State v. Bacon

Decision Date11 January 2005
Docket NumberNo. WD 62384.,WD 62384.
PartiesSTATE of Missouri, Respondent, v. Anthony BACON, Appellant.
CourtMissouri Court of Appeals

Michael E. Reardon, Kansas City, MO, for appellant.

Andrea K. Spillars, Jefferson City, MO, for respondent.

Before ELLIS, C.J., BRECKENRIDGE and EDWIN H. SMITH, JJ.

JOSEPH M. ELLIS, Judge.

Anthony Bacon appeals from his conviction by jury of one count of class C felony possession of a controlled substance (more than thirty-five grams of marijuana), § 195.202; one count of attempted manufacture of a controlled substance (hashish), § 195.211; and one count of class C felony possession of a controlled substance (cocaine), § 195.202. Appellant was sentenced to consecutive terms of seven years imprisonment on the first count, fifteen years on the second count, and one year on the third count.

In February 2001, Appellant and his wife purchased a house at 7506 North Sycamore in Kansas City, Missouri. On June 1, 2001, the couple separated, and Appellant's wife and son moved out of the house. By June 15, 2001, two women, Tara King and Lori Klocke, had moved into the house with Appellant.

On June 15, 2001, acting on a tip, detectives with the Kansas City, Missouri, Police Department sent a confidential informant into Appellant's home to attempt to purchase narcotics. The informant purchased a 0.1 gram rock of crack cocaine from someone inside the house.

On June 19, 2001, one of the detectives involved in the June 15, 2001 operation applied for a warrant to search the house at 7506 North Sycamore. In the detective's affidavit, she described the drug purchase that had occurred on June 15 and noted that the confidential informant had stated that she had seen the occupants of the residence armed with a handgun in the past. After reviewing the application, the Circuit Court of Clay County issued a no-knock warrant allowing the police to search the home at 7506 North Sycamore for cocaine; firearms; U.S. currency in close proximity to narcotics; the two twenty dollar bills that had been used by the confidential informant to purchase the crack cocaine; narcotics paraphernalia; any items used in the preparation, packaging or distribution of cocaine; documents related to drug trafficking; and indicia of occupancy, residency, ownership and/or control over the premises.

The search warrant was executed on June 19, 2001, by the police department's Tactical Squad and Gang Squad. Members of the tactical squad broke the glass storm door and then used a ram to force open the front door to the house. Prior to entering, officers detonated a "distraction device" in the living room. As he entered the house and made his way through it, Detective James Svoboda saw Appellant and Lori Klocke standing in the kitchen and ordered them to get down on the ground and place their hands on their heads. Both complied with those orders. Shortly thereafter, officers handcuffed Appellant and Klocke and took them outside.

After officers were satisfied that the premises were secure, they conducted a search of the house. A piece of a beige, rock-like substance the size of a small pebble was found on the floor of the kitchen along the southeast wall. Five to ten smaller pieces of the substance were recovered from the floor of the kitchen underneath the table. Lab analysis later revealed the substance to be 0.1 grams of cocaine base.

In the garage, officers found four bags of a leafy, green substance, later determined to be 2,100 grams of marijuana in a cardboard box. In another cardboard box, they found three gallon-sized jars containing a leafy, green substance and a liquid. That substance was also determined to be marijuana.

In the master bedroom officers found a wallet containing Appellant's driver's license on the top of a dresser next to the bed. In a cabinet by the bed, officers recovered a .357 caliber handgun that was registered to Appellant. In the master bathroom, on the counter next to the sink, officers recovered a small, round tin containing a leafy, green substance, later found to be 20 grams of marijuana.

In an attic space accessed through a panel in the wall of the master closet, officers recovered a bag containing a leafy green substance, later determined to be 160 grams of marijuana, under a floorboard.

Appellant was subsequently charged by information with class B felony possession of a controlled substance with the intent to distribute related to the marijuana recovered in the search. He was charged with one count of class B felony manufacturing of a controlled substance based upon the jars containing marijuana and the clear liquid, which the information asserted was an attempt at manufacturing hashish. Finally, Appellant was charged with one count of class C felony possession of a controlled substance with regard to the cocaine base recovered in the kitchen.

Appellant was tried by jury on November 4 and 5, 2002. The jury convicted Appellant of two counts of class C felony possession of a controlled substance related to the marijuana and cocaine found in the home and of one count of class B felony attempted manufacture of hashish related to the gallon jars containing marijuana and a liquid. Appellant was sentenced to consecutive terms of seven years imprisonment on the marijuana possession count, fifteen years on the attempted manufacture of hashish count, and one year on the cocaine possession count.

In his first point, Appellant contends that his convictions are not supported by sufficient evidence that he possessed any of the drugs found in the house. Appellant argues that the State failed to prove that he had actual or constructive possession of any of the various narcotics uncovered during the search.

"When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted 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. Chavez, 128 S.W.3d 569, 573 (Mo.App. W.D.2004). "[T]he function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence." State v. Mann, 129 S.W.3d 462, 467 (Mo.App. S.D.2004) (citing State v. Agee, 37 S.W.3d 834, 836 (Mo.App. S.D.2001)). "In making that determination, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence and inferences to the contrary." Chavez, 128 S.W.3d at 573.

In assessing the sufficiency of the evidence to support Appellant's convictions, we must analyze each of the counts against him separately to determine whether sufficient evidence was presented to support that conviction. We first consider whether the evidence sufficiently supported Appellant's conviction for possession of over 35 grams of marijuana.

Possession or control of more than 35 grams of marijuana, a controlled substance, is a class C felony under § 195.202. "`In order to establish possession, the State must show (1) a conscious and intentional possession of a controlled substance, either actual or constructive, and (2) an awareness of the presence and nature of the substance.'" Id. Both possession and awareness may be established through circumstantial evidence. State v. Foulks, 72 S.W.3d 322, 324 (Mo.App. S.D.2002).

"`Actual possession of a substance is where the person has the substance on his person or within his easy reach and convenient control.'" Chavez, 128 S.W.3d at 574 (quoting State v. Rollett, 80 S.W.3d 514, 521 (Mo.App. W.D.2002)). In the case at bar, the evidence did not establish that Appellant was in actual possession of any of the controlled substances found in the house.

Accordingly, we must determine whether the State sufficiently demonstrated that Appellant had constructive possession of the various controlled substances. "`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. (quoting Rollett, 80 S.W.3d at 521). "Constructive possession requires, at a minimum, evidence that Defendant had access to and control over the premises where the drugs were found." State v. Morris, 41 S.W.3d 494, 497 (Mo.App. E.D.2000).

"Exclusive possession of the premises raises an inference of knowledge and control." State v. Hendrix, 81 S.W.3d 79, 83 (Mo.App. W.D.2002). However, where the defendant does not have exclusive control over the premises, "[t]he mere presence of the accused on shared premises where contraband is found is not enough circumstantial evidence to show ownership or possession." State v. Kimberley, 103 S.W.3d 850, 858 (Mo.App. W.D.2003). "Where the defendant shares possession of the premises with others, as was the case here, additional evidence of some incriminating circumstances must also be presented to permit the inference of knowledge and control over the substance." Hendrix, 81 S.W.3d at 83. Some of the types of additional evidence that may suffice to support a conviction where there is joint control of the premises are "routine access to an area where such substances are kept, the presence of large quantifies of the substance at the scene where appellant is arrested, admissions of the accused, ... being in close proximity to drugs or drug paraphenalia in plain view of the police, [and the] mixture of defendant's personal belongings with the drugs." Morris, 41 S.W.3d at 497 (internal citations omitted). "The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proven." Foulks, 72 S.W.3d at 325.

With regard to the marijuana found in the tin in the master bathroom, the evidence was...

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  • State v. Taylor
    • United States
    • Missouri Court of Appeals
    • 13 Febrero 2007
    ...on his person or within easy reach and convenient control. Section 195.010(34) RSMo. (Supp.2005); MAI-CR3d 325.02; State v. Bacon, 156 S.W.3d 372, 377 (Mo.App. W.D. 2005). A person who is not in actual possession has constructive possession if he has the power and intention at a given time ......
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