State v. Booth

• Decision Date: 24 February 2000
• Citation: 11 S.W.3d 887
• Parties: (Mo.App S.D. 2000) State of Missouri, Respondent, v. Jack L. Booth, Appellant. 22763 0
• Court: Missouri Court of Appeals

11 S.W.3d 887 (Mo.App S.D. 2000)

State of Missouri, Respondent, v. Jack L. Booth, Appellant.

22763

Missouri Court of Appeals Southern District

02/24/2000

Appeal From: Circuit Court of Greene County, Hon. Patrick Deaton

Counsel for Appellant: Craig A. Johnston

Counsel for Respondent: Catherine Chatman

Opinion Summary: None

Garrison, C.J., and Prewitt, J., concur.

Robert S. Barney, Judge

A jury found Jack Lynn Booth ("Defendant") guilty of the Class B felony of possession of a controlled substance with intent to distribute, section 195.211, RSMo 1994. In keeping with the jury recommendation, Defendant was sentenced to eight years imprisonment. Defendant Appeals.

In his first point, Defendant posits trial court error in "overruling [Defendant's] motions for judgment of acquittal and in sentencing him upon his conviction . . . because such rulings deprived [Defendant] of his right to due process under the United States Constitution, 5th and 14th Amendments, and the Missouri Constitution, Article I, Section 10 . . . ." Defendant complains that the State did not present sufficient evidence to prove beyond a reasonable doubt "that [Defendant] consciously and intentionally possessed eight plastic baggies of methamphetamine . . .; that he had an awareness of the drug's presence and nature; or that the drug was under his conscious control . . . ." In his second point, Defendant asseverates that the trial court committed plain error in allowing a prospective defense witness, Arlin Graves, to invoke his privilege against self-incrimination and not testify "in that Graves' proffered testimony was not incriminating . . . [and] there was no real danger of incrimination; the court did not determine whether a narrower privilege would suffice to protect Graves . . .; and Graves waived his [privilege against] self-incrimination by telling [Defense Counsel] he had seen [a third party] in possession of the methamphetamine in question . . . ."

"In determining the sufficiency of the evidence, all evidence and inferences reasonably drawn from the evidence are viewed in the light most favorable to the verdict, and contrary evidence and inferences are disregarded." State v. Powell, 973 S.W.2d 556, 558 (Mo.App. 1998). "Review of the sufficiency of the evidence is limited to determination of whether the evidence was sufficient for reasonable persons to have found the defendant guilty as charged beyond a reasonable doubt." Id.

Viewing the evidence in such a manner, we find that at or about 11:35 p.m. the evening of March 26, 1997, Officer Darren Wilkins of the Springfield Police Department observed a pick-up truck traveling north on Kansas Expressway in Springfield with it's reverse lights illuminated. Officer Wilkins pulled the vehicle over around the 2800 block of Kansas Expressway. In the pick-up were two men: Defendant, who was driving, and a passenger, James Koonce. Officer Wilkins approached the vehicle and noticed a strong odor of ether. The officer also noticed a "boot knife" above the rear view mirror, and asked the two men to step out of the truck for safety reasons. Officer Wilkins asked Defendant for his driver's license and Defendant informed the officer that it was revoked. Officer Wilkins confirmed, through the dispatch center, that the license was indeed revoked. Officer Wilkins then placed Defendant under arrest and searched him. Pursuant to the search, the officer found a syringe, two condoms, some "Zigzag" rolling papers, a small pair of pliers, a pocket knife and a "little weight," in Defendant's left jacket pocket.¹

During the traffic stop, Officer Wilkins was backed-up by Officer Darren Whisnant. Officer Whisnant went to the passenger side of the vehicle while Officer Wilkins was with the driver, and conducted a pat down search of Koonce. During the search, Koonce dropped a fifty-dollar bill. While looking down at the bill, Officer Whisnant observed a small baggie of white powder on the ground. Whisnant arrested and handcuffed Koonce. The powder was later determined to be methamphetamine.

A canine officer, Phillip Yarnell, was contacted and responded to the scene with his dog. The dog showed a "positive hit" on the left side of the pickup truck. A search uncovered a small glass jar wrapped in black tape located in the truck's toolbox that spanned the width of the truck bed directly behind the cab. The jar was located in the left, or driver's, side of the toolbox. Inside the jar were eight individually wrapped plastic baggies, filled with what was later determined to be a total of 22.56 grams of methamphetamine. The search also revealed a green canvas bag containing the following items: pipes; a "nursing drug handbook"; and a small box containing rolling papers, a plastic rolling device, a "roach" holder, and a "small aluminum weight."

Later in the evening, Defendant waived his Miranda rights and told Officer Wilkins that the pick-up truck was his but that the license plates were not registered in his name because his license was revoked. Defendant also showed Officer Wilkins the title to the pick-up (Defendant had the title in his wallet) to show that the title had been signed over to Defendant.

Also later that evening, Officer Whisnant conducted a further search of Koonce at the Springfield City Jail. During the search the officer located two additional baggies containing a total of 1.59 grams of methamphetamine and another baggie containing eight pills.

At trial, the trial court overruled Defendant's motion for judgment of acquittal at the close of all of the evidence. The trial court also denied Defendant's motion for new trial. I.

As noted above, Defendant complains in his first point that the State did not present sufficient evidence to prove beyond a reasonable doubt "that [Defendant] consciously and intentionally possessed eight plastic baggies of methamphetamine . . .; that he had an awareness of the drug's presence and nature; or that the drug was under his conscious control . . . ."

"To sustain a conviction for possession of a controlled substance with or without intent to distribute, the State must prove (1) conscious and intentional possession of the substance, either actual or constructive, and (2) awareness of the presence and nature of this substance." Powell, 973 S.W.2d at 558. "Both possession and knowledge may be proved by circumstantial evidence." State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). "The State is not required to show actual, physical possession of the substance to establish possession, but may show constructive possession by circumstantial evidence." Powell, 973 S.W.2d at 558.

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.

Section 195.010(33), RSMo 1994. "A defendant who has exclusive control of property is deemed to have possession and control of any substance found on the property." Yahne v. State, 943 S.W.2d 741, 745 (Mo.App. 1997). However, "[p]ossession without knowledge of such possession is not possession in the legal sense of that word." State v. Mercado, 887 S.W.2d 688, 692 (Mo.App. 1994). "Since our society recognizes the varied use of automobiles, the exclusive possession of premises rule has been modified when automobiles are involved because of 'the reality of the contemporary use of the automobile as a means of social accommodation.'" State v. Allen, 744 S.W.2d 865, 868 (Mo.App. 1988)(quoting State v. Bowyer, 693 S.W.2d 845, 848 (Mo.App. 1985)). "In the case of automobiles the full effect of [the exclusive possession] rule is tempered by evidence of equal access by persons, other than the owner, to the vehicle." Bowyer, 693 S.W.2d at 848. "In cases where there is joint control, a defendant is still deemed to have possession and control where there is additional evidence connecting him with the controlled substance." Yahne, 943 S.W.2d at 745; see also Powell, 973 S.W.2d at 559.Defendant claims that he and Koonce jointly controlled the toolbox in the back of his truck and that there were not sufficient facts presented to "buttress an inference that [Defendant's] presence in and ownership of the truck, along with his other actions that evening, demonstrated knowledge of the methamphetamine that was found . . . , an awareness of its presence, as well as conscious and intentional control over it." We disagree.

First, and most importantly, Defendant owned the truck in question. While there was a passenger in the cab of the vehicle, there was no evidence presented that Koonce had access to or control of the toolbox in the back of the truck and there was certainly no evidence that the access was equal. Defendant rallies a number of cases in an attempt to aid his cause. However, all of the cases relied on by Defendant concern situations where the defendant was driving a car he or she did not own and to which he did not have regular access. There was no evidence presented that Koonce (or anyone else) used the truck, made decisions concerning the truck or was a frequent passenger in the truck.

Further, even if we assume that others had access to the toolbox, Defendant, as the owner, certainly also had access and "a defendant's access to the area in which drugs were found is an incriminating fact which is not destroyed by the fact that another also had access to the area." State v. Keller, 870 S.W.2d 255, 260 (Mo.App. 1994). It is also significant that the methamphetamine in the toolbox was located on the driver's side. While it is true that "proximity to the contraband, alone, even as to a substance in plain sight, [does not] tend to prove ownership or possession as among several persons who share the premises," Bowyer, 693 S.W.2d at 847; it is...