State v. Baker, WD
| Citation | 912 S.W.2d 541 |
| Decision Date | 03 October 1995 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Robert L. BAKER, Appellant. 50050. |
| Court | Court of Appeal of Missouri (US) |
Rose M. Wibbenmeyer, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Michelle A. Freund, Assistant Attorney General, Jefferson City, for respondent.
Before KENNEDY, P.J., and SMART and LAURA DENVIR STITH, JJ.
Robert Baker was charged in the Circuit Court of Buchanan County with possession of cocaine, a controlled substance, in violation of section 195.202, RSMo.Cum.Supp.1993. 1 Defendant appeals on the grounds that he was not in possession of any measurable or visible amount of cocaine and that the mere fact the State was able to find the burnt residue of cocaine on a pipe evidences solely prior cocaine use and does not support his conviction for then knowingly and intentionally possessing cocaine.
On November 19, 1993, at approximately 7:00 p.m., Mr. Baker, driving a red Chevy Chevette, stopped in front of an apartment building in St. Joseph, Missouri. Robert Scruggs, a passenger in the vehicle, got out of the car and entered the apartment building. Once inside, Mr. Scruggs was arrested by members of the Buchanan County Drug Strike Force for the possession of crack cocaine.
After taking Mr. Scruggs into custody, additional officers stationed outside the apartment building were given a pre-arranged signal to take all occupants of the vehicle into custody. The officers approached the Chevette and took the defendant, Mr. Baker, and a passenger, Adella Jones, into custody. During a pat-down search of Mr. Baker, Officer Howard discovered what appeared to be a crack pipe. He also found another pipe on the passenger floorboard of the vehicle. Officer Howard then arrested Mr. Baker for possession of drug paraphernalia.
In his report of the arrest, Officer Howard noted the discovery of the two pipes, and made a notation to the laboratory to "test for cocaine residue if possible " (emphasis added). At trial, Officer Howard explained that he simply arrested Mr. Baker for possession of drug paraphernalia, and not for possession of cocaine itself, because he had not found any cocaine in Mr. Baker's possession and he was not sure whether there was sufficient cocaine residue, on either pipe, to be tested.
Mr. Baker was transported to the Law Enforcement Center where he signed a waiver of rights form prior to questioning. In a written statement, Mr. Baker indicated that the officers had found a pipe in his jacket but that:
It was not mine. I had just bought it from a guy on Messanie for $10. I have smoked crack in the past. The last time I smoked was around 4:00 p.m., was when I smoked crack last.
The pipes were sent to the Missouri Highway Patrol for drug testing. Dale Lawrence, of the Missouri State Highway Patrol Crime Laboratory, testified that he did not recall seeing any hard matter within the pipes prior to testing, but he did note the presence of burnt residue on the pipes. When asked whether he was able to weigh the cocaine on the pipe, Officer Lawrence stated, However, Officer Lawrence was able to test the residue by rinsing out the two pipes with a solvent and then testing the solvent wash for the presence of cocaine.
There were no visible cocaine particles in the solvent wash, but, by using chemical color tests, gas chromatography and gas chromatography mass spectrometer tests on the solvent wash, Officer Lawrence determined that the residue he washed out of the pipes was cocaine residue. The State then charged Defendant with possession of a controlled substance. Apparently, and without record explanation, the State later dismissed the charge of possession of drug paraphernalia for which Mr. Baker originally had been arrested.
Defendant moved for a judgment of acquittal at the close of the State's evidence on the basis that the above evidence was insufficient to prove the elements of the crime of possession of a controlled substance under section 195.202, in that the State had failed to prove that he had knowingly and intentionally possessed cocaine. In support, defense counsel argued that, under State v. Smith, 808 S.W.2d 24 (Mo.App.1991), and State v. Polk, 529 S.W.2d 490 (Mo.App.1975), a conviction for possession cannot stand where the amount of the controlled substance found in defendant's possession is so small that it cannot be weighed. In such a case, counsel argued, the tiny amount of drug present simply indicates a prior, and not a present, possession and is insufficient to show a knowing and intelligent possession of a controlled substance.
Defense counsel also argued that section 195.010, which defines the meaning of the term "drug paraphernalia," supports the conclusion that mere possession of an object, such as a pipe, which contains the burnt residue of a drug, does not qualify as possession of the drug itself. In particular, he argued that the statute notes a variety of factors which are relevant in determining whether an object constitutes drug paraphernalia and that proximity of the object to a controlled substance is considered a separate factor from the presence of charred residue of a controlled substance on the object. Self-evidently, he argued, if charred residue constituted the drug itself, then its presence on the object would always constitute presence of the object in proximity to a controlled substance.
The trial court thoughtfully reviewed the cases cited by Defendant and carefully considered the arguments of counsel. He noted that the facts of this case seemed to fit within the exception set out in Smith and Polk, but ultimately decided, particularly in light of the fact that the prosecutor had not had the opportunity to cite opposing cases, that
The jury found Mr. Baker guilty. Defendant again argued in his motion for a new trial that the facts supported only the original charge of possession of drug paraphernalia and that the State simply had not proven its charge of possession of cocaine. The trial judge denied the motion, stating:
And I think the issue is essentially whether residue amounts to possession of a controlled substance. There are really no cases in Missouri covering this issue.
Mr. Euler, you bring up some valid points that are contained in the statute which seem to make some designation, but we will leave it to the Appellate Court to make a review of this issue and determine whether or not residue does, in fact, amount to possession along with paraphernalia, which means basically that those two charges would overlap each other.
The trial judge sentenced Defendant to serve one year in the county jail. Mr. Baker appealed, and we are now asked to decide the legal issue raised below as to whether the presence of cocaine residue too small to measure, but able to be tested through use of laboratory analysis--here, through testing of a solvent wash--is sufficient to sustain a conviction for possession of a controlled substance. We find that, on these facts, it is not.
Mr. Baker claims that the State's evidence was insufficient to convince a reasonable trier of fact that Mr. Baker committed the offense of possession of a controlled substance. When reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, appellate review is limited to a determination whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). All evidence favorable to the State is accepted as true, including all favorable inferences drawn from the evidence. Grim, 854 S.W.2d at 411. All evidence and inferences to the contrary are disregarded unless the inferences are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Id.
To sustain a conviction for possession of a controlled substance, the State must prove that the defendant knowingly and intentionally possessed the controlled substance and knew the nature of that particular substance. State v. Smith, 849 S.W.2d 677, 679 (Mo.App.1993); State v. Spraggins, 839 S.W.2d 599, 603 (Mo.App.1992).
It is conceded by the State that there was no visible or measurable unused or unburnt cocaine in or on the pipe, and that the conviction is solely based on the fact that a burnt residue of cocaine remained from past use of the pipe to burn cocaine. The State argues that this provides an adequate basis to show current knowing possession of cocaine. Defendant argues that, in these circumstances, and under Smith and Polk, supra, knowing and intentional possession of cocaine cannot be inferred merely from the fact that a minuscule, unweighable quantity of cocaine residue was found in the solvent used to wash out the pipe, and a submissible case was not made.
One of the first Missouri cases to address whether a conviction of possession of a controlled substance can be based on the alleged unknowing presence of a trace quantity of the substance in the defendant's actual or constructive possession was State v. Young, 427 S.W.2d 510 (Mo.1968). The defendant in Young argued that h...
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