objection to the proposed
evidence is raised and sustained, the proponent must then make an offer of proof.” State v.
Marshall, 131 S.W.3d 375, 377 (Mo.App.E.D. 2004). “An offer of proof made before trial at a
hearing on a motion in limine will not suffice.” Id. Defendant did not attempt to present the
excluded evidence through Agent Warner and he did not make an offer of proof when the trial
court sustained the State’s objection to the proposed testimony of Mr. Painter.
                                                6
for prejudice, not just error, and will reverse only if the error was so prejudicial that it deprived

the defendant of a fair trial. State v. Speaks, 298 S.W.3d 70, 80-81 (Mo.App.E.D. 2009).

       The excited utterance exception to the general rule against hearsay applies when: “(1) a

startling event or condition occurs; (2) the statement is made while the declarant is still under the

stress of the excitement caused by the event and has not had the opportunity to fabricate the

story; and (3) the statement relates to the startling event.” State v. Hedges, 193 S.W.3d 784, 788

(Mo.App.E.D. 2006). Alleged excited utterances are presumably inadmissible hearsay and the

party offering the statement as an excited utterance “bears the burden of making a sufficient

showing of spontaneity to render the statement admissible.” State v. Kemp, 919 S.W.2d 278,

280 (Mo.App.W.D. 1996).

       Defendant’s argument is premised on the assumption that the execution of the search

warrant constitutes a startling event such that Mr. Painter’s statement was “provoked by the

excitement of the event.” The essential test for admissibility of an excited utterance is whether it

was made under such circumstances as to indicate it is trustworthy. State v. Kemp, 212 S.W.3d

135, 146 (Mo. banc 2007). The statement must be made under the immediate and uncontrolled

domination of the senses as a result of the shock produced by the event. Id.

       The record supports the trial court’s decision to exclude evidence of Mr. Painter’s

statement to Agent Warner as hearsay. Our review of the record reveals that Agent Warner

knocked and announced, “police, search warrant” and that Ms. Lehenbauer opened the front door

to allow the officers’ entry. Mr. Painter was awake and sitting on a chair when the officers

entered. Not until after the officers cleared the residence and Agent Warner assisted Mr. Painter

from the ground did Mr. Painter state that the methamphetamine belonged to him and “she had

nothing to do with it.” Defendant failed to demonstrate a startling event such that Mr. Painter’s



                                                 7
statement was a “spontaneous utterance of thought created by or springing out of the occurrence

itself[.]” Kemp, 919 S.W.2d at 281. Based on the above, we conclude that the trial court did not

abuse its discretion in excluding Mr. Painter’s statement because Defendant did not meet his

burden of demonstrating that the statement was an excited utterance.

       Defendant asserts that he was prejudiced by the trial court’s exclusion of Mr. Painter’s

statement to Agent Warner because it directly supported the defense theory that Defendant did

not possess the methamphetamine. Because Defendant failed to prove that the trial court abused

its discretion in excluding the testimony as hearsay, we need not consider Defendant’s prejudice

claim. Points two and three are denied.

       In his fourth point, Defendant asserts that the trial court plainly erred in failing to sua

sponte declare a mistrial or give a curative instruction in response to the prosecutor’s statements

during closing argument. Defendant contends that the prosecutor’s statements violated his rights

to be tried only for the offense charged and to a unanimous jury verdict as to the criminal

conduct.   Defendant alleges that the prosecutor’s statements resulted in manifest injustice

because the statements allowed the jury to convict Defendant for uncharged conduct and without

unanimously agreeing as to what methamphetamine he possessed.

       Defendant concedes that he did not properly preserve this issue but requests we review

for plain error. “Under plain error review, a conviction will be reversed for improper closing

argument only when it is established that the argument had a decisive effect on the outcome of

the trial and amounts to manifest injustice.”         State v. Barker, 410 S.W.3d 225, 234

(Mo.App.W.D. 2013) (quotation omitted).        “An argument has a decisive effect when it is

reasonably probable that, absent the argument, the verdict would have been different.” Id.




                                                8
(quotation omitted). “Statements made in closing argument rarely constitute plain error.” Id.

(quotation omitted).

       The record reveals that during closing argument, the prosecutor argued that Defendant

was responsible for the methamphetamine being brought into Monroe County and “for

possession of methamphetamine in Monroe County on those days.”                During rebuttal, the

prosecutor stated to the jury:

       If you don’t possess methamphetamine when you smoke it, when do you? When
       do you posses [sic] methamphetamine if you don’t possess it when you smoke it?
       He didn’t wake up when the cops came out – in the door because he was high out
       of his gourd. He was so high he was passed out. He got himself high. That’s no
       defense. That doesn’t make him innocent. He used drugs. You set them on your
       bedside table. You go to asleep [sic]. You’re not innocent. You still possess
       them. You know they’re there. He knew what he was doing. He acted with
       [Mr.] Painter. He acted with [Ms.] Lehenbauer, and he acted with the purpose to
       possess methamphetamine because he wanted to get high.
               … And not only that, he used methamphetamine out of the very bag that’s
       sitting in front of you. If that doesn’t mean you possess it, I don’t know what
       does. You can’t possess it any more than that.

       Defendant asserts that the prosecutor’s statements violated his right to be tried only for

the offense charged and to a unanimous jury verdict regarding the criminal conduct because they

allowed the jury to find Defendant guilty “based upon his use of methamphetamine during the

car ride home from another county.”        However, any prejudicial effect of the prosecutor’s

comments during closing argument must be viewed in context and in light of the trial court’s

instructions to the jury. State v. Edwards, 116 S.W.3d 511, 536 (Mo. banc 2003). The trial court

instructed the jury that to find Defendant guilty it had to find that “in the County of Monroe, …

the defendant possessed methamphetamine… .” Jurors are presumed to follow the instructions

of the trial court. State v. Cornelious, 258 S.W.3d 461, 468 (Mo.App.W.D. 2008).             In the

context of the trial court’s verdict-directing instruction, the prosecutor’s comments did not result

in manifest injustice. Accordingly, we conclude that the trial court did not plainly err in failing


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to sua sponte declare a mistrial or give a curative instruction as a result of the prosecutor’s

statements during closing argument. See e.g. Barker, 410 S.W.3d at 235. Point denied.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                                      Patricia L. Cohen, Judge

Lisa S. Van Amburg, P.J., and
Philip M. Hess, J., concur.




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