State v. Shigemura
552 S.W.3d 734 (2018)
Rule of Law:
To prove constructive possession of a controlled substance when there is shared access, the State must present additional incriminating circumstances demonstrating the defendant's knowledge and control over the substance; furthermore, a defendant waives plain error review of allegedly inadmissible testimony if counsel affirmatively elicited or expanded upon the testimony as a matter of trial strategy.
Facts:
- Officer Patricia Vineyard received a confidential-informant tip that Edward Shigemura was conducting drug activity out of his apartment, where he lived with his girlfriend, Jeri Leisure.
- Officer Vineyard and Officer Mark Meyers visited Shigemura's apartment, where both Shigemura and Leisure consented to a search.
- Officer Meyers found a Laclede Gas bill within the apartment that was addressed only to Shigemura.
- During the apartment search, Shigemura told Leisure to move a small hand-held portable radio from the living room to the garage.
- As Leisure was carrying the radio, its battery plate fell off and a bag of pills containing morphine, oxycodone, and amphetamine tumbled out.
- As officers led Shigemura out of the apartment, they noticed a package protruding from Shigemura's mailbox.
- Leisure unprompted retrieved the package from the mailbox and handed it to Officer Vineyard; the package was addressed to Shigemura, mailed from California, and displayed a tracking number and delivery date coinciding with that day.
- Officer Meyers asked Shigemura if he could open the package, and Shigemura consented, revealing two sealed movie containers inside, which held vacuum-sealed packages covered in cayenne pepper containing approximately 106 grams of methamphetamine and one gram of cocaine.
Procedural Posture:
- The State charged Edward Shigemura with one count of second-degree drug trafficking and four counts of possessing a controlled substance.
- A jury found Shigemura guilty on all five counts.
- Shigemura moved for judgment of acquittal, which the trial court denied.
- The trial court sentenced Shigemura to concurrent terms, totaling fifteen years in prison.
- Shigemura appealed the trial court's judgment to the Missouri Court of Appeals, Eastern District, challenging the sufficiency of the evidence for his drug convictions and alleging plain error regarding hearsay testimony.
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Issue:
1. Does sufficient evidence exist to prove Edward Shigemura's knowing and constructive possession of methamphetamine and cocaine found in a mailed package addressed to him, when the mailbox was publicly accessible and he shared residence with another? 2. Does sufficient evidence exist to prove Edward Shigemura's knowing and constructive possession of morphine, oxycodone, and amphetamine found in a radio he directed his girlfriend to move during a drug search? 3. Does a trial court plainly err by allowing police officers to testify about a confidential informant's tip when the defendant's counsel actively cross-examined the officers and expanded on the testimony as part of a trial strategy?
Opinions:
Majority - Kurt S. Odenwald, Judge
Yes, sufficient evidence existed to prove Edward Shigemura's knowing and constructive possession of the drugs. The court affirmed Shigemura's convictions, finding that the State presented sufficient evidence to support the jury's verdict for both the drug trafficking and drug possession charges, and concluding that Shigemura waived plain error review regarding the confidential informant's tip. Regarding the methamphetamine and cocaine found in the mailed package, the court determined there were sufficient incriminating circumstances to establish Shigemura's constructive possession. These included: Shigemura being the only permanent resident and utility account holder for the apartment, the package being addressed directly to him, the large quantity ($12,000 worth) of drugs, the contemporaneous discovery of other controlled substances (pills) within his apartment, and Shigemura's explicit consent to open the package, which reasonably infers his authority and control over its contents. The court emphasized that common sense suggests such a valuable quantity of drugs would not arrive "unbidden and unbeknownst" to an unsuspecting resident (citing State v. Zetina-Torres, State v. Clark, State v. Taylor). Concerning the pills discovered in the radio, the court found sufficient evidence to establish Shigemura's knowing and constructive possession. Shigemura specifically directed Leisure to move only the radio while officers were searching the apartment for drugs. The court inferred this action was an attempt to conceal the pills, constituting evidence of Shigemura's consciousness of guilt and allowing a reasonable jury to infer his knowledge and control over the radio and its illegal contents (citing State v. Power, State v. McKelvey, State v. Powell). Finally, addressing Shigemura's claim of plain error regarding the hearsay testimony about the confidential informant's tip, the court declined to apply plain error review. The court noted that while the State initially introduced limited testimony about the tip, Shigemura's counsel actively cross-examined officers, eliciting and expanding upon the details of the tip as part of a deliberate trial strategy to portray officers as predetermined to arrest Shigemura and shift blame to Leisure. The court held that a defendant waives plain error review if counsel affirmatively acted for a trial strategy reason or elicited the controversial evidence, thereby precluding a finding of plain error (citing State v. McElroy, State v. Johnson, State v. Clay).
Concurring - Robert G. Dowd, Jr., P.J.
Robert G. Dowd, Jr., P.J., concurred.
Concurring - Sherri B. Sullivan, J.
Sherri B. Sullivan, J., concurred.
Analysis:
This case reinforces the concept of constructive possession, particularly when contraband is found in a location with shared access or in a package. It clarifies that a combination of circumstantial factors, such as residence, addressee information, quantity of drugs, and conduct indicating consciousness of guilt, can collectively establish the requisite knowledge and control. Furthermore, the ruling on plain error review highlights the importance of timely objections at trial; a defendant's strategic decision to explore or expand on potentially objectionable testimony on cross-examination can waive appellate review, even for alleged plain errors. This limits a defendant's ability to complain on appeal about evidence they actively developed at trial.
