State v. Botts

• Decision Date: 26 October 2004
• Docket Number: No. WD 62767.,WD 62767.
• Citation: 151 S.W.3d 372
• Parties: STATE of Missouri, Respondent, v. Steven C. BOTTS, Appellant.
• Court: Missouri Court of Appeals

151 S.W.3d 372

STATE of Missouri, Respondent, v. Steven C. BOTTS, Appellant.

No. WD 62767.

Missouri Court of Appeals, Western District.

October 26, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 21, 2004.

Kent Denzel, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty Gen., Deborah Daniels, Andrea K. Spillars, Leslie E. McNamara, Jefferson City, for Respondent.

Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.

ROBERT G. ULRICH, Judge.

Steven C. Botts appeals his conviction following a jury trial of possession of a controlled substance with the intent to distribute, section 195.211, RSMo 2000. He was sentenced as a prior and persistent offender to twenty years imprisonment. Mr. Botts asserts three points on appeal. He claims that (1) the State failed to prove beyond a reasonable doubt that he possessed the marijuana found in the master bedroom during the search of his residence, (2) the trial court committed plain error in permitting the chief of police of Eldon to testify that a confidential informant told him that Mr. Botts was selling marijuana from his home, where he kept the controlled substance, and in allowing a law enforcement officer to state that a person present at the home of Mr. Botts when the search was conducted told him that he did not live there, and (3) the trial court abused its discretion in refusing to allow him to cross examine a law enforcement officer about whether he contacted the officer after the incident and whether the officer asked him to make drug buys for him.

The judgment of conviction is reversed.

Trial Evidence Favorable to the Verdict

Eldon Chief of Police Bob Hurtubise received information on May 6, 2002, that Mr. Botts was selling marijuana from his residence and that he maintained a large quantity of the controlled substance there. Chief Hurtubise obtained a search warrant and with two Eldon police officers and Jonathan Lawrence, then a law enforcement officer narcotics investigator with the Lake [Ozark] Area Narcotics Enforcement Group, executed the warrant the same afternoon. Mr. Botts resided in a trailer located within Eldon. The principal entrance to the trailer provided ingress to the living room, with the contiguous kitchen area identified as being to the north of the living room. A hallway permitted access to the rear of the trailer to the south where the large bedroom was located. A second access door to the trailer was located in the master bedroom. The hallway between the living room/kitchen area and the master bedroom provided access to two other rooms and to the single bathroom. One of the rooms served as a bedroom for Mr. Botts' fourteen-year-old daughter and her female cousin who was residing with Mr. Botts and his daughter when the warrant was executed. The second room served as a laundry room and was also used to store items.

Four law enforcement officers executed the search of the trailer where Mr. Botts lived on May 6, 2002. Chief Hurtubise and Jonathan Lawrence were the State's law enforcement witnesses. Their testimony was that when the law enforcement officers knocked at the entrance to the trailer, Mr. Botts opened the door to permit their entry. Which law enforcement officer first entered the trailer and when the remainder of the officers followed are confusing from the record. Officer Lawrence testified that when he entered the trailer, he looked down the hallway of the trailer and observed a man, necessarily Charlie Noland, on the bed in the master bedroom. Chief Hurtubise testified that after he entered, he observed Charlie Noland either standing or sitting on the couch in the living room. Because the testimony of the two state's witnesses may conflict as to Mr. Noland's location when the officers entered the trailer, Officer Lawrence's testimony about where he saw Mr. Noland upon his entry into the trailer is not favorable to the verdict and is rejected. Significant, however, is that Mr. Noland was in the trailer. Officer Lawrence testified that Charlie Noland told him that he did not live in the trailer. Mr. Botts' daughter and niece were in the bathroom when the law enforcement officers entered the trailer, and his daughter was taking a bath. The two girls were ushered into their bedroom to change, after which, all four persons remained in the living room with Chief Hurtubise while the other officers conducted the search.

A large plastic bag was found in the master bedroom that contained six other plastic bags. Four of the six smaller bags contained marijuana, all of which weighed 161.87 grams. Syringes were found in a black bag located under the bed in the master bedroom and a wooden box containing plant seeds was also found on a television stand in the same bedroom. The chemist did not testify about these items. Clothing was observed in the master bedroom that appeared to belong to a man. A smaller bag containing what may have been marijuana was found outside the trailer window of the bedroom Mr. Botts' daughter and her cousin occupied, but the drug chemist who testified for the prosecution did not testify about this substance either.

Mr. Botts was charged by amended information with possession of a controlled substance with intent to distribute. Following a jury trial, Mr. Botts was convicted of the charge and sentenced as a prior and persistent offender to twenty years imprisonment. This appeal followed.

Point One

Mr. Botts claims as his first point on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to prove beyond a reasonable doubt that he possessed the marijuana found in the residence. He asserts that the marijuana was located in the room used by Mr. Noland and that the evidence failed to prove that he knew of its presence and that he exercised control over it.

Standard of Review

In considering a challenge to the sufficiency of the evidence, the reviewing authority accepts as true all evidence and its reasonable inferences in a light most favorable to the verdict and rejects all contrary evidence and inferences. 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) (citation omitted). A determination is made whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997); State v. Goddard, 34 S.W.3d 436, 438 (Mo.App. W.D.2000). This same standard of review applies when reviewing a motion for a judgment of acquittal. Goddard, 34 S.W.3d at 438.

Discussion

The elements of the offense of possession of marijuana with intent to distribute, section 195.211, RSMo 2000, require that the State prove that Mr. Botts possessed more than five grams of marijuana and that he knew of its presence and illegal nature. § 195.211, RSMo 2000; State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). To sustain a conviction for possession of a controlled substance, the State must prove that Mr. Botts knowingly and intentionally possessed the proscribed substance. Conscious, intentional possession, either actual or constructive, must be established. Barber, 635 S.W.2d at 343. The State must also show that the defendant was aware of the presence and nature of the substances in question, and both possession and knowledge may be proved by circumstantial evidence. Id. If actual possession has not been shown, "constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." Id. (quoting State v. West, 559 S.W.2d 282, 284 (Mo.App.1977)). Although exclusive control of the premises where controlled substances are found raises an inference of possession and control of those substances, if the premises are jointly controlled, some further evidence is necessary to connect the accused with the drugs. Id. at 343-44. "The presence of large quantities of a controlled substance may buttress such an inference if consistent with the totality of circumstances." Id. at 344.

Mr. Botts did not have actual possession of the contraband marijuana when law enforcement authorities found the substance on May 6, 2002. Thus, to convict Mr. Botts of the crime of possessing the marijuana for the purpose of distributing it, the prosecution must have presented sufficient evidence for the jury to find that he constructively possessed the substance. Constructive possession may be shown by circumstantial evidence. State v. Booth, 11 S.W.3d 887, 891 (Mo.App. S.D.2000) (quoting State v. Powell, 973 S.W.2d 556, 558 (Mo.App. W.D.1998)). The question, therefore, is whether sufficient evidence was presented by which a reasonable juror could find beyond a reasonable doubt that Mr. Botts constructively possessed the marijuana found in the master bedroom during the May 6, 2002, search of the trailer. To prove constructive possession, however, the State had to prove that he consciously and intentionally possessed the substance.

The Supreme Court of Missouri addressed constructive possession in State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992), and stated:

[P]roof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the substance was found. Defendant's exclusive control of the premises is enough to raise an inference of possession and control of the substance. Joint control of the premises, however, requires some further evidence or admission connecting the accused with the illegal drugs. It follows that merely being a guest in the...