State v. Alejandro Franco Amador

• Decision Date: 05 March 2002
• Docket Number: WD59506
• Citation: 83 S.W.3d 555
• Parties: State of Missouri, Respondent, v. Alejandro Franco Amador, Appellant. WD59506 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

State of Missouri, Respondent v Alejandro Franco Amador, Appellant

WD59506

Missouri Court of Appeals Western District

03/05/2002

Appeal From: Circuit Court of Callaway County, Hon. Eugene Hamilton, Jr.

Counsel for Appellant: Kent Denzel

Counsel for Respondent: John M. Morris, III

Opinion Summary:

Alejandro Franco Amador appeals from his conviction and sentence, following a jury trial, for second-degree drug trafficking, section 195.223, RSMo 2000. REVERSED.

Division holds: There was insufficient evidence to prove that Amador constructively possessed methamphetamine.

Spinden, C.J., and Ellis, J., concur.

Harold L. Lowenstein, Judge

Appellant, Alejandro Franco Amador, appeals from his conviction and sentence, following a jury trial, for second degree drug trafficking, section 195.223, RSMo 2000.¹ Amador was sentenced to ten years' imprisonment. Because this court finds there was insufficient evidence to prove the defendant constructively possessed methamphetamine, the judgment of the trial court is reversed.Factual and Procedural History

The facts are viewed in the light most favorable to the verdict. State v. Young, 42 S.W.3d 729, 733 (Mo. App. 2001). Alejandro is from Mexico, his entry and stay in the United States are illegal. He worked in various places and was living in Phoenix, Arizona, when his brother, who lived in Atlanta, Georgia, told him he could find construction work in Atlanta. Alejandro (hereafter Alejandro or the defendant) decided to look for a ride to Atlanta.

While in Phoenix, Alejandro met Jose Efrain Amador² in a convenience store. Alejandro told Jose that he wanted to go to Atlanta and Jose offered him a ride. Alejandro agreed to pay Jose $400 for the ride to Atlanta but Jose told him if he did some of the driving Jose would charge him only $200 or $300. Alejandro only had approximately $35, however, so Jose told him he could pay him after he worked and earned some money.

On March 30, 2000, the defendant, Alejandro, was driving Jose's car on highway I-70 in Callaway County. Corporal Rex Scism was just completing a traffic stop when he saw Jose's car change lanes without signaling. Corporal Scism turned his lights and siren on and stopped the vehicle.

When Corporal Scism approached the driver's window of the car, he smelled a strong odor of air freshener and spices. Corporal Scism also noticed that Alejandro and Jose both seemed extremely nervous. Corporal Scism asked Alejandro to step out of the vehicle and asked him for his driver's license. Alejandro showed Corporal Scism an Oregon identification card. Alejandro had very limited English, but was able to tell Corporal Scism that he was coming from Kansas and going to Georgia. He also told Corporal Scism that Jose owned the car. Corporal Scism gave Alejandro a warning for changing lanes without signaling.

Based upon the nervousness of Alejandro and Jose, and the strong odor of air freshener and spices, Corporal Scism asked Jose for consent to search his vehicle. Jose consented to the search. Scism searched the trunk of the car. When he pulled out the fabric that lines the inner fenders within the trunk, he found a large amount of pepper, approximately one to two inches deep, poured into the rear fenders. Corporal Scism also found a roll of duct tape on the front passenger seat floorboard. When he went to search the back seat area of the car, he noticed that a portion of the backrest was not flush against the trim and it looked as if it had been tampered with. Corporal Scism removed the back seat cushion and found more pepper poured under the cushions. He also found three bundles of drugs wrapped in duct tape and encased in white plastic bags with more spices and pepper. The bundles contained a total of 1,113.08 grams of methamphetamine.

After Corporal Scism discovered the bundles of methamphetamine, he drew his gun and ordered Alejandro and Jose to lie on the ground, as he walked backwards towards his patrol car to retrieve a second set of handcuffs. As Corporal Scism began to back up, Alejandro and Jose both stood up and ran in different directions. Alejandro ran across all four lanes of the highway and Jose started running up a hill along the highway. Corporal Scism began to chase Jose and then decided he should not leave both of the cars and the contraband unsecure. Instead, Corporal Scism called for backup and a manhunt ensued. Alejandro was arrested the next morning at a convenience store near Kingdom City. After a jury trial, Alejandro was convicted of second degree drug trafficking, section 195.223, and sentenced to ten years' imprisonment. Alejandro appeals. I.

Alejandro argues in his sole point on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and in entering a judgment of guilty for second degree drug trafficking in that there was insufficient evidence to establish beyond a reasonable doubt that Alejandro possessed a controlled substance.

In considering a challenge to the sufficiency of the evidence, this court accepts as true all evidence and its inferences in a light most favorable to the verdict, and rejects all contrary evidence and inferences. State v. Goddard, 34 S.W.3d 436, 438 (Mo. App. 2000) (citing State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993)). "'The function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence."' State v. Agee, 37 S.W.3d 834, 836 (Mo. App. 2001) (quoting State v. Dawson, 985 S.W.2d 941, 946 (Mo. App. 1999)). This court is charged with the responsibility of determining whether all of the evidence, direct and circumstantial, is sufficient to provide any rational juror with proof beyond a reasonable doubt of each of the elements of the crime charged. State v. Butler, 24 S.W.3d 21, 48 (Mo. App. 2000).

Alejandro was charged with second-degree drug trafficking under section 195.223.9(3) which states:

9. A person commits the crime of trafficking drugs in the second degree if, except as authorized by sections 195.005 to 195.425, he possesses or has under his control, purchases or attempts to purchase, or brings into this state more than thirty grams of any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, isomers and salts of its isomers; phenmetrazine and its salts; or methylphenidate. Violations of this subsection or attempts to violate this subsection shall be punished as follows:

(3) If the quantity involved is four hundred fifty grams or more, the person shall be guilty of a class A felony and the term of imprisonment shall be served without probation or parole.

The element of second degree drug trafficking at issue in this case is possession. Section 195.010(32) defines "possessed" or "possessing a controlled substance" as follows:

[A] person, with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession may also be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint[.]

"Where there is joint possession, the state 'must prove additional circumstances to...