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Date: 10-16-2020
Case Style:
State of Missouri vs. Brenda Thurmond
Case Number: ED108253
Judge: Kurt S. Odenwald
Court: In the Missouri Court of Appeals
Eastern District
Plaintiff's Attorney: Kristen S. Johnson
Defendant's Attorney:
OR
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Description:
Potosi, MO - Criminal defense lawyer represented defendant Brenda Thurmond charged with possession of a controlled substance.
Viewing the evidence in the light most favorable to the jury’s verdict, State v. Gilmore,
537 S.W.3d 342, 344 (Mo. banc 2018), on December 18, 2015, police officers arrived at
Thurmond’s residence with an arrest warrant for a third party. Thurmond allowed the police
officers into her home to search for the wanted individual, whom the police officers failed to
locate. However, during the search, the police officers came to believe there were narcotics or
narcotic paraphernalia in the residence. Thurmond consented in allowing the police officers to
search the residence for narcotics.
During their search of the apartment, police officers found three glass smoking pipes with
residue, two digital scales, and a container with multiple plastic bags. The container found was
of the type often used to store narcotics. One of the pipes was found in plain view on the kitchen
table. The kitchen was a small room just inside the front door of the residence. A purse was on
the kitchen table and Thurmond told the police officers the purse belonged to her. Thurmond
consented to the police officers’ search of her purse. The police officers found two plastic bags
containing methamphetamine in Thurmond’s purse. Thurmond was in the kitchen at the time the
officers searched her purse.
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Thurmond’s son lived at the residence with Thurmond. The record contains no evidence
that anyone other than Thurmond and her son lived at or had been staying at the residence, or
that anyone other than Thurmond was present at the residence during the search.
In September 2018, the State charged Thurmond with one count of possession of a
controlled substance for knowingly possessing methamphetamine with knowledge of its presence
and nature.
The case proceeded to trial. During voir dire, the State discussed the beyond-areasonable-doubt standard:
Now, as the -- as the Court explained earlier, briefly, and you’ll get a jury
instruction on this, but the State’s burden of proof in this case is proof beyond a
reasonable doubt. But that does not mean proof beyond all doubt. Now, is there
anybody here who believes that burden of proof is not strong enough? In other
words, is there somebody here who believes I should have to prove it beyond a
shadow of a doubt or 200 percent or any other thing you’ve got in your mind other
than what the judge said?
No venire-person responded. The State continued, also eliciting no response:
Is there anybody here who believes that proof beyond a reasonable doubt is not a
strong enough standard to hold the State to? If so, please raise your hand . . . .
All right. On the other side, is there anybody here who believes that’s too high?
That, you know, we ought to be able to convict somebody of a crime on a lower
standard than that? If so, please raise your hand.
The State elaborated further:
Now, you have to remember that these are common sense English instructions.
This isn’t magic. It’s not legal mumbo-jumbo. Okay. You’re going to be given
instructions that tell you what to do. And these are all things you can do in your
regular life.
You can evaluate the credibility of a witness. You’re doing it a hundred times a
day, every time you interact with somebody. Okay.
You’re asked to find whether or not you’re firmly convinced of something, whether
or not you believe it beyond a reasonable doubt. Again, you do that kind of thing
all the time. It’s not a magic thing you only do in court. It is something that you
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are being called on your common sense to determine whether you are firmly
convinced, okay.
That’s all you’re being asked to do with following that jury instruction. It’s -- it’s
-- it’s not as difficult as any lawyer can make it sound with all the embellishment.
Thurmond did not object and the State moved off of the subject.
Following trial, the jury found Thurmond guilty of possession of a controlled substance.
The sentencing assessment report (“SAR”) recommended Thurmond receive probation.
At sentencing, the State recommended a seven-year sentence and, contrary to the SAR, argued
against probation:
And I think from the State’s point of view, probably the most telling thing about all
this, because the SAR, I do want to address it, they came back and they said, well
we think you should put her on probation and put her in the drug court in Crawford
County.
And the most telling thing to me is that after we had this trial, you may remember
this, Judge, or you asked about bond. And we basically agreed that we were going
to raise her bond because of the guilty verdict.
. . . .
And she decided just to pay the extra money rather than to let anyone supervise her
activities.
And that to me is very telling, because I think she very clearly did not want anyone
monitoring her, making her do drug tests, anything like that. She doesn’t want to
change her life. She has no interest in that.
And I, for my part, over a year before the trial, had recommended drug court if she
had wanted it and had wanted to get help. But you cannot force somebody to get
help.
And the reality is she goes and she has a trial. That’s her right to do. But, you
know, don’t come to me now and say, well, I should get a chance to try to get clean
on probation or go to drug court or whatever, when you didn’t want help.
It was like pulling teeth, even in that SAR it sounds like to get her to open up about
any kind of drug problem that she ever had, even unrelated to the charges that were
pending before us.
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Following this argument, the trial court noted that Thurmond had three other pending cases and
asked the State how it believed those pending cases should affect the court’s decision regarding
Thurmond’s eligibility for probation. The State responded that in light of the other cases, even if
the sentencing court was to follow the SAR, “I don’t think in the long run it’s probably doing
[Thurmond] very much of a favor[.]” Thurmond proceeded to argue in favor of probation. The
trial court concluded:
Ms. Thurmond, I am sorry. I do not think you are a good candidate for probation.
And a lot of this is because I don’t know what’s going on with you right now, but
you’ve got way too much stuff going on all over the place. So I don’t know what’s
going on. But I -- but I think that you are not a good candidate for probation. I’m
sorry. I’m following the State’s recommendation on this today.
The trial court sentenced Thurmond to seven years in prison without probation. This appeal
follows.
Points on Appeal
In Point One, Thurmond asserts the trial court plainly erred in failing to sua sponte
correct the State’s minimization of the beyond-a-reasonable-doubt standard during voir dire. In
Point Two, Thurmond argues the trial court erred in denying her motion for a judgment of
acquittal because there was insufficient evidence to show that Thurmond was aware of the
presence and nature of the methamphetamine found in her purse. In Point Three, Thurmond
claims the trial court plainly erred in allowing the State to argue that Thurmond’s exercise of her
right to trial made her an unsuitable candidate for probation and in considering that argument in
its decision to impose a seven-year sentence and deny Thurmond probation.
Discussion
I. Point One—The State’s Discussion of the Burden of Proof
Thurmond first challenges the State’s commentary during voir dire regarding its burden
of proof. Thurmond maintains that the trial court committed reversible plain error by failing to
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sua sponte interrupt the State when the State seemingly minimized its burden of proving
Thurmond’s guilt beyond a reasonable doubt.
A. Standard of Review
Thurmond did not object to the State’s comments about the standard for its burden of
proof during voir dire. Because Thurmond raised no objection, Point One is not preserved, and
we may only review it for plain error. See Rule 30.20;
1 State v. Muhammad, 478 S.W.3d 468,
474 (Mo. App. W.D. 2015) (citing State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011))
(additional citation omitted). We will only reverse if the trial court committed “evident, obvious,
and clear error” that resulted in “manifest injustice or a miscarriage of justice[.]” State v.
Campbell, 600 S.W.3d 780, 788–89 (Mo. App. W.D. 2020) (internal quotation omitted); See
Rule 30.20. Thurmond must prove that the State’s alleged misstatements of the beyond-areasonable-doubt standard “had a decisive impact on the outcome of the trial.” State v. Dorsey,
318 S.W.3d 648, 655 (Mo. banc 2010) (internal citation omitted).
B. Analysis
“Arguments by prosecutors attempting to define reasonable doubt represent reversible
error.” State v. Rhodes, 988 S.W.2d 521, 527 (Mo. banc 1999) (internal citation omitted).
“However, brief remarks purporting to define ‘reasonable doubt,’ although improper, do not
result in reversible error so long as counsel does not unduly dwell upon the definition.” Id.
(internal quotation omitted). Furthermore, the mere discussion of the beyond-a-reasonable-doubt
standard as opposed to attempting to define the standard is not improper. Campbell, 600 S.W.3d
at 795–96 (citing State v. Overkamp, 646 S.W.2d 733, 738 (Mo. banc 1983)) (additional
citations omitted). Finally, we note that “[g]enerally, when the jury is provided with the correct
1 All Rule references are to Mo. R. Crim. P. (2020).
7
trial court instructions giving the definition of reasonable doubt it cures any harm from an
erroneous statement of reasonable doubt by the prosecutor.” State v. Green, 307 S.W.3d 197,
202–03 (Mo. App. S.D. 2010) (internal citations omitted) (reviewing precedent set by the
Supreme Court of Missouri).
The State initially questioned the venire-persons about whether they believed the beyonda-reasonable-doubt standard was either not a sufficiently burdensome standard of proof or too
burdensome of a standard. We find this line of questioning to be more akin to a discussion of the
burden of proof, rather than a definition. See Campbell, 600 S.W.3d at 795–96 (internal citations
omitted). Accordingly, the comments in question were appropriate and potentially helpful in
identifying venire-persons who were willing and able to conform their decision-making to the
proper burden of proof as instructed by the trial court. See id.
Next, the State’s comments that venire-persons would be able to use their common sense
in determining whether the beyond-a-reasonable-doubt standard was satisfied was neither
incorrect nor erroneous. See Muhammad, 478 S.W.3d at 478 (citing State v. Williams, 659
S.W.2d 778, 781 (Mo. banc 1983)) (distinguishing appropriate statements regarding the jurors’
use of common sense in determining whether the beyond-a-reasonable-doubt standard is satisfied
from inappropriate statements that the jurors only need be convinced of the defendant’s guilt
based on their common sense).
We agree with Thurmond that the State was ill-advised to remark that application of the
beyond-a-reasonable-doubt standard was the “kind of thing” people do “all the time.” However,
we decline to find error in the trial court’s failure to address this statement. See State v. Harper,
553 S.W.2d 895, 898 (Mo. App. Springfield 1977). The two Missouri cases upon which
Thurmond relies in arguing otherwise, in fact, undermine Thurmond’s argument. See id.; Green,
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307 S.W.3d at 202. Specifically, Harper found no error, plain or otherwise, regarding statements
that the beyond-a-reasonable-doubt standard was “not an impossible burden” and was a “very
realistic burden[.]” Harper, 553 S.W.2d at 897–98. Additionally, while Green found that posing
hypotheticals about reasonable doubt was impermissible during voir dire, Green did not hold it
was inappropriate to call the beyond-a-reasonable-doubt burden an “everyday” standard. Green,
307 S.W.3d at 202. Moreover, we find the State’s reference to using “common sense” too
cursory to constitute reversible error, even if the statement were inappropriate. See Rhodes, 988
S.W.2d at 527.
Furthermore, the record shows that the primary focus of the State’s comments regarding
the burden of proof was that venire-persons should follow the trial court’s instructions when
selected for the jury. Indeed, we generally presume that a jury follows the trial court’s
instructions. See State v. McFadden, 391 S.W.3d 408, 421 (Mo. banc 2013). Thurmond does
not allege that the trial court’s instructions were incorrect. Thus, even if the State’s voir dire
discussion on its burden of proof were improper, the trial court’s burden-of-proof instructions to
the jury would have cured the resulting error. See Green, 307 S.W.3d at 202–03 (internal
citations omitted). Finally, we also note that Thurmond has not demonstrated on appeal that the
State’s discussion of the beyond-a-reasonable-doubt standard “had a decisive impact on the
outcome of the trial.” See Dorsey, 318 S.W.3d at 655.
Despite our conclusions that no error occurred and that the State did not attempt to define
reasonable doubt in this specific case, we feel compelled to emphasize that our courts have
“roundly criticized” the practice of attempting to define reasonable doubt. State v. Thompson,
985 S.W.2d 779, 791 (Mo. banc 1999) (internal citations omitted). The State “flirt[s] with
disaster” not only when it erroneously attempts to define reasonable doubt, but even when only
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discussing the supposed meaning or application of reasonable doubt. See State v. Morris, 680
S.W.2d 315, 317 (Mo. App. S.D. 1984). Certainly the State may question venire-persons about
their willingness to follow the trial court’s instructions on the issue, as the State did here.
Beyond that, however, the State risks the reversal of convictions by violating our decades-old
decree against discussing the meaning or application of reasonable doubt during voir dire. See
id. (“It is past time that state counsel take cognizance of such practices, totally terminate them
and eliminate the problems thus ensuing to trial and appellate courts.”).
Because the record in this case demonstrates the State did not improperly offer a
definition of the burden of proof and appropriately directed venire-persons to follow the trial
court’s instructions, the trial court did not plainly err by declining to sua sponte interrupt the
State during voir dire. See Campbell, 600 S.W.3d at 788–89, 795–96. Point One is denied.
II. Point Two—Possession of Methamphetamine
In her second point on appeal, Thurmond contends that insufficient evidence supported
finding that Thurmond either actually or constructively possessed the methamphetamine found in
her purse with knowledge of the methamphetamine’s presence and nature.
A. Standard of Review
In reviewing challenges to the sufficiency of the evidence, we do not reweigh the
evidence. Instead, we accept as true all evidence and reasonable inferences tending to support a
verdict of the defendant’s guilt, and conversely ignore all contrary evidence and inferences.
Gilmore, 537 S.W.3d at 344 (internal citation omitted). “[E]vidence is sufficient to support a
conviction when there is sufficient evidence from which a reasonable fact-finder might have
found the defendant guilty beyond a reasonable doubt.” Id. (internal quotation omitted). We
“may not supply missing evidence, or give the State the benefit of unreasonable, speculative or
forced inferences.” Id. at 344–45 (internal quotation omitted).
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B. Analysis
“To prove possession of a controlled substance, the state must show conscious and
intentional possession of the substance, either actual or constructive, and awareness of the
presence and nature of the substance.” State v. Twitty, 506 S.W.3d 345, 347 (Mo. banc 2017)
(internal quotation omitted); see also Section 195.010(34).2
The State must prove two elements:
(1) actual or constructive possession, and (2) knowledge of the presence and nature of the
substance. See Gilmore, 537 S.W.3d at 344–45 (internal citation omitted); State v. Shigemura,
552 S.W.3d 734, 740 (Mo. App. E.D. 2018) (internal citations omitted).
“A person has actual possession if he has the substance on his person or within easy reach
and convenient control.” Section 195.010(34); State v. Goff, 439 S.W.3d 785, 792 (Mo. App.
S.D. 2014) (internal citation omitted). Constructive possession requires, at minimum, “evidence
that the defendant had access to and control over the premises where the controlled substances
were found.” State v. Clark, 490 S.W.3d 704, 709 (Mo. banc 2016) (internal quotation omitted).
“Exclusive possession of the premises containing the controlled substances raises an inference of
possession and control.” Id. (internal quotation omitted). When the premises is shared,
constructive possession requires further incriminating evidence tending to show the defendant
knew of the controlled substances and that the controlled substances were under the defendant’s
control. Id. at 709–10.
Generally, in cases of actual possession, knowledge of the presence and nature of a
controlled substance is reasonably inferred. State v. Gillum, 574 S.W.3d 766, 769–70 (Mo. App.
S.D. 2019) (internal citation omitted); but see Gilmore, 537 S.W.3d at 346 (holding that even if
there is actual possession based on proximity there must be some incriminating evidence that the
2 All Section references are to RSMo (2016).
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defendant knew of and had control of the controlled substance). In cases of constructive
possession, “[p]roof of a defendant’s knowledge often is supplied by circumstantial evidence of
the acts and conduct of the defendant that permit an inference that he or she knew of the
existence of the contraband.” Twitty, 506 S.W.3d at 347 (internal quotation omitted).
Thurmond argues the State did not adduce sufficient evidence to prove actual possession,
and that, at best, the case against Thurmond is one of constructive possession because Thurmond
was at most merely in proximate vicinity to her purse. We are guided by the clear holdings of
our courts which state that the element of actual possession is satisfied by showing the
contraband was within “easy reach and convenient control.” Section 195.010(34); Goff, 439
S.W.3d at 792. The record shows that when the police officers requested permission to search
the purse, Thurmond was near her purse, which was located on the nearby kitchen table.
Thurmond concedes this fact. The record contains no evidence of any obstacle preventing
Thurmond from simply reaching for her purse or exercising control over it. For this reason, we
hold the record contains sufficient evidence that Thurmond actually possessed the purse and the
methamphetamine in the purse. Section 195.010(34); Goff, 439 S.W.3d at 792. We note that
Thurmond at times appears to be arguing that she was not sufficiently close to the purse at the
time of the search to establish possession. Assuming this argument as true, the law does not
require that actual possession occur during the search. See Twitty, 506 S.W.3d at 348 (allowing
the permissible inference that the defendant possessed pseudoephedrine on the date of the
offense where the evidence suggested the defendant had possessed it earlier that day, even where
the search did not produce any pseudoephedrine). The jury could have drawn a reasonable
inference that Thurmond was sufficiently close to the methamphetamine in her purse to possess
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it at some point prior to the search, especially given the facts showing how close she was to her
purse when the officers asked for her permission to search the purse. See id.
We are persuaded that the State proved a case of actual possession given Thurmond’s
proximity to the purse and the lack of any facts suggesting that Thurmond did not exercise
convenient control over the purse, which she conceded belonged to her. Given the additional
incriminating evidence—namely, the methamphetamine being found in Thurmond’s own purse,
the smoking pipe found in plain view next to Thurmond’s purse, and the additional drug
paraphernalia found throughout Thurmond’s residence—the facts, when viewed in the light most
favorable to the State, overwhelmingly satisfy the second element that Thurmond have
knowledge of the presence and nature of the methamphetamine found in her purse. See Gilmore,
537 S.W.3d at 346; Gillum, 574 S.W.3d at 769–70.
We further note that, even if this were, as Thurmond maintains, a case of constructive
possession arising out of a shared premises, the record contains sufficient evidence that
Thurmond knew of the methamphetamine, knew of the methamphetamine’s nature, and had
control of the methamphetamine. See Twitty, 506 S.W.3d at 347; Clark, 490 S.W.3d at 709.
The methamphetamine was in Thurmond’s purse, which was sitting on the same table as a glass
smoking pipe in plain view, in a kitchen which Thurmond presumably could routinely access.
See Shigemura, 552 S.W.3d at 742 (citations omitted) (stating contemporaneous possession of
drug paraphernalia supports a finding that the defendant knowingly possessed the controlled
substance); State v. Stephens, 482 S.W.3d 499, 502 (Mo. App. S.D. 2016) (internal quotation
omitted) (stating routine access to the area where the controlled substance is located and
commingling of the controlled substance with the defendant’s personal belongings supports a
finding of constructive possession).
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When viewing the evidence in the light most favorable to the verdict, the record contains
sufficient evidence that Thurmond actually possessed the methamphetamine with knowledge and
awareness of the methamphetamine’s nature, and therefore sufficient evidence supported
Thurmond’s conviction for possession of a controlled substance. See Gilmore, 537 S.W.3d at
344; Twitty, 506 S.W.3d at 347. Point Two is denied.
III. Point Three—Retaliatory Sentencing
In her third point on appeal, Thurmond claims the trial court plainly erred in permitting
the State to reference Thurmond’s decision to proceed to trial during sentencing and considering
the State’s remarks about Thurmond exercising her right to trial in its sentencing, thereby
engaging in retaliatory sentencing.3
A. Standard of Review
Because Thurmond did not object during sentencing, we are limited to plain-error review
as discussed supra in Point One. See Rule 30.20; Muhammad, 478 S.W.3d at 474 (citing Letica,
356 S.W.3d at 167).
B. Analysis
Trial courts are to consider “all the circumstances,” including “the history and character
of the defendant,” when sentencing a defendant. Section 557.036(1). However, a trial court may
not enhance a defendant’s sentence in any respect due to the defendant’s constitutionallysafeguarded decision to proceed to trial. Goodwater v. State, 560 S.W.3d 44, 54–55 (Mo. App.
W.D. 2018) (internal citations omitted). In order to show that the trial court impermissibly
3
In her reply brief, Thurmond puts forth a second, different argument for why the trial court’s sentencing decision
was inappropriate. Then, during oral argument, Thurmond put forth a third argument as to why sentencing was
inappropriate. With few exceptions not applicable here, we do not consider allegations of error not properly briefed
on appeal, and therefore we decline to consider these new, alternative arguments. See Rule 30.20. We note that
even if we were to review these unpreserved arguments, we would be reviewing them for plain error given they
were not raised in Thurmond’s initial brief or in her motion for new trial. See id.; Rule 29.11(d).
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punished the defendant for exercising their right to trial, the defendant must not show merely the
“bare possibility” that the sentencing court inappropriately retaliated, “but rather must show
words stated by or attributed to the trial court directly connecting the imposition of enhanced
sentencing to the exercise of a constitutional right.” Johnson v. State, 552 S.W.3d 768, 776 (Mo.
App. E.D. 2018) (internal quotation omitted). We view the sentencing court’s comments in the
context of the entire sentencing proceeding. See State v. Collins, 290 S.W.3d 736, 747 (Mo.
App. E.D. 2009). Additionally, references to the defendant’s decision to exercise their right to
trial are not inappropriate when not retaliatory in nature but are instead made as part of an
assessment of an appropriate consideration. See id. (finding sentencing was not retaliatory
where the sentencing court referenced the defendant’s decision to proceed to trial and maintain
their innocence because the reference was in the context of discussing the defendant’s continued
refusal to accept responsibility).
Thurmond’s argument hinges on whether the trial court improperly considered the State’s
reference to Thurmond’s decision to forgo drug court and instead proceed to trial. First, we are
not persuaded that the State’s reference to Thurmond’s decision to proceed to trial was
inappropriately retaliatory in nature, because the State’s comments were part of a larger,
appropriate argument that Thurmond consistently had opposed being placed on supervision and
consistently denied having any sort of drug problem, making her a poor candidate for probation.
See id.; Section 557.036(1). Second, even if the State’s mention of Thurmond’s decision to go to
trial was inappropriate, Thurmond has not made the required showing of statements made by or
attributable to the trial court directly connecting her denial of probation to her decision to
proceed to trial. See Johnson, 552 S.W.3d at 776.
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Nevertheless, Thurmond argues that the reason for the trial court’s denial of probation is
unclear, and therefore this case should be remanded. Thurmond relies upon Greer v. State, 406
S.W.3d 100, 110 (Mo. App. E.D. 2013), where we remanded the matter because the sentencing
court’s reasoning was not “readily discernible.” Thurmond misinterprets Greer; we did not
remand in Greer merely due to the uncertainty of the sentencing court’s reasoning. In Greer, the
sentencing court affirmatively made alarming statements suggesting that it was not willing to
give defendants sentences shorter than their pretrial recommendations if they exercised their
right to trial. See id. at 109–10. Unlike the present case, in Greer, “words stated by or attributed
to the trial court,” reasonably could have been understood as “directly connecting the imposition
of enhanced sentencing to the exercise of a constitutional right.” See Johnson, 552 S.W.3d at
776 (internal quotation omitted). Such statements by the trial court are lacking here. A
reasonable and rational interpretation of the trial court’s comments that “I don’t know what’s
going on with you right now, but you’ve got way too much stuff going on all over the place,”
addresses the trial court’s realistic and practical concern that Thurmond was not a good candidate
for probation—nothing more. The record lacks any statement by the trial court suggesting that
its decision to impose a seven-year sentence and not grant probation was influenced in any way
by Thurmond’s exercise of her right to a jury trial. Point Three is denied.
Outcome: The judgment of the trial court is affirmed.
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