State of Missouri vs. Jonathan Edward Rainey

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) WD87377 ) JONATHAN EDWARD RAINEY, ) Opinion filed: November 12, 2025 ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI THE HONORABLE JOSHUA C. DEVINE, JUDGE

Before Division Two: Lisa White Hardwick, Presiding Judge, Edward R. Ardini, Jr. , Judge and W. Douglas Thomson, Judge Jonathan Rainey ("Rainey") appeals his conviction for unlawful possession of a firearm and possession of a controlled substance. On appeal, Rainey claims the trial court erred in overruling his motion to suppress evidence and admitting evidence relating to the firearm and cocaine found during a traffic stop. Rainey also raises a sufficiency of the evidence claim, contending the State failed to prove that he possessed the firearm, the magazine, and the bullets. We affirm.

2

Factual and Procedural History 1

On July 24, 2022 at about 10:30 p.m., Officer 1 2 of the Columbia Police Department was on patrol traveling westbound on Clark Lane, past the Highway 63 connector, when he observed a vehicle traveling approximately 55 miles per hour in a 35-miles-per-hour zone. Officer 1 ran the temporary tags on the vehicle through Missouri Department of Revenue ("DOR") records which provided that Rainey was the owner of the vehicle. He then activated his emergency lights and pulled over the vehicle. Rainey was the driver of the vehicle and its only occupant. Upon seeing him and viewing his identification, Officer 1 recognized Rainey as someone he had previously interacted with as a backup officer. During these prior interactions, Rainey was arrested on firearm charges. Officer 1 also knew Rainey to be a felon. During the traffic stop, Rainey asked Officer 1 how he was doing. Officer 1 said, "I'm doing pretty good, how about yourself?" Rainey then volunteered, "I'm alright, I was going to take this car back." 3 Rainey stated that he had borrowed the car from his friend "Rashad," but was unable to provide a last name. Officer 1 found this odd, as his DOR check indicated Rainey was the owner of the vehicle. Officer 1 then returned to his vehicle to run a criminal records check.

1 "On appeal from a jury-tried case, we view the facts in the light most favorable to the jury's verdict." State v. Putfark, 651 S.W.3d 869, 874 n.2 (Mo. App. W.D. 2022) (citation omitted). 2 Pursuant to Supreme Court Operating Rule 2.02(c)(3), we do not provide the names of any non-party witnesses in this opinion. 3 Officer 1 stated on direct examination that he asked Rainey "where he was going to," to which Rainey responded, to return the vehicle to my friend. However, the officer's bodycam footage shows the above conversation took place.

3

Aware of Rainey's background regarding firearms, Officer 1 requested backup so he could frisk Rainey before engaging with him further. While Officer 1 was waiting for backup, he stayed focused on Rainey and observed that he had his head out the car window, staring back at him as if to watch what he was doing. Soon thereafter, Officer 2, also of the Columbia Police Department, arrived at the scene. Officer 1 told Officer 2 that they were going to conduct a "frisk[ 4 ] of the vehicle." Officer 1 then returned to Rainey and asked him to exit the vehicle. He told Rainey that he was going to search him for weapons. At the suppression hearing, Officer 1 provided several reasons for this request, testifying that Officer 1 knew Rainey had a history of possessing firearms, they were located in a very high crime area, Rainey lied about who owned the vehicle, 5 and Rainey acted nervous when Officer 1 started talking about weapons. Rainey complied, but was "not happy about it." Officer 1 then conducted a frisk of Rainey's person and did not

4 For reasons which are unclear, throughout the hearing on the motion to suppress, the parties refer to the initial cursory search of the passenger compartment of the vehicle as a "frisk." We will refer to that cursory search by its more common phrase, a "protective search." See Michigan v. Long, 463 U.S. 1032, 1049 (1983); State v. Koen, 487 S.W.2d 562, 564 (Mo. 1972); State v. McFall, 991 S.W.2d 671, 674 (Mo. App. W.D. 1999) ("Terry protective search of an automobile" (citing Long, 463 U.S. at 1049-50)); State v. Lane, 701 S.W.3d 693, 700 (Mo. App. E.D. 2024) ("protective search of Defendant and the vehicle"). 5 Officer 1 based his knowledge that Rainey was the record titleholder of the vehicle on a radio check just prior to the traffic stop. At trial, Rainey countered Officer 1's belief with DOR certified records dated June 7, 2024 that listed the vehicle's owner as another individual as of November 10, 2021, eight months before the stop. Curiously however, while Rainey initially told the officer he borrowed the car from his friend, "Rashad," and was returning the car to "Rashad," the certified records produced by Rainey did not evidence "Rashad" as the record owner, but rather a third person. No effort was made by Rainey to connect "Rashad" to the record owner of the vehicle, or Rainey to either "Rashad" or the record owner.

4

find any weapons. Officer 2 began walking Rainey to a position such that he would be in-between the vehicles for traffic safety. While the other two were walking, Officer 1 conducted a protective search of the vehicle, where he found a firearm, specifically a Glock 17, underneath the driver's seat with the barrel of the firearm directly even with the seat. The protective search of the vehicle consisted of a "cursory search for weapons in the immediate area that [Rainey] could reach." It took Officer 1 approximately five seconds to locate the firearm after turning his attention to the vehicle. Knowing that Rainey was a felon, and therefore it was illegal for him to possess a firearm, after the protective search turned up the firearm Officer 1 returned to Rainey and Officer 2, handcuffed Rainey, and placed him under arrest. Officer 1 then went back to the vehicle and retrieved the firearm. The firearm was loaded with an extended magazine attached to it. Officer 2 then conducted a search incident to arrest of Rainey's person. On Rainey, he found a white pill bottle in Rainey's front left pocket and a folded-up dollar bill in Rainey's wallet. Both appeared to contain cocaine. Officer 2 and Officer 1 then searched Rainey's car for further evidence relating to possession of the firearm. This search resulted in Officer 2 locating an additional, smaller magazine in the glove box. Bullets were found inside the magazine in the firearm and inside the magazine found in the glove box. Officer 2 transported Rainey to the county jail. There, Officer 2 performed an additional search of Rainey as he was booked into the jail. This search revealed another folded-up dollar bill containing cocaine inside one of Rainey's shoes.

5

Laboratory testing confirmed that the substance in the pill bottle found in Rainey's pocket, and the folded-up dollar bills found in Rainey's wallet and shoe, contained cocaine. Rainey was charged as a persistent offender with (1) unlawful possession of a firearm, for possessing a firearm after being convicted of a felony; (2) possession of a controlled substance, cocaine; and (3) stealing, the firearm. Rainey filed a motion to suppress physical evidence of the firearm and drugs found as a result of the traffic stop. After a suppression hearing, the trial court denied the motion. The case proceeded to a jury trial during which the State proceeded to offer each item of contraband into evidence. Each time such an offer was made, Rainey replied, "no objection," with all contraband ultimately being admitted into evidence. At the conclusion of the trial, Rainey was found guilty of unlawful possession of a firearm and possession of a controlled substance, and not guilty of stealing. Rainey filed a motion for acquittal, or in the alternative for a new trial, arguing the trial court erred in admitting physical evidence relating to the firearm and the cocaine seized during the allegedly unlawful search, and that insufficient evidence existed to support a conviction for unlawful possession of a firearm. The trial court denied the motion and sentenced Rainey to seven years on each charge, to run concurrently. Rainey appeals. Point 1: Rainey's Motion to Suppress—The Search In his first point on appeal, Rainey argues the trial court erred in overruling his motion to suppress evidence of the firearm found under his seat, both

6

magazines, and the bullets. He claims he was the subject of an unreasonable search in violation of his rights under the United States and Missouri Constitutions. We disagree. Preservation of Error To review Rainey's claim, it must have been properly presented to the trial court and preserved for our review. State v. Young, 603 S.W.3d 305, 313 (Mo. App. E.D. 2020). "The general rule for the preservation of error is an objection stating specific grounds must be made at trial, the same grounds must be set out in the motion for new trial, and these grounds must be renewed in the appellate brief." Id. (citation omitted). Trial courts "are not to be convicted of error for reasons not presented to them and mentioned for the first time on appeal." State v. Stone, 430 S.W.3d 288, 290 (Mo. App. S.D. 2014) (quoting State v. Gray, 926 S.W.2d 29, 33 (Mo. App. W.D. 1996)). Appellants must "object with sufficient specificity to apprise the trial court of the grounds for the objection." State v. Amick, 462 S.W.3d 413, 415 (Mo. banc. 2015) (quoting State v. Stepter, 794 S.W.2d 649, 655 (Mo. banc 1990)). Here, we address two issues of preservation, both of which derive from Rainey's manner of preserving his argument that the contraband was discovered as the result of an improper search. First, although not asserted by the State as a preservation issue, we must initially address Rainey's response of "no objection" as the State offered each item of contraband into evidence at trial. Generally, "if a defendant not only fails to object but also states 'no objection' or stipulates to the admission of otherwise

7

objectionable evidence, the defendant affirmatively waives any error in its admission, plain or otherwise." State v. Hughes, 563 S.W.3d 119, 125 (Mo. banc. 2018) (citing State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009); and State v. Starr, 492 S.W.2d 795, 801 (Mo. banc 1973)). However, "Missouri courts have held that an issue is properly preserved for appellate review so long as the [trial] court and the State 'mutually understood' that a defendant intended to preserve a previously stated objection." State v. Gant, 708 S.W.3d 899, 905 (Mo. App. W.D. 2025) (citing State v. Baker, 103 S.W.3d 711, 716 (Mo. banc 2003); and State v. O'Neal, 392 S.W.3d 556, 562-63 (Mo. App. W.D. 2013)). "Under the 'mutual understanding' principle, courts have found issues to be preserved even where the defendant was not expressly granted a continuing objection, and even where defense counsel stated that they had 'no objection' when the challenged evidence was actually introduced." Id. (citation omitted). "This, 'mutual understanding' exception is an often-recognized and narrow carve-out to the affirmative-waiver rule." Hughes, 563 S.W.3d at 125 (citations omitted). "Whether to infer such a mutual understanding will depend on the facts of a particular case." Id. at 126. Here, during the pretrial conference Rainey stated that, "[a]t some point I'd like to preserve—create a record for—to appeal the issue of the suppression issue." The trial court suggested Rainey preserve the issue by incorporating the record of the suppression hearing into the trial record stating, "I don't see any reason why that would be problematic in terms of preserving the issue." Rainey replied,

8

"Okay." At the commencement of trial, Rainey then offered the suppression hearing transcript into the record. The trial court granted Rainey's request, stating "all records related to that proceeding—the transcript from that proceeding, the Motion to Suppress itself, and all docket entries related to the Motion to Suppress to be incorporated by reference into our trial proceeding," and "those things are ordered made a part of our record here today by reference." The State did not object. On appeal, Rainey has analyzed the "mutual understanding" principle in his discussion of preservation. The State's brief is silent on the issue and, in keeping with its lack of objection at trial when the suppression hearing transcript was offered, makes no argument that the suppression issue is not preserved. The State's silence on the preservation issue buttresses the suggestion that the "mutual understanding" principle is applicable here as it is apparent all parties understood Rainey did not intend to abandon his objection. 6 See Gant, 708 S.W.3d at 905-06. Accordingly, the matter is preserved for appeal.

6 Herein lies the conundrum for any party seeking reliance solely upon the "mutual understanding" principle to preserve an issue on appeal. At trial, Rainey stated "no objection" each time contraband was offered into evidence. In doing so, Rainey "affirmatively waive[d] any error in its admission, plain or otherwise[,]" but for its preservation under the "mutual understanding" principle. Hughes, 563 S.W.3d at 125. Though we determine the issue is preserved for appeal based upon this principle, we emphasize that here the State has essentially treated the question of admissibility of the contraband as preserved by its silence on the matter in its briefing. But, as stated previously, "[w]hether to infer such a mutual understanding will depend on the facts of a particular case." Id. at 126. And, we emphasize that the mutual understanding principle is a "narrow carve-out to the affirmative-waiver rule." Id. at 125 (citations omitted). Accordingly, "[a]ny resulting uncertainty and confusion as to whether objections to evidence are preserved could and should be avoided by making an objection to the admission of the contested evidence during the bench trial[.]" Id. at 126. This is equally

9

The second preservation issue is presented by the State, which argues that Rainey's point should be dismissed because Rainey has presented a different argument on appeal than that presented to the trial court. Specifically, the State argues that the issue analyzed at the trial court was whether Officer 1 had reasonable suspicion to frisk Rainey's person and perform a protective search of the vehicle, whereas on appeal, Rainey's point relied on asserts that the officers did not have probable cause to search the car. The State further contends that Rainey has not identified which car search he is complaining about, the protective search which located the firearm or the more thorough search following the firearm's discovery. Based on a review of the entire record, the issue is preserved. Initially we note, "Our rules for preservation of error for review are applied, not to enable the court to avoid the task of review, nor to make preservation of error difficult for the appellant, but, to enable the court—the trial court first, then the appellate court—to define the precise claim made by the defendant." Amick, 462 S.W.3d at 415 (quoting State v. Pointer, 887 S.W.2d 652, 654 (Mo. App. W.D. 1994)). "The intent is that both the trial court and the appellate court may know specifically what the objections are, and that the appellate court may know that they have been presented to the trial court." Baker, 103 S.W.3d at 716 (quoting Ayres v. Keith, 355 S.W.2d 914, 917 (Mo. 1962)). The concern is not

true for a jury trial. The careful practitioner should make the proper objection as evidence is offered in order to properly preserve matters for appeal, and not rely upon the mutual understanding principle.

10

implicated when "neither the prosecutor nor the trial court misunderstood appellant's statement[s][.]" Id. Here, the purpose of the preservation requirement is satisfied because it was sufficiently clear to the State and the trial court that Rainey was arguing no reasonable suspicion existed to perform a protective search of his person or his car. Rainey has not abandoned this argument on appeal. At the hearing on the motion to suppress, Rainey recognized that each search was one link in a continuous chain of events. Rainey stated, "I think if the Court finds that he had reasonable suspicion to frisk the defendant, then he could have also frisked the vehicle, and, whether [the firearm] was sticking out or not [the officer], would have found [it] during the frisk of the vehicle." Rainey continued on to state that if these protective searches were lawful, then the subsequent, more thorough search of his person was also lawful. It necessarily follows that in order to challenge the admission of any piece of evidence obtained that night, Rainey must demonstrate that reasonable suspicion did not exist to perform the initial, protective searches. Problematically, Rainey's point on appeal states only that "there was not probable cause to search the car." Here, it suffers from the same lack of precision seen throughout this case when discussing the challenged search. Throughout Rainey's trial court filings, he appears to use reasonable suspicion and probable cause interchangeably. He often complains of an "unlawful search" without detailing which search he is challenging or which standard should be applied. In spite of this inartful drafting, it is clear the trial court and the State understood that

11

Rainey was challenging the entire chain of events, beginning with the protective search of his person. Further, while Rainey's point relied on may generally address the search of his car, his brief brings clarification to his argument and repeatedly addresses the initial frisk of Rainey's person and the protective search of the car he was driving. And, notably, the State addressed these issues in its briefing. A court may review an appellant's claim "where the argument portion of a brief clarifies the issues an appellant intends to raise in a defective point relied on[.]" Gan v. Schrock, 652 S.W.3d 703, 709 (Mo. App. W.D. 2022) (collecting cases); see Marvin v. Kensinger, 682 S.W.3d 788, 797 (Mo. App. W.D. 2023) ("This Court will frequently exercise its discretion to overlook technical deficiencies in an appellant's Points Relied On, where the argument section of the brief clarifies the appellant's claim of error."). The Court will proceed with this understanding. Standard of Review When reviewing a motion to suppress evidence, this Court will reverse only if the trial court's ruling is found to be clearly erroneous. 7 State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). "In reviewing a trial court's ruling on a motion to suppress, there must be substantial evidence to support the ruling." State v. Johnson, 599 S.W.3d 196, 200 (Mo. App. W.D. 2020) (quoting State v. Perry, 548 S.W.3d 292, 297 (Mo. banc 2018)). "This Court defers to the trial court's factual findings and credibility determinations . . . and considers all evidence and

7 Because the suppression issue was adequately preserved, plain error review does not apply. See State v. Higgs, 649 S.W.3d 107, 116 (Mo. App. W.D. 2022).

12

reasonable inferences in the light most favorable to the trial court's ruling." Sund, 215 S.W.3d at 723 (citations omitted). "If the trial court's ruling is plausible in light of the record viewed in its entirety, this [C]ourt may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." State v. Lindsay, 599 S.W.3d 532, 535 (Mo. App. E.D. 2020) (internal quotation marks and citation omitted). "Nevertheless, whether the Fourth Amendment was violated is a question of law that this Court reviews de novo." Id. (citation omitted). Analysis "The Fourth Amendment to the United States Constitution guarantees that individuals will not be subject to unreasonable searches or seizures." Sund, 215 S.W.3d at 723. "Article I, section 15 of the Missouri Constitution provides the same protection against unreasonable searches and seizures as that of the Fourth Amendment." State v. Grayson, 336 S.W.3d 138, 143 n.2 (Mo. banc 2011). Thus, the same analysis applies for both. Id. "A routine traffic stop based upon an officer's observation of a violation of state traffic laws is a reasonable seizure under the Fourth Amendment." 8 Sund, 215 S.W.3d at 723. Under the principle laid out in Terry v. Ohio, 392 U.S. 1 (1968), "an officer may . . . briefly detain a person for questioning upon the officer's reasonable suspicion that the person may be connected with criminal activity." Lindsay, 599 S.W.3d at 536 n.1. "[O]fficers are

8 Officer 1 pulled Rainey over for a speeding violation. Rainey does not contest the validity of the initial traffic stop.

13

well within their authority to ask occupants to exit a vehicle during a traffic stop and may frisk those persons for weapons if they possess a reasonable suspicion that they may be armed." State v. Waldrup, 331 S.W.3d 668, 674 (Mo. banc 2011) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam)). In Michigan v. Long, 463 U.S. 1032 (1983), "the Terry principle was extended to the search of the interior of the vehicle if the police officer possesses a reasonable belief . . . the suspect is dangerous and the suspect may gain immediate control of weapons." Id. (internal quotation marks and citation omitted). "A Terry protective search of an automobile is justified only if the police officer possesses a reasonable belief based on specific and articulable facts, as well as the reasonable inferences from those facts, that his safety or that of others is in danger." McFall, 991 S.W.2d at 674 (citing Long, 463 U.S. at 1049-50). "The existence of reasonable suspicion is determined objectively: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate?" State v. Pike, 162 S.W.3d 464, 472 (Mo. banc. 2005) (quoting Terry, 392 U.S. at 21-22) (internal quotation marks omitted). Reasonable suspicion is a lower standard than probable cause. Id. at 473. "A suspicion is reasonable when, in light of the totality of the circumstances, the officer is 'able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Grayson, 336 S.W.3d at 143 (quoting Terry, 392 U.S. at 21).

14

Officer 1 identified four main reasons prompting his frisk of Rainey's person and the protective search of the vehicle he was driving. Rainey argues these are insufficient to create a reasonable suspicion. Officer 1 stated he knew Rainey had a history of possessing firearms, they were in a high crime area where shots had been fired, Rainey provided false statements about the ownership of the vehicle, and Rainey was extremely nervous. Though we consider the totality of the circumstances in determining whether reasonable suspicion exists, Rainey challenges the individualized merit of each reason articulated by Officer 1. See State v. Higgs, 649 S.W.3d 107, 123 (Mo. App. W.D. 2022) ("Rather than look at each circumstance individually, however, reviewing courts must consider the totality of the circumstances[.]" (citation omitted)). Thus, we address each in turn. First, Officer 1 observed that Rainey looked familiar upon approaching the vehicle. After seeing Rainey's identification, Officer 1 recalled that he had previously interacted with Rainey during encounters in which Rainey was arrested on firearm charges. Rainey argues that "[k]nowledge of a person's prior criminal involvement . . . is alone insufficient to give rise to the requisite reasonable suspicion." State v. Hawkins, 137 S.W.3d 549, 558 (Mo. App. W.D. 2004) (citation omitted). However, "[k]nowledge of recent relevant criminal conduct, is a permissible component of the articulable suspicion required for a Terry stop." Higgs, 649 S.W.3d at 123 (alteration in original) (internal quotation marks and citation omitted). Here, Officer 1 was aware not only of prior criminal conduct, but specifically of prior firearm possession and firearm-related arrests. This is a

15

permissible factor to consider in determining if it was reasonable to believe the suspect may be armed. 9

Second, Officer 1 was in a high crime area. While presence in a high crime area alone is also not enough to support a reasonable suspicion, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Hawkins, 137 S.W.3d at 558 (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). And here, such relevant circumstances supported the trial court's decision. Officer 1 testified that not only was this a high crime area, but numerous shots had been fired in that area. Further, Officer 1 was alone on patrol. And, the stop was made after dark thereby further isolating him. These facts lend context to Officer 1's reasonable suspicion and concerns for officer safety. Third, Officer 1 reasonably believed Rainey lied about who owned the car he was driving, which drew his suspicion of Rainey. When Officer 1 ran the temporary tag on the car Rainey was driving before he pulled the car over, the search revealed the car was registered to Rainey. Rainey, however, then quickly volunteered to

9 Rainey also relies upon State v. Grayson, 336 S.W.3d 138 (Mo. banc 2011), and Taylor v. State, 234 S.W.3d 532 (Mo. App. W.D. 2007), both of which are easily distinguished. In Grayson, the officer's sole articulated justification for detaining the defendant while the officer checked for warrants was his hunch that because he knew the defendant had been arrested before, a current warrant might exist. 336 S.W.3d at 146. As evidenced by the four articulated reasons provided by Officer 1, this factual scenario does not exist here. In Taylor, the State argued a frisk of the person was reasonable in part because the officer knew the defendant to be a drug dealer. 234 S.W.3d at 537. However, the court found that argument undermined because the officer had frisked the defendant over 50 times in past encounters and had never found a weapon. Id. Our facts are not similar to Taylor, as Officer 1 was aware of recent firearm-related arrests involving Rainey. Neither Grayson or Taylor are helpful to Rainey.

16

Officer 1 that he was only borrowing the vehicle from a friend, and provided the first name of the friend but stated he did not know the last name. 10 "False statements to police can give rise to an inference of guilty behavior." Higgs, 649 S.W.3d at 123 (citation omitted). Accordingly, "at the moment of the seizure," Officer 1's reasonable suspicion was raised by what appeared by the known facts to be a lie propounded upon him by Rainey. See Pike, 162 S.W.3d at 472 (citation omitted). Finally, Officer 1 stated Rainey began "getting extremely nervous when [he] started talking about weapons." During Officer 1's initial approach of Rainey's vehicle, and when Officer 1 returned to his vehicle to request backup, Rainey had his head sticking out the window watching the officer. "While nervousness alone is insufficient to establish reasonable suspicion, 'it can be considered as one factor in the totality of the circumstances.'" Higgs, 649 S.W.3d at 123 (quoting State v. Smith, 373 S.W.3d 502, 506 (Mo. App. S.D. 2012)). Rainey points us to State v. Slavin, 944 S.W.2d 314, 318 (Mo. App. W.D. 1997), where the officer primarily relied on defendant's nervousness to justify the detention and subsequent search, but also considered that he had fishing poles and luggage in the back seat instead of the trunk, paid cash for his vehicle while he was not working full time, and was

10 We realize that at trial, Rainey produced certified records from the DOR indicating he is not the titleholder of the car. Regardless, whether Rainey was actually lying about ownership of the car is irrelevant, as reasonable suspicion is determined based on the "facts available to the officer at the moment of the seizure." Pike, 162 S.W.3d at 472 (citation omitted). When Rainey told Officer 1 the vehicle was not his, Officer 1 knew only that Rainey was the registered owner of the vehicle and did not know he was not the record titleholder.

17

traveling west to east on Interstate 70. Id. at 320-21. The court found these additional factors were so insignificant that nervousness alone was the only meaningful factor remaining to contribute to the officer's reasonable suspicion. Id. at 320. Thus, the requisite reasonable suspicion was lacking. Id. at 318. The instant case is distinguishable in that here, each factor relied on by the State is well established as relevant to a reasonable suspicion analysis. As stated, Rainey asserts that each of these factors alone is insufficient to establish reasonable suspicion. This, however, is not how we analyze reasonable suspicion. "Rather than look at each circumstance individually, . . . reviewing courts must consider the totality of the circumstances to determine whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." Higgs, 649 S.W.3d at 123 (citation omitted). "[T]he fact that each factor relied on by the officer is innocent in itself does not preclude a finding of reasonable suspicion if, when taken together, the facts are adequate to create reasonable suspicion of criminal activity." Slavin, 944 S.W.2d at 318. Considered in their totality, the circumstances known to Officer 1 during the traffic stop established a reasonable suspicion that Rainey was dangerous and could gain control of a weapon. He knew Rainey had a history of possessing firearms because he had been involved in Rainey's past arrests on firearm charges. They were in a high crime area, at night, where shots had been fired. Officer 1 reasonably believed Rainey provided false statements about the vehicle's ownership, and he acted nervous throughout the encounter. These facts were

18

sufficient to provide Officer 1 with a reasonable suspicion that Rainey may have been armed. Coupled together, these factors led Officer 1 to be concerned for his own safety, and ultimately to ensure Rainey did not have any weapons on him. Thus, it was appropriate for Officer 1 to perform a protective search of Rainey's person and vehicle limited to those area's within Rainey's immediate reach. See Lindsay, 599 S.W.3d at 538 ("[W]hen [the officer] made his second approach to the vehicle, he could have asked [the defendant] to exit the vehicle to allow him to perform a warrantless sweep or search of [the defendant's] vehicle for the officer's own protection in areas within the immediate reach of [the defendant][.]"). Upon finding the firearm under the driver's seat and knowing Rainey to be a felon, Officer 1 and Officer 2 had probable cause to perform the more thorough search of the vehicle under the automobile exception to the warrant requirement. See State v. Delapp, 581 S.W.3d 156, 160 (Mo. App. W.D. 2019) ("[T]he automobile exception to the warrant requirement allows an officer to search a vehicle and seize contraband when probable cause exists." (alteration in original) (citation omitted)). The trial court did not clearly err in overruling Rainey's motion to suppress. Accordingly, Point I is denied. Point 2: Rainey's Motion to Suppress—The Fruit of the Poisonous Tree In his second point on appeal, Rainey argues the trial court erred in overruling his motion to suppress all of the drug evidence resulting from the search of his person at the traffic stop and at the jail. His argument hinges on the success of his Point I argument—that the protective search of his vehicle was unlawful.

19

Specifically, Rainey argues the cocaine uncovered during the search incident to arrest for unlawful possession of a firearm was inadmissible fruit of the poisonous tree because the search that produced the firearm was unlawful. 11 The standard of review is the same as that provided in Point I. Commonly known as the exclusionary rule, "evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree." State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995) (citation omitted). Because the protective searches of Rainey's car and his person did not violate his Fourth Amendment right against unreasonable searches as explained in Point I, the exclusionary rule does not apply. Thus, Point II is denied. Point 3: Insufficient Evidence of Possession of a Firearm In his third point on appeal, Rainey challenges his conviction for unlawful possession of a firearm. He argues that the trial court erred in overruling his motion for judgment of acquittal, denying his motion for new trial, and imposing a sentence for unlawful possession of a firearm because there was insufficient evidence for the jury to find beyond a reasonable doubt that he possessed the firearm, magazine, and bullets. We disagree. Standard of Review "This Court's review is limited to determining whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty

11 Rainey has maintained this argument throughout his motion to suppress and motion for a new trial. As explained in Point I, Rainey's failure to object to the introduction of the drug evidence at trial does not waive his objection for appellate review. Thus, the issue is adequately preserved for our review.

20

beyond a reasonable doubt." State v. Zetina-Torres, 482 S.W.3d 801, 806 (Mo. banc 2016) (citation omitted). In determining whether there is sufficient evidence "to support a conviction and to withstand a motion for judgment of acquittal, this Court does not weigh the evidence but rather accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidence[] and inferences." State v. Lehman, 617 S.W.3d 843, 846-47 (Mo. banc 2021) (quoting State v. Gilmore, 537 S.W.3d 342, 344 (Mo. banc 2018)). "[W]hen there is conflicting evidence, an appellate court presumes that the fact-finder 'resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" State v. Blackmon, 421 S.W.3d 473, 475 (Mo. App. S.D. 2013) (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)). Analysis Rainey was convicted of unlawful possession of a firearm under section 571.070. 12 "The elements of unlawful possession of a firearm are: (1) knowing possession of a firearm (2) by a person who had been convicted of a felony." State v. King, 674 S.W.3d 218, 231 (Mo. App. W.D. 2023) (citation omitted). Rainey does not dispute that he has been convicted of a felony. Thus, the sole issue is whether a reasonable juror could have found beyond a reasonable doubt that Rainey possessed the firearm. 13 "Possession" is statutorily defined as:

12 All statutory citations are to RSMo (2016), as supplemented through the date of the offense, unless otherwise stated. 13 A firearm is defined as "any weapon that is designed or adapted to expel a projectile by the action of an explosive." Section 571.010(8). In keeping with MAI-CR and said definition, the verdict director for the charge of unlawful use of a weapon

21

having actual or constructive possession of an object with knowledge of its presence. A person has actual possession if such person has the object on his or her person or within easy reach and convenient control. A person has constructive possession if such person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Section 556.061(38). "The rules for possession of a firearm are similar to the rules for possession of a controlled substance." State v. McCauley, 528 S.W.3d 421, 430 (Mo. App. E.D. 2017). "Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the [contraband]." Zetina-Torres, 482 S.W.3d at 807 (quoting State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992)). "Thus, proof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the [contraband] was found." Id. (citation omitted). While exclusive control over the premises "raises an inference of possession and control[,]" joint control requires the state to produce additional evidence connecting the defendant to the firearm. Id. "The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proven." State v. Johnson, 81 S.W.3d 212, 216 (Mo. App. S.D. 2002) (citation omitted). "Proof of a defendant's knowledge often is supplied

referenced only the firearm and not the magazine and bullets Rainey mentions in his Point III. Thus, Rainey was charged and convicted only of being a felon in possession of a firearm. We address the firearm charge, ignoring his assertions directed towards sufficiency of the evidence regarding possession of the magazine and bullets, neither of which are associated with the pending case.

22

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." State v. Taylor, 407 S.W.3d 153, 160 (Mo. App. E.D. 2013). In the instant case, the State argues that Rainey had actual possession of the firearm and/or exclusive control over the vehicle because he was the vehicle's sole occupant and the firearm was located directly underneath the seat Rainey was occupying, near the front edge. Thus, the State argues, the firearm was within Rainey's easy reach and convenient control. The State finds support in State v. Poindexter, 941 S.W.2d 533, 535-36 (Mo. App. W.D. 1997), which held that the defendant had exclusive control over a vehicle because he was the vehicle's owner and the sole occupant of the car at the time of the traffic stop. However, because we do not have to decide if Rainey had actual possession of the firearm, and because there is an ownership dispute in this case, we will evaluate this case through a constructive possession lens. For, even if Rainey was not the owner of the car and it was not under his exclusive control, there is sufficient evidence to establish Rainey had constructive possession of the firearm. As stated, the firearm was found by Officer 1 along the front edge of the driver's seat which Rainey was occupying. It took Officer 1 approximately five seconds to locate the firearm once Rainey was removed from the vehicle. Rainey argues that mere presence in a vehicle where a weapon is found is insufficient to prove possession. See State v. Chavez, 128 S.W.3d 569, 574 (Mo. App. W.D. 2004) ("The mere fact that [the defendant] was present in the vehicle where the items were

23

found is not sufficient to make a submissible case.") (alteration in original) (citation omitted)). However, close proximity to contraband is a relevant factor supporting the inference of knowledge of the firearm's presence. Cf. State v. Glass, 439 S.W.3d 838, 845 (Mo. App. E.D. 2014) ("He was not found in close proximity to a controlled substance such that it would support an inference of knowledge."). And, easy accessibility to the defendant is also among those factors considered. Zetina-Torres, 482 S.W.3d at 807; State v. Barnett, 595 S.W.3d 515, 523 (Mo. App. E.D. 2020) ("Access to drugs or paraphernalia can suggest knowledge of and control over the contraband."). Second, Rainey was visibly nervous during the traffic stop. In fact, Rainey admitted that he was nervous during the stop. The defendant's nervousness is another factor used to support an inference of knowledge and control. Zetina- Torres, 482 S.W.3d at 807. Rainey directs us to caselaw suggesting that proximity to contraband and nervousness alone are insufficient additional evidence to connect him to the firearm. Barnett, 595 S.W.3d at 524. However, in Barnett, the defendant's claimed reason for nervousness was not directly tied to the defendant himself, but rather that another vehicle occupant was on probation. Id. at 521. Here, the reasonable inference to be drawn from Rainey's nervousness is that he knew the firearm was in the vehicle and he himself would be subject to arrest rather than a third-party having issues with the law. Thus, Rainey's nervousness supports an inference of knowledge and control.

24

Third, irrespective of the ultimate ownership issue at trial, Rainey made false, incomplete statements to the officer regarding the ownership of the vehicle. See Zetina-Torres, 482 S.W.3d at 807 (including "false statements in an attempt to deceive the police" as a factor indicating knowledge and control). Rainey told Officer 1 that he was returning the borrowed vehicle to a friend, "Rashad," but was unable to provide a last name. Though at trial, DOR records reflected that title was held by another individual, it was not "Rashad." Notwithstanding the ownership dispute, Rainey made a false statement to the officer because in no event was "Rashad" the owner of the car. Further, it is significant that Rainey immediately volunteered that he was "going to take this car back," in response to Officer 1 simply asking how he was doing. These false and evasive statements by Rainey were indicative of his attempt to distance himself not only from ownership of the vehicle but also possession of its contents and infers his actual, underlying knowledge of the contents thereof. These factors support an inference of constructive possession. Finally, Rainey relies heavily on two cases in which the court found insufficient evidence existed to establish possession of a controlled substance. Neither supports his position. First, Rainey cites to State v. Bristol, 98 S.W.3d 107, 111 (Mo. App. W.D. 2003). Rainey's reliance on Bristol is foreclosed by State v. Watson, 290 S.W.3d 103 (Mo. App. S.D. 2009), which aptly describes the facts in Bristol: In comparing Bristol to the present matter the following differences emerge: in Bristol there were several occupants of the vehicle and in

25

this case Appellant was alone; in Bristol the police officer testified that the controlled substance at issue in that case was located far under the driver's seat and was definitely not in plain view while in the instant case Officer Howard testified the methamphetamine was located in the "floorboard" possibly partially under the seat; in Bristol the defendant did not act nervous and in this case Appellant was distinctly nervous when interacting with Officer Howard; and in Bristol there was evidence the vehicle had been in the defendant's possession for a short period of time. The only similarity between Bristol and this matter is primarily the fact that both of the subjects charged with possession were not the registered owners of the vehicle in which they were arrested. Watson, 290 S.W.3d at 108. For the reasons described, each of these Watson factors are equally applicable to Rainey and render Bristol wholly unsupportive of his position. Second, Rainey relies on State v. Bowyer, 693 S.W.2d 845 (Mo. App. W.D. 1985), but it is similarly unavailing. In Bowyer, after the defendant was pulled over for speeding, a container of marijuana was found inside the console. Id. at

1. The passenger, who owned the vehicle and was the only one who had access

to it, had asked the defendant to drive. Id. at 846-47. The two did not live together and the defendant had not been in the car in the previous six months. Id. at 846. The passenger testified that only she had access to the car and the defendant did not have possession of the items or knowledge they were in the vehicle. Id. at 846-

1. The court held the State presented no additional circumstances indicative of

possession beyond the presence of the defendant in the vehicle. Id. at 849. Rainey's case is factually distinguishable. He was the sole occupant of the car and had not been asked to drive by the car's alleged owner. And, unlike Bowyer where

26

the marijuana was in the console, the firearm at issue was easily seen against the front edge of Rainey's seat. See id. at 846. Considering the totality of the circumstances—that Rainey was the sole occupant of the car, that the firearm was easily accessible and in close proximity to Rainey's person, that Rainey was visibly nervous during the traffic stop and search, and that Rainey made false statements about the vehicle's owner—a reasonable juror could have found that Rainey had constructive possession over the firearm and that he had knowledge of its presence and control over the same. Thus, sufficient evidence existed to find Rainey guilty beyond a reasonable doubt of unlawful possession of a firearm. Point III is denied. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________ W. DOUGLAS THOMSON, JUDGE All concur.