                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION FOUR

STATE OF MISSOURI,                           )       No. ED102656
                                             )
       Plaintiff/Respondent,                 )       Appeal from the Circuit Court of
                                             )       the City of St. Louis
       vs.                                   )
                                             )       Honorable Calea Stovall-Reid
CARTELL HOGUE,                               )
                                             )
       Defendant/Appellant.                  )       Filed: June 14, 2016

                                           Introduction

       Cartell Hogue (Appellant) appeals from the trial court’s judgment after a bench trial

finding him guilty of the Class A misdemeanor of possession of marijuana and sentencing him to

one year of confinement. We affirm.

                               Factual and Procedural Background

       On June 23, 2014, Appellant was charged by information with first-degree trespass and

possession of up to 35 grams of marijuana. On December 4, 2014, Appellant filed a boilerplate

motion to suppress. On December 11, 2014, the State filed a motion to nolle prosse the trespass

charge. On January 14, 2015, Appellant waived his right to a jury trial and the case proceeded to

a bench trial, with the motion to suppress being heard simultaneously. On the morning of trial,

Appellant filed a memorandum in support of his motion to suppress. The one-day trial and

motion hearing consisted of the testimony of one witness, the arresting officer, Officer Joseph

Marcantano (Officer Marcantano), and the parties’ argument.

                                                  
 
       At trial, Officer Marcantano testified he was assigned to patrol the St. Louis Housing

Authority (SLHA) public housing units in the City of St. Louis, including the Cambridge Heights

housing complex and the Columbus Square neighborhood. On the evening of June 23, 2014, he

was patrolling when he observed Appellant sitting on the porch of the housing unit at 1316 North

8th Street. Officer Marcantano testified he recognized Appellant as a non-resident with whom

he had spoken on several occasions about trespassing at that location. Officer Marcantano

testified Appellant had previously been a problem in the housing complex for other residents.

Since Appellant was trespassing after repeated warnings, Officer Marcantano arrested him,

patted him down and put him in the back seat of his patrol car. After Officer Marcantano put

Appellant in the patrol car, Appellant’s grandmother came outside 1316 North 8th Street and

spoke with Officer Marcantano. Officer Marcantano testified the grandmother told him she

thought Appellant was coming over. Appellant was then transported to the police station. At the

police station, Appellant was asked if he had anything dangerous or illegal on his person that was

not found during the initial pat-down search. Appellant said he had marijuana in his pants.

Appellant retrieved the marijuana from his pants, which Officer Marcantano seized, put in an

evidence envelope, and sent to the crime lab. Lab analysis confirmed the substance taken from

Appellant’s pants was marijuana. The lab report and the marijuana were admitted into evidence

at trial as Exhibits A and C.

       After testimony and argument, the trial court denied Appellant’s motion to suppress and

found him guilty of possession of less than 35 grams of marijuana. On February 17, 2015, the

trial court sentenced Appellant to one year in prison. This appeal follows. Additional facts

necessary to determination of this appeal will be adduced as necessary.




                                                2
 
                                                                Points on Appeal

              In his first point, Appellant claims the trial court erred in denying his motion to suppress

because the State failed to carry its burden of showing the marijuana was lawfully seized in that

Officer Marcantano’s arrest of Appellant for trespass was unlawful.

              In his second point, Appellant asserts the trial court erred in overruling his objections to

Officer Marcantano’s testimony that Appellant’s grandmother told him she was afraid of

Appellant and he was trying to resurrect a gang called the Cochran Crips; and Officer

Marcantano’s opinion that Appellant’s grandmother should be in assisted living and any arrests

on her property could cause her lease to be violated and jeopardize her ability to get into assisted

living. Appellant maintains this testimony was hearsay, speculative, and irrelevant to the issue

of Appellant’s trespass and highly prejudicial because it allowed the fact-finder to speculate

Appellant’s grandmother did not want him on her property.

                                                               Standard of Review

              The trial court has broad discretion to admit or exclude evidence at trial and this Court

will reverse only upon a showing of a clear abuse of discretion. State v. Chaney, 967 S.W.2d 47,

55 (Mo.banc 1998). Where a motion to suppress is overruled and the evidence introduced at

trial, an appellate court will consider the evidence presented both at the suppression hearing and

at trial in determining whether the motion should have been granted. State v. Goff, 129 S.W.3d

857, 861-62 (Mo.banc 2004). The burden of going forward with the evidence and the risk of

nonpersuasion shall be upon the State to show by a preponderance of the evidence that the

motion to suppress should be overruled. Section 542.296.6.1 We view the facts and any

reasonable inferences arising therefrom in the light most favorable to the ruling of the trial court,


                                                            
1
    All statutory references are to RSMo 2012.

                                                                       3
 
and we give deference to the trial court’s factual findings and credibility determinations. State v.

Rousan, 961 S.W.2d 831, 845 (Mo.banc 1998). We review the trial court’s ruling on a motion to

suppress evidence for the existence of substantial evidence, and we will reverse the ruling only if

it is clearly erroneous. Id.

                                            Discussion

                                              Point I

        Appellant claims the search of his person incident to his arrest for trespass was

undertaken without warrant and without probable cause to believe Appellant had committed

trespass, such that the marijuana seized from Appellant incident to arrest was fruit of the

poisonous tree.

        The Information issued by the State on June 24, 2014, alleged as follows:

        In Count I, the State alleged Appellant committed the class B misdemeanor of trespass in

the first degree, in violation of Section 569.140, in that on or about June 23, 2014, Appellant

knowingly entered unlawfully upon real property located at 1316 North 8th Street and owned by

the SLHA, notice against trespass upon said real estate having been given by actual

communication to Appellant. In Count II, the State alleged Appellant committed the class A

misdemeanor of possession of a controlled substance, in violation of Section 195.202, in that on

or about June 23, 2014, Appellant possessed marijuana knowing of its presence and nature.

        The Information was based upon Officer Marcantano’s Probable Cause Statement, made

June 24, 2014, in which Officer Marcantano swore under oath he had probable cause to believe

Appellant committed first-degree trespass and possession of less than 35 grams of marijuana on

June 23, 2014 and:




                                                 4
 
               2. The facts supporting this belief are as follows:

               While on patrol in the Cambridge Heights Housing Complex, I observed
       [Appellant] to be on the porch of 1316 North 8th Street. I have previously issued
       [Appellant] trespass warnings, and told [Appellant] that he is not allowed
       back at that location without the leaseholder present. After [Appellant] was
       arrested for trespassing, I observed him to be in possession of what lab analysis
       later revealed to be marijuana.

               3. I believe Appellant poses a danger to a crime victim, the community, or
       any other person because of the nature of this case and because Appellant has
       prior felony convictions for resisting arrest and two counts of unlawful use of a
       weapon from 2002 and an assault 1st, two counts of unlawful use of a weapon,
       and armed criminal action from 2004.

Section 569.140 defines trespass in the first degree as follows:

              1. A person commits the crime of trespass in the first degree if he
       knowingly enters unlawfully or knowingly remains unlawfully in a building or
       inhabitable structure or upon real property.

              2. A person does not commit the crime of trespass in the first degree by
       entering or remaining upon real property unless the real property is fenced or
       otherwise enclosed in a manner designed to exclude intruders or as to which
       notice against trespass is given by:

              (1) Actual communication to the actor; or
              (2) Posting in a manner reasonably likely to come to the attention of
       intruders.

(Emphasis added.) Section 569.140.

       At trial, Officer Marcantano testified he had warned Appellant several times about

trespassing at 1316 North 8th Street:

       Q. When did you first see [Appellant]?

       A. I saw him sitting on the back porch of the -- of his grandmother’s residence.

       Q. Did you recognize him?

       A. I did.

       Q. In the past, what did you speak with him about?



                                                 5
 
       A. I had spoken to him on several occasions about several topics, including the
       trespassing policies.

       Q. Do you regularly enforce the trespass policy?

       A. I did.

       Q. Can you tell us what your understanding of the trespass policy is?

       A. Subjects who are not residents of the Housing Authority properties may come to visit
       family, friends, whoever it is that they want to visit. When they enter the property, they
       must head directly to that person’s residence and then be with that person that they are
       visiting. If they are inside, they obviously don’t have to be right with them, but if they
       step outside of the residences, they need to be with a leaseholder, the person that they are
       visiting. They can’t hang out outside on fronts or backs or in common areas without the
       leaseholder present. When they go to leave, they must take the most direct route from the
       person that they are visiting to wherever their destination is.

       Q. Okay. At this time, did [Appellant] appear to be hanging out on the back porch?

       A. He did.

       Q. Had you ever seen [Appellant] violating the trespass policy before?

       A. I did.

       Q. Do you know if [Appellant] was ever informed of the trespass policy?

       A. He was.

       …

       Q. On the night of June 23rd, did you believe that [Appellant] was violating the trespass
       policy?

       A. Yes.

       “Probable cause exists where the facts and circumstances within the police officers’

knowledge, and of which they have reliable and trustworthy information, would warrant a person

of reasonable caution to believe that the person being arrested had committed the offense.” State

v. Johnson, 354 S.W.3d 627, 634 n. 6 (Mo.banc 2011). The test is not whether the officer is

right or wrong in his belief, but whether his belief was reasonable under the facts and

                                                 6
 
circumstances. State v. Patterson, 624 S.W.2d 11, 14 (Mo. 1981). Here, Officer Marcantano had

personal knowledge he had warned Appellant several times he was trespassing at 1316 North 8th

Street when he loitered there alone in the common area without the leaseholder present. When

Officer Marcantano saw Appellant on the date in question loitering alone at 1316 North 8th Street

after being told several times he could not do that pursuant to the SLHA’s Trespassing Policy,

Officer Marcantano had a reasonable belief Appellant was trespassing in violation of Section

569.140.1(1) based on his own previous warnings to Appellant.

       Further, Officer Marcantano’s understanding of the parameters of the SLHA Trespassing

Policy, as illustrated by his testimony at trial, was reasonable. The SLHA Trespassing Policy

itself provides “Any person not authorized to be on a SLHA development will be deemed to be

trespassing, and may be subject to arrest and prosecution for criminal trespass in violation of

state and local law.” The SLHA Trespassing Policy deems an unauthorized person as one who is

“Being on SLHA development at a location or unit not specified on the guest pass or visitor log,

unless the person is traveling on the most direct route to or from such location, or accompanied

personally by the person being visited.” The SLHA Trespassing Policy also provides, in addition

to being subject to state and local trespassing law, such behavior also exposes the individual to

the possibility of being issued a SLHA Temporary or Extended Bar and Ban Notice.

       We give deference to the trial court’s attribution of credibility to Officer Marcantano’s

testimony he had warned Appellant several times he was trespassing at 1316 North 8th Street

when he idled alone in the common area, in violation of the SLHA’s Trespassing Policy.

Deference is given to the trial court’s superior opportunity to determine the credibility of

witnesses. Rousan, 961 S.W.2d at 845.




                                                 7
 
       While we give deference to the trial court’s factual findings and credibility

determinations, we review questions of law de novo. Id. The statute defining first-degree

trespass provides a basis for the crime of trespass when notice is given to the offender by actual

communication. Section 569.140.1(1). In this case, the statement of probable cause, the

information, and the credible testimony of Officer Marcantano at trial all track this statutory

definition of trespass. Appellant has failed to demonstrate otherwise. We find the State

established Officer Marcantano had probable cause to arrest Appellant on June 23, 2014, for

first-degree trespassing when he saw Appellant again at the property at 1316 North 8th Street

after giving him notice by actual communication on more than one occasion that his presence on

the property without the presence of his grandmother, the leaseholder, constituted trespass.

Consequently, Officer Marcantano’s search of Appellant and seizure of the marijuana he had on

his person was lawful. The trial court’s decision to deny Appellant’s motion to suppress was

supported by substantial evidence. Rousan, 961 S.W.2d at 845.

       Appellant also argues, in the alternative, the State failed to prove 1316 North 8th Street,

the address Appellant was arrested for trespassing, was owned by the SLHA and subject to the

SLHA Trespassing Policy.

       Officer Marcantano testified as follows:

       Q. And, Officer [Marcantano], how many years have you been with the St. Louis
       Metropolitan Police Department?

       A. About six years.

       Q. And how many of those years have you worked in housing?

       A. I was in the housing unit for about two and a half years.

       Q. Were you on duty on June 23, 2014?

       A. I was.

                                                  8
 
       Q. Did you have occasion to be at 1316 North 8th Street?

       A. I did.

       Q. Is that in the City of St. Louis?

       A. It is.

       Q. Did you make an arrest that night?

       A. I did.

       Appellant did not object at any time to this testimony or question Officer Marcantano as

to whether he could prove 1316 North 8th Street was part of the housing complex owned by the

SLHA and subject to its trespassing policy. Further, the State did not have to prove the

ownership of 1316 North 8th Street beyond a reasonable doubt as an element of trespass.

Compare State v. Caldwell, 352 S.W.3d 378, 382 (Mo.App. W.D. 2011) (not sufficient evidence

to support defendant’s conviction for trespassing after jury trial because State failed to adduce

evidence establishing ownership of property). Rather, the State merely had to establish

Appellant had been warned not to linger on the common areas at 1316 North 8th Street, because

he was not a resident there and his presence there not in the presence of the leaseholder

constituted trespassing.

       For these reasons, Point I is denied.

                                          Point II

       In his second point, Appellant complains the trial court should have excluded Officer

Marcantano’s testimony about Appellant’s grandmother’s infirmities, living situation, fear of

Appellant, and worries of his gang activity, because it was hearsay and irrelevant to whether he

was trespassing.




                                                 9
 
       Whether Appellant’s grandmother wanted Appellant on her property or not had no

bearing on Officer Marcantano’s prior warnings to him that idling alone in the common areas of

the housing complex constituted trespassing, which Appellant disregarded, leading to his arrest.

Probable cause to arrest for trespassing in this case was established by Officer Marcantano’s

specific prior warnings to Appellant and Appellant’s disregard and behavior in direct

contravention to those warnings.

       Further, Appellant waived his right to a jury trial and instead chose to have a bench trial.

It is presumed in a bench trial that the trial judge was not confused or misled by any allegedly

irrelevant or inadmissible evidence unless the record clearly demonstrates that the trial court

considered and relied upon the inadmissible evidence. State v. Girardier, 2015 WL 8230969 *7

(Mo.App. E.D. December 8, 2015); State v. Elliott, 271 S.W.3d 604, 607 (Mo.App. S.D. 2007).

The record does not clearly demonstrate the trial court considered and relied upon any

inadmissible evidence in this case. Point II is denied.

                                            Conclusion

       The judgment of the trial court is affirmed.




                                                      SHERRI B. SULLIVAN, P.J.


Kurt S. Odenwald, J., and
Lisa P. Page, J., concur.
 

 

 




                                                10
 
