State Of Mo. v. Lee Kopp

Citation325 S.W.3d 466
Decision Date21 December 2010
Docket NumberNo. SD 29987.,SD 29987.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James Lee KOPP, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

OPINION TEXT STARTS HERE

Margaret M. Johnston, Columbia, MO, for Appellant.

Chris Koster, Attorney General, and John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.

DON E. BURRELL, Judge.

James Lee Kopp (Defendant) was convicted after a jury trial of the class C felony of possession of a controlled substance (methamphetamine). See section 195.202. 1 Defendant now appeals his conviction, asserting two points: 1) that the trial court erred by denying his motion for judgment of acquittal because the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that Defendant knowingly possessed the methamphetamine; and 2) that the trial court plainly erred by admitting into evidence the syringe in which the methamphetamine was found because the search that led to its discovery was unlawful. Finding merit in Defendant's first point, we reverse his conviction and order his discharge.

Standard of Review

Defendant's specific assertion on appeal is “that the evidence was insufficient to establish beyond a reasonable doubt that [Defendant] had knowledge of the presence and nature of the unweighable, invisible residue inside the capped syringe that [Defendant] picked up from the kitchen counter in someone else's house.” 2 In reviewing a sufficiency of the evidence challenge, we must determine whether “there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We “view the evidence in the light most favorable to the verdict and give the state the benefit of all reasonable inferences.” State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). Inferences contrary to the verdict are disregarded “unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). However, the State does not get ‘the benefit of unreasonable, speculative or forced inferences.’ State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).

Facts

Viewed in the light most favorable to the verdict, the evidence demonstrated that on April 22, 2008, a search warrant was executed at Paul Barker's Butler County residence. The warrant allowed the police to search for methamphetamine and evidence related to its manufacture. Upon arriving at Mr. Barker's residence, the officers announced, “Police search warrant,” and one of them tried unsuccessfully to kick open the door. An individual inside the residence, Michael Sparkman, opened the door. 3 Mr. Barker was not at home. His adult son, Gregg Barker, was in the garage when he was found by officers and taken back into the living room, where Defendant and his 14-year-old daughter were located. The officers ordered the three adults (Gregg Barker, Defendant and Sparkman) to get down on the floor. The officers then conducted a “pat-down” search on each of them. Defendant's minor child was allowed to remain seated on the couch and was not searched.

Missouri State Highway Patrol Sergeant Kevin Glaser searched Defendant. While patting Defendant down, Sergeant Glaser asked Defendant if he had any weapons on his person. Defendant replied that he had “a needle or a point ... in his pants pocket.” Sergeant Glaser viewed the needle or point “as a weapon” and removed a syringe with a capped needle from Defendant's pocket. 4 The syringe was later sent to the “SEMO Crime Lab” for analysis.

A forensic drug chemist with the lab, Amie Nix, analyzed the syringe by rinsing it and testing the contents of that rinse. She was able to determine by that process that the syringe contained methamphetamine residue, but indicated that the residue was not visible and had no measurable weight. Ms. Nix testified that methamphetamine is a schedule II controlled substance. Defendant testified in his own defense, but made no admissions that were helpful to the State. 5

Defendant preserved his challenge to the sufficiency of the evidence by including it in his motions for judgment of acquittal and post-trial motion for a new trial.

Analysis

Section 195.202 provides, absent certain express statutory exceptions not applicable here, that “it is unlawful for any person to possess or have under his control a controlled substance.” [A] person, with knowledge of the presence and nature of a substance, has actual or constructive possession of the substance.” Section 195.010(34) RSMo, Cum.Supp.2006. “In order to sustain a conviction for possession of a controlled substance, the State must show (1) that the defendant consciously and intentionally possessed the substance; and (2) the defendant was aware of the presence and nature of the substance.” State v. Breese, 250 S.W.3d 413, 420 (Mo.App. S.D.2008) (citing State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992)).

Defendant argues that the evidence presented at his trial was insufficient to prove that he knew of the presence and nature of the controlled substance because other facts that might prove his knowledge were not present and “the methamphetamine [ ] was invisible and unweighable.”

Concerning quantity, “Missouri's drug statutes do not establish a minimum amount necessary to support a conviction for possession of a controlled substance.” Breese, 250 S.W.3d at 422 (citing State v. Taylor, 216 S.W.3d 187, 192 (Mo.App. E.D.2007)). Although the amount in a given case may be small, “the focus is not just on the amount of the drug involved, but, based on all of the surrounding circumstances, whether the defendant knowingly possessed the drug.” Breese, 250 S.W.3d at 422.

The visibility of a drug is a factor that supports an inference that a defendant who saw it knew of its presence and nature. In Breese, “a white, powdery substance was visible on the scale and present in an amount sufficient to allow [the deputy] to field test it. If the powder was visible to [the deputy] it would also have been visible to [the d]efendant.” Id. However, the invisibility of a drug does not necessarily preclude knowing possession. In State v. McKelvey, 129 S.W.3d 456 (Mo.App. S.D.2004), the contraband was “a small piece of cotton weighing .01 grams that contained unmeasurable amounts of methamphetamine.” Id. at 458. The court did not limit its sufficiency analysis to whether the substance could be seen or weighed. Instead, it stated:

The test is not whether the drug is visible or measurable, although these facts can be used to show a defendant did not intentionally, knowingly, and consciously possess the substance. The test is whether the substance can be identified by chemical analysis as a controlled substance regardless of quantity. If the state can demonstrate that a substance is in fact a controlled substance, then it must also show that a defendant intentionally, knowingly, and consciously possessed it.

Id. at 460-61 (emphasis in original).

As a result, an analysis of whether sufficient evidence supports an inference that a particular defendant knew of the presence and nature of a controlled substance is fact-intensive and case-specific. In Breese, we noted that facts other than the drug's visible residue sufficiently demonstrated the defendant's knowledge of the presence and nature of the controlled substance he had been charged with possessing.

[The d]efendant first denied that the bag (and therefore the scale within) was his, next admitted that it did belong to him, and finally stated that his sister was the person who had packed the bag. [The d]efendant admitted that he had been using methamphetamine and that he was high when [the deputy] conducted his search. Perhaps more tellingly, [the d]efendant tells the officer he is not selling any methamphetamine when [the deputy] had not even mentioned that possibility. [The d]efendant also admits that he had actual possession of the bag.

250 S.W.3d at 422 (emphasis in original).

Evidence of knowledge has been held sufficient in other cases where the controlled substance was visible in some manner and other facts also demonstrated knowledge. See, e.g., State v. Smith, 808 S.W.2d 24 (Mo.App. E.D.1991), and State v. Mayabb, 43 S.W.3d 429 (Mo.App. S.D.2001). In Smith,

[t]he syringe with the cocaine residue was found in defendant's front shirt pocket. The residue on the inside of the syringe was visible. Defendant was therefore in actual physical possession, as opposed to constructive possession, of the trace amount of the cocaine. In addition, defendant made two statements which indicated that he was aware of the presence and character of the substance. First, his statement that he had a “hit” of cocaine at 4:00 p.m. raises the inference that the syringe in question was used for that purpose. Second, his statement that there was nothing in the syringe raises the inference that he knew that there had been cocaine in it, at least at 4:00 in the afternoon. These statements by defendant also negate his argument on appeal that he didn't have knowledge of the cocaine's presence because it was only “left over” in the syringe and because he told the officer the syringe was empty.

808 S.W.2d at 26 (emphasis added). Mayabb also involved methamphetamine that was too small to be measured-but still visible as residue-and testimony by a third-party concerning the defendant's possession of it. 43 S.W.3d at 431-32.

A visible trace of methamphetamine was found on the ink barrel retrieved from [the d]efendant's pocket. In addition, two straws, an ink barrel, two plastic bag corners, a mirror, an art knife and a cigarette lighter were found in [the d]efendant's bedroom, an area over which she exercised...

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  • People v. Smith
    • United States
    • New York Supreme Court Appellate Division
    • November 18, 2021
    ...Ann Stat § 579.015 [1] [West 2016] [transferred from Mo Ann Stat § 195.202 ]), with no minimum drug quantity required (see State v. Kopp, 325 S.W.3d 466, 468 [Mo. Ct. App. 2010] ). Although criminal possession of a controlled substance is, most often, a felony in New York (see Penal Law §§ ......
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    ...Ann Stat § 579.015 [1] [West 2016] [transferred from Mo Ann Stat § 195.202]), with no minimum drug quantity required (see State v Kopp, 325 S.W.3d 466, 468 [Mo. Ct App 2010]). Although criminal possession of a controlled substance is, most often, a felony in New York (see Penal Law §§ 220.2......
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    ...a drug is a factor that supports an inference that a defendant who saw the residue knew of its presence and nature. State v. Kopp, 325 S.W.3d 466, 469 (Mo.App. S.D.2010). If the residue was visible to Officer Garrett and the laboratory analyst, it would have been visible to the defendant. I......
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