State v. Agee

• Decision Date: 25 January 2001
• Docket Number: No. 23341,23341
• Citation: 37 S.W.3d 834
• Parties: (Mo.App. S.D. 2001) State of Missouri, Respondent, v. Clarissa J. Agee, Appellant. 0
• Court: Missouri Court of Appeals

37 S.W.3d 834 (Mo.App. S.D. 2001)

State of Missouri, Respondent, v. Clarissa J. Agee, Appellant.

No. 23341

Missouri Court of Appeals Southern District

01/25/2001

Appeal From: Circuit Court of Greene County, Hon. Don E. Burrell, Jr.

Counsel for Appellant: Craig Johnston

Counsel for Respondent: Stacy L. Anderson

Opinion Summary: None

Prewitt and Garrison, J.J., concur.

Robert S. Barney, Chief Judge

Appellant Clarissa J. Agee was found guilty, following a trial by the court, of possessing pseudoephedrine with intent to manufacture a controlled substance. Section 195.420, RSMo 1994. At trial no oral evidence was presented to the court. The case was submitted to the court on the basis of "joint exhibit number one," consisting of information contained in police reports and a forensic laboratory report.¹ Appellant was sentenced to a two-year term of imprisonment with the court suspending the execution of the sentence and placing her on probation for five years. Appellant now appeals raising one point of trial court error. She contends that the trial court erred in overruling her motions for judgment of acquittal. She maintains that there was insufficient evidence to prove her guilt beyond a reasonable doubt of possession of pseudoephedrine with the intent to manufacture a controlled substance.

"This court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case." State v. Dawson, 985 S.W.2d 941, 946 (Mo.App. 1999). "'We review the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case.'" State v. Howard, 973 S.W.2d 902, 906 (Mo.App. 1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App. 1996)). "In determining whether the evidence is sufficient to support a conviction, we accept as true all reasonable inferences drawn from the evidence and disregard all evidence and inferences to the contrary." Id. "The function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence." Dawson, 985 S.W.2d at 946. "This same standard applies to the court's review of both direct and circumstantial evidence." Id.

On July 16, 1998, two Springfield police officers observed a car travelling east on a Springfield street without a light illuminating the license plate. The officers turned on their warning lights in an attempt to stop the vehicle. The vehicle sped up and turned north around a corner. As the car was turning, the officers observed an object being thrown from the passenger side window of the car. The car then stopped "just north of where the item landed . . . ." The officers approached the car and found that Appellant was the driver and her twelve-year-old daughter was in the passenger seat. Both Appellant and her daughter were handcuffed and the officers retrieved the object--a light brown nylon purse--that had been thrown from the car. Inside of the purse the officers found seven blister packs of pseudoephedrine tablets, containing in total 168 tablets. The blister packs were not in cardboard packaging. When questioned about the tablets, Appellant stated that there was nothing illegal about having them and that Wal-Mart sold them. The officers searched Appellant's vehicle and found a leather and lead sap or "blackjack" under the car radio near the gear shift and a propane tank from a barbecue grill in the trunk. Appellant stated that the propane tank was her father's.

Under section 195.420, RSMo 1994, "[i]t is unlawful for any person to possess chemicals listed in subsection 2 of section 195.400 with the intent to manufacture, compound, convert, produce, process, prepare, test, or otherwise alter that chemical to create a controlled substance . . . ." Pseudoephedrine is a chemical listed under section 195.400.2(20). Therefore, we must determine whether the State presented enough evidence that a reasonable fact finder could find beyond a reasonable doubt: 1) that Appellant possessed pseudoephedrine; and 2) that she did so with the intent to manufacture a controlled substance, in this case methamphetamine. See State v. Morrow, 996 S.W.2d 679, 682 (Mo.App. 1999). We determine that while there was sufficient evidence for a reasonable fact finder to find beyond a reasonable doubt that Appellant possessed the pseudoephedrine, there was insufficient evidence for the fact finder to find that she intended to manufacture methamphetamine.

Possession.

As to possession, the State had the burden to prove that Appellant had actual or constructive possession of the pseudoephedrine. Actual possession of a substance is where the person has the substance on his or her person or within his or her easy reach and convenient control. State v. Booth, 11 S.W.3d 887, 891 (Mo.App. 2000). Constructive possession is where a person has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. Id.; see also State v. Powell, 973 S.W.2d 556, 558-59 (Mo.App. 1998).

Here, the evidence showed that Appellant was operating the vehicle and that an object had been thrown from the vehicle's passenger side. While there was no evidence showing that the officers specifically saw Appellant throw the purse from the window, they clearly saw that the purse was thrown from the vehicle that Appellant was operating. Further, Appellant's daughter was only twelve-years-old. While in this day and age the daughter's young age does not rule out the possibility that she was the one in possession of the pseudoephedrine or that Appellant was oblivious to its presence; we think, nevertheless, that this fact combined with the fact that the vehicle was under the exclusive control of Appellant and stopped almost immediately after the purse had been thrown from the window, denotes a connection between the purse, the vehicle and the operator of the vehicle, thereby supporting the inference that Appellant had constructive control over the purse. See State v. Webster, 754 S.W.2d 12, 12-13 (Mo.App. 1988). As for the pseudoephedrine tablets found in the purse, Officer Edwards wrote in his report that Appellant "started to argue that Wal-Mart sold the items and that there was nothing illegal about owning them." This remark is supportive of the inference that Appellant was aware that the purse contained the pseudoephedrine tablets. Considering the totality of the circumstances, we determine that a rational fact finder could have found beyond a reasonable doubt that Appellant had at least joint possession of the pseudoephedrine. See Booth, 11 S.W.3d at 891; State v. Camerer, 29 S.W.3d 422, 425-26 (Mo.App. 2000); see also State v. Schleicher, 458 S.W.2d 351, 353 (Mo. banc 1970).

Intent to Manufacture.

We now turn to the more difficult question of whether there was enough evidence for a rational fact finder to find that, under the evidence presented, Appellant intended to use the pseudoephedrine to manufacture methamphetamine. The State points out correctly that direct evidence of intent is rarely susceptible to direct proof and, therefore, must generally be established by circumstantial evidence and that the evidence need not be conclusive of guilt, nor must the evidence exclude every hypothesis of innocence. State v. Martin, 882 S.W.2d 768, 770 (Mo.App. 1994).

We observe that "'[a]n 'inference' is a conclusion drawn by reason from facts established by proof.'" Howard, 973 S.W.2d at 906 (quoting Foster, 930 S.W.2d at 64). While reasonable inferences may be drawn from both direct and circumstantial evidence, these inferences must be logical, reasonable, and drawn from established fact. Dawson, 985 S.W.2d at 947; see State v. Friend, 936 S.W.2d 824, 828 (Mo.App. 1996) ("In the absence of proven facts from which it logically follows, an inference lacks the stature of substantial evidence."). In the instant matter, the record reveals that a large number of pseudoephedrine tablets in blister packs were found in the discarded purse. Case law suggests, however, that this factor alone is insufficient to prove intent to manufacture methamphetamine. In State v. Tackett, 12 S.W.3d 332, 334 (Mo.App. 2000), a police detective was tipped off to the fact that some men had purchased twelve boxes of allergy medicine from a Wal-Mart. The men were pulled over and subsequently arrested for violating section 195.420, RSMo 1994. Id. at 335-36. The men stated that they had allergies but the police officers testified that they showed no symptoms of having allergies. Id. at 336. In finding that the officers did not have probable cause to arrest the defendant, the court stated:

the State is essentially contending that people who possess antihistamines in the quantities purchased here, without visible signs of allergies, must be intending to manufacture methamphetamines. We reject this contention and, on the totality of the circumstances, find that the State failed to carry its burden to show that there was probable cause to believe that the respondent had the requisite intent to create...