State v. Berwaldt
| Decision Date | 27 September 2022 |
| Docket Number | WD84329 |
| Parties | STATE OF MISSOURI, Respondent, v. TERRY JOE BERWALDT, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Saline County, Missouri The Honorable Dennis Allen Rolf, Judge
Before: Gary D. Witt, Chief Judge, Presiding, Anthony Rex Gabbert, Judge, and Jeffrey C. Keal, Special Judge
Terry Berwaldt ("Berwaldt") appeals from his conviction in the Circuit Court of Saline County ("trial court"), following a jury trial, of one count of possession of a controlled substance (methamphetamine) section 579.015[1] (Class D felony), and one count of unlawful possession of drug paraphernalia (syringe), section 579.074 (Class A Misdemeanor), after having been found to be a prior offender. On appeal, Berwaldt argues the trial court erred in convicting him on both counts because the State's evidence was insufficient to show that he possessed the controlled substance and drug paraphernalia in that the evidence failed to establish who owned the methamphetamine and syringe found in Berwaldt's bedroom and when Berwaldt had last been in the home in relation to others arrested inside the residence at the time of the execution of the search warrant.[2] Finding no error, we affirm.
Factual Background[3]
On December 7, 2018, the Lafayette County Drug Task Force executed a search warrant on Berwaldt's residence in Waverly, Saline County, Missouri. Officers arrived at Berwaldt's two-story house (consisting of a main floor and a finished basement) early in the morning and found five individuals present: Berwaldt, Ella Rainey ("Rainey"), Josh Gilpin, Corey Gilpin, and Jennifer White ("White"). Berwaldt was located in his pick-up truck that was parked inside the garage of the residence. Rainey was found in the hallway of the residence and Deputy Barker of the Lafayette County Drug Task Force testified that he spoke with Rainey during the search. Rainey stated that her bedroom and Berwaldt's bedroom were both on the main floor of the house. Berwaldt's bedroom was also identified by its hospital-style bed and wheelchair accessible shower in the attached bathroom, as Berwaldt is wheel-chair bound. Josh and Corey Gilpin each had a separate bedroom in the basement of the house, and White did not live at the residence but was there visiting Corey Gilpin.
The State's evidence consisted of the testimony of Deputy Barker and certain exhibits including photographs. Deputy Barker testified that each bedroom in Berwaldt's house was searched, and the items collected from the search were recorded on an inventory list and photographed. Multiple items were collected from Berwaldt's bedroom. A clear bag containing methamphetamine was found in a small area of the couch in Berwaldt's bedroom. Eight large white pills were found in a small black pouch and were later identified as gabapentin, a prescription drug. A loaded syringe was also located in Berwaldt's bedroom. Deputy Barker testified that he found a small, camo pouch in Berwaldt's bedroom that contained a spoon with residue that field-tested positive for methamphetamine.
Deputy Barker initially photographed each room as it appeared when officers arrived, and after the search, he placed the collected items together on the bed to be photographed and labeled. However, Deputy Barker testified that the pre-search photograph he took of Berwaldt's room was accidentally deleted. The photographs admitted at trial showing Berwaldt's bedroom after the search show primarily men's clothing in the closet, and the photographs showing Rainey's bedroom, closet, and bathroom on the same floor as Berwaldt's bedroom show primarily female clothing.
Various items were also collected from other locations in the house. A clear plastic bag of methamphetamine was found on Rainey's person in her bra, and clear baggies were found in Rainey's bedroom nightstand drawer. Josh Gilpin's bedroom and Corey Gilpin's bedroom both contained a "bag of meth," marijuana, baggies, digital scales, and several loaded syringes. Deputy Barker also testified that he observed extensive security features at the residence, including multiple security cameras, live feeds of the outside of the home displayed on a TV in Rainey's bedroom, and numerous cables located in the basement. Deputy Barker testified that, in his experience, extensive security can be an indicator of paranoia among drug users and dealers.
Deputy Barker spoke with Berwaldt at the Saline County Courthouse after the search.[4] Berwaldt confirmed that he lived at the residence and was the owner of the home. Berwaldt also confirmed that his bedroom was located on the first floor and contained the hospital-style bed and bathroom with a wheelchair-accessible shower. Deputy Barker asked Berwaldt if he currently uses methamphetamine, and Berwaldt stated that he currently uses "a teener a week," which Deputy Barker explained is 1.75 grams of methamphetamine.
The jury found Berwaldt guilty of one count of possession of a controlled substance, section 579.015, and one count of unlawful possession of drug paraphernalia, section 579.074. Berwaldt was sentenced to a term of eight years imprisonment on count I and a concurrent term of 90 days in the county jail on count II, both as a prior offender. This appeal follows.
"When reviewing the sufficiency of the evidence to support a conviction and a trial court's denial of a motion for judgment of acquittal, our task is to determine whether sufficient evidence was presented at trial to permit a reasonable fact finder to find the defendant's guilt beyond a reasonable doubt." State v. Glaze, 611 S.W.3d 789, 794 (Mo. App. W.D. 2020). "In a review of whether sufficient evidence existed from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt, this Court accepts as true all the evidence favorable to the verdict, including all favorable inferences properly drawn from the evidence, and disregards all evidence and inferences to the contrary." State v. Cline, 808 S.W.2d 822, 823 (Mo. banc 1991). "This is not an assessment of whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." State v. Zetina-Torres, 482 S.W.3d 801, 806 (Mo. banc 2016) (internal quotations omitted).
Berwaldt argues the trial court erred in convicting him on both counts because insufficient evidence was presented to establish Berwaldt's possession of the controlled substance and drug paraphernalia. "A person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance[.]" Section 579.015.1. As to count II:
A person commits the offense of unlawful possession of drug paraphernalia if he or she knowingly uses, or possesses with intent to use, drug paraphernalia to plant, propagate cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance or an imitation controlled substance in violation of this chapter or chapter 195.
Section 579.074.1. "Possession" or "possessing a controlled substance" is statutorily defined:
[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 or her 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[.]
Section 195.010(38). The same analysis is employed when reviewing the question of whether a defendant possessed drug paraphernalia as when determining whether a defendant had possession of a controlled substance. State v. Goff, 439 S.W.3d 785, 791 (Mo. App. S.D. 2014). To sustain a conviction for possession of a controlled substance, the State must prove conscious and intentional possession of the substance, either actual or constructive, and awareness of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992). "Possession and knowledge may be proved by circumstantial evidence." Zetina-Torres, 482 S.W.3d at 807.
Because Berwaldt did not have a controlled substance or paraphernalia on his person or within easy reach or convenient control when searched, the State argued a theory of constructive possession to the jury. Thus, the State was required to present enough evidence such that a reasonable juror could conclude that although not in actual possession, Berwaldt had 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. Section 195.010(38). In analyzing constructive possession of a controlled substance there is "no precise formula, and we look to the facts of each case in determining if the totality of the circumstances supports a finding of possession." State v. Kerns, 389 S.W.3d 244, 248 (Mo. App. S.D. 2012). "Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge...
To continue reading
Request your trial