State v. Anderson

• Decision Date: 20 November 2012
• Docket Number: No. ED 97522.,ED 97522.
• Citation: 386 S.W.3d 186
• Parties: STATE of Missouri, Respondent, v. Shane M. ANDERSON, Appellant.
• Court: Missouri Court of Appeals

386 S.W.3d 186

STATE of Missouri, Respondent,

v.Shane M. ANDERSON, Appellant.

No. ED 97522.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 20, 2012.

Alexa Irene Pearson, Columbia, MO, for appellant.

Chris Koster, Atty. Gen., Jennifer A. Wideman, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The defendant, Shane M. Anderson, appeals the judgment entered upon a jury verdict finding him guilty of felony possession of cocaine and misdemeanor possession of marijuana. Defendant challenges the sufficiency of the evidence to support his conviction of cocaine possession. He does not challenge his conviction for possession of marijuana, which we affirm. Because the State presented insufficient evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that defendant had knowledge of the presence of the cocaine, we reverse that conviction.

Factual and Procedural Background

One day during the summer of 2010, defendant was in the hotel room he rented at the Hannibal Inn. Defendant's nephew was also present in the hotel room. Meanwhile, Officer Jonathan Borgmeyer of the Hannibal Police Department received an anonymous tip that there was a party occurring in Room 133 of the hotel. The tipster reported the smell of marijuana emanating from the room. Officer Borgmeyer responded to the hotel. As he approached the room, he observed the curtain in the window move to the side. He did not smell any marijuana or cocaine. He knocked on the door, and the defendant answered. Officer Borgmeyer introduced himself and asked if he could speak with defendant. Defendant agreed and invited the officer into the room. Officer Borgmeyer advised the defendant that he had received a call about a party and the smell of marijuana coming from the room, and asked defendant for permission to search the room. Defendant consented.

According to Officer Borgmeyer, the layout of defendant's hotel room was that of a common, ordinary hotel room. Upon entering the room, Officer Borgmeyer could see two beds to his right. A nightstand stood in between the beds. Beyond the second bed was a wall, behind which was a bathroom. A counter with a sink was adjacent to the bathroom, on the back wall of the room, straight back from the room door. A shelf was affixed to the wall to the left of the counter and sink. Officer Borgmeyer began his search by walking to the back of the room. There he first found a digital scale on the countertop by the sink. A knife and scissors were next to the scale. Officer Borgmeyer then found a grinder sitting on top of the microwave, which was sitting on the counter. A green leafy substance was present on the scale as well as in the grinder. Officer Borgmeyer believed the substance to be marijuana.

Officer Borgmeyer returned to the front of the room to talk with the defendant. Defendant commented that he smoked a little bit of marijuana, but that he did not do anything else. Officer Borgmeyer asked defendant if he was the only one who lived in the room. Defendant responded that he was, and advised that his nephew was visiting for only a few hours. Officer Borgmeyer placed defendant under arrest, handcuffed him, and left him in the middle of the hotel room, in the custody of Officer Kuhn, who had just arrived on the scene.

Officer Borgmeyer retrieved evidence bags and a digital camera from his car, and then returned to continue his search of the room. He located a second digital scale on the shelf near the microwave and countertop. A green leafy substance was also present on this scale. As before, Officer Borgmeyer believed that the substance was marijuana. Lastly, Officer Borgmeyer found a small translucent plastic straw on the floor by the nightstand, which was between the two beds. The straw was short, about two or three inches in length, and was lying amidst cords on the floor, between the nightstand and the bed closest to the door. Officer Borgmeyer picked up the straw, looked inside, and saw a small amount of a white powdery substance inside the straw. He did not see anything else on the floor by the straw, except for the cords. By the end of his search, Officer Borgmeyer had discovered a grinder and two scales, which were located near each other towards the back of the room, and the plastic straw that was located on the floor between the nightstand and bed. Officer Borgmeyer did not ask defendant about any items he found, and he did not show any of the items to defendant while they were still at the hotel room. Officer Borgmeyer did not question defendant's nephew about any of the items, did not search him, and allowed him to leave.

The officers transported defendant to the police station. Once there, defendant made another remark. According to Officer Borgmeyer, defendant stated: “I don't want to put anything down in case I have to fight this, but there's not much to explain, it's mine.” Officer Kuhn recalled defendant saying something to the effect that “everything there was his and it belonged to him.” Officer Kuhn also heard Officer Borgmeyer ask defendant if the straw was his, and the defendant responded that he had never seen it before. The State adduced few details of events at the station. Officer Borgmeyer testified only that at the time of defendant's statement, the two scales, the grinder, and the straw were on a counter, and that the defendant was with the officers, within “earshot.”

A criminalist at the Missouri State Highway Patrol Crime Lab tested the seized evidence. She determined that the leafy substance was a minute amount of marijuana, weighing two one-hundredths (0.02) of a gram. She determined that the powdery substance on the straw was an indeterminate amount of cocaine. The powdery substance was observable but not weighable.

The State charged defendant with one count of felony possession of a controlled substance (cocaine) and one count of misdemeanor possession of up to 35 grams of marijuana, both in violation of Section 195.202. The case proceeded to trial, and the jury found defendant guilty on both counts. The trial court sentenced defendant as a prior and persistent offender to a term of eight years' imprisonment for possession of cocaine, and a concurrent term of one year in jail for the marijuana possession. Defendant appeals, alleging the trial court erred in overruling his motion for judgment of acquittal and in entering judgment and sentence for cocaine possession. Defendant contends the State failed to present sufficient evidence to prove that he possessed cocaine. ¹

Standard of Review

“When a criminal defendant challenges the sufficiency of the evidence to support a conviction, this Court's review is limited to determining whether the State introduced sufficient evidence at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt.” State v. Bateman, 318 S.W.3d 681, 686–87 (Mo. banc 2010). In making this determination, we accept as true all evidence favorable to the verdict, including all favorable inferences drawn from the evidence. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)(internal quotation omitted); Bateman, 318 S.W.3d at 687. We disregard all inferences contrary to the verdict, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Whalen, 49 S.W.3d at 184 (internal quotation omitted). We may not supply missing evidence or give the State the benefit of unreasonable, speculative or forced inferences. Id.

Discussion

Section 195.202 prohibits a person from possessing or having under his or her control a controlled substance. To sustain a conviction for possession of a controlled substance, the State must prove the following two elements: (1) conscious and intentional possession of the substance, either actual or constructive; and (2) awareness of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992); State v. Tomes, 329 S.W.3d 400, 403 (Mo.App. E.D.2010). The possession prong and the knowledge prong are not entirely independent, in that both require proof of the defendant's knowledge of the presence of the controlled substance. Purlee, 839 S.W.2d at 588;State v. Gonzalez, 235 S.W.3d 20, 26 (Mo.App. S.D.2007). Indeed, the test for possession is whether the defendant “was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it.” State v. Young, 427 S.W.2d 510, 513 (Mo.1968)(internal quotation omitted); State v. Cortez–Figueroa, 855 S.W.2d 431, 440 (Mo.App. W.D.1993). “Possession without knowledge of such possession is not possession in the legal sense of that word.” State v. Burns, 457 S.W.2d 721, 724 (Mo.1970). As a matter of fact, our Missouri Supreme Court once noted that “no case has been found in which the defendant's conviction of illegal possession of narcotics has been sustained where the prosecution has failed to prove, either directly or by inference, that the defendant had knowledge of the presence of the contraband substance.” Id. at 725.

For the reasons that follow, we conclude that the State presented insufficient evidence to prove that defendant had knowledge of the presence of the cocaine. We recognize that knowledge is often not susceptible of direct proof. Gonzalez, 235 S.W.3d at 27. But then, a criminal conviction cannot be based upon probabilities and speculation. Id. A defendant's knowledge of a controlled substance may be reasonably inferred from the defendant's actual possession of that substance. Id. at 26. “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 controlled substance.” ²Purlee, 839 S.W.2d at 588. At a minimum, constructive possession requires evidence that defendant had access to...