State v. Bristol
| Decision Date | 28 February 2003 |
| Docket Number | No. WD 60470.,WD 60470. |
| Citation | 98 S.W.3d 107 |
| Parties | STATE of Missouri, Respondent, v. Kirbun G. BRISTOL, Appellant. |
| Court | Missouri Court of Appeals |
Craig Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Richard Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before ELLIS, C.J., HOWARD and HARDWICK, JJ.
Kirbun Bristol was convicted of possession of a controlled substance, § 195.202 RSMo 2000, and driving while his license was suspended, revoked or canceled, § 302.321. On appeal, he challenges the sufficiency of the evidence to support his convictions and claims the trial court erred in admitting evidence of his driving record and failing to grant a mistrial when the State improperly personalized its closing argument. We reverse in part and affirm in part.
On March 8, 2000, State Troopers Brian Hagerty and Trayton Pitts pulled over a vehicle for committing traffic violations on Interstate 70 in Lafayette County. The driver of the vehicle, Kirbun Bristol, identified himself to the Troopers. Neither Bristol nor the other two occupants of the vehicle were able to provide a driver's license or other identification documents. The other two occupants initially gave false names but were eventually identified. Based on computer searches, the Troopers learned that Bristol's driver's license had been revoked and the other two occupants had outstanding warrants. All three men were arrested.
While Trooper Pitts handled the arrests, Hagerty and his canine unit searched the vehicle. The canine indicated the presence of controlled substances in three locations: (1) near the floorboard between the driver's seat and the console to the right of the driver; (2)under the driver's seat; and (3) behind the driver's side passenger door between the back bench seat and the side of the vehicle.
Standing outside the vehicle and using a flashlight, Hagerty looked "well under the [driver's] seat" and saw the corner of a plastic baggie wedged between the center console and the driver's seat. He also saw a metal pipe containing a filter and burnt residue under the front of the driver's seat, near the seat adjustment controls. Hagerty saw pieces of a "blunt cigar" — a cigar filled with marijuana — between the back seat and the back door on the driver's side of the vehicle. He testified at trial that none of these items were in "plain view."
Hagerty summoned Pitts to recover the evidence found in the vehicle. When Pitts sat down in the driver's seat, he "caught" the corner of a plastic bag between the seat and the console. He pulled the bag out and found that it contained five pieces of crack cocaine. Pitts also recovered the homemade metal pipe found under the driver's seat and the marijuana blunt found between the back seat and back driver's side door.
Subsequent investigation revealed Bristol did not own the vehicle. He had borrowed it the night before and was to have returned it to the owner on the day of his arrest.
Bristol was charged for possession of a controlled substance, crack cocaine, with intent to distribute, deliver, or sell in violation of Section 195.211, and with driving while his license was suspended, revoked or canceled in violation of Section 302.321. At trial, over objection by defense counsel, a certified copy of Bristol's complete driving record was admitted into evidence. The record revealed that Bristol's driver's license was under four different active revocations or suspensions at the time of his arrest, and that he had been twice arrested for driving while suspended in November 1999 and pled guilty to one of those offenses on January 8, 2000.
The jury convicted Bristol of the lesserincluded offense of possession of a controlled substance, § 195.202, and of driving while his license was canceled, suspended, or revoked. The court followed the recommendation of the jury and imposed a $250 fine and three-month sentence on the possession charge, to be served concurrently with a twelve-month term for driving while revoked. Bristol appeals.
Bristol challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance, § 195.202.1. He argues the evidence does not permit a reasonable inference that he had knowledge of and exercised control over the crack cocaine found in the vehicle. Our review is limited to a determination of whether there was sufficient evidence from which a reasonable trier of fact could have found Bristol guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo.banc 1998). We must accept as true all of the evidence and inferences favorable to the state and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact. Id.
Section 195.202.1 provides that it is unlawful for any person to possess or have under his control a controlled substance. The term "possessed" or "possessing a controlled substance" is defined as:
[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 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[.]
To obtain a conviction for possession of a controlled substance, the State had to prove Bristol had knowledge that crack cocaine was in the vehicle and that he exercised control over the substance through actual or constructive possession. State v. West, 21 S.W.3d 59, 63 (Mo.App. W.D.2000). Both, the knowledge and control elements may be proved by circumstantial evidence. Id. If actual possession is not shown, constructive possession may be proved when other facts buttress an inference of the defendant's knowledge of the presence of a controlled substance. Id. At a minimum, the State was required to prove constructive possession by showing that Bristol had access to and control over the premises where the substance was located. Id. If there was joint control over the place where the drugs were found, further evidence is necessary to connect Bristol with the drugs. State v. Bowyer, 693 S.W.2d 845, 847 (Mo.App. W.D.1985).
Bristol was not in exclusive control of the premises as he was not the owner of the vehicle, and had been in possession of it for less than twenty-four hours. There were two other occupants of the vehicle who had access to the console area where the drugs were found. Consequently, the State had to present evidence of "some incriminating circumstance" to further indicate Bristol had knowledge and control over the crack cocaine. West, 21 S.W.3d at 63.1
The mere fact that Bristol was present in the vehicle where the items were found is not sufficient to make a submissible case. Id. at 64. Proximity to the contraband alone fails to prove ownership. Id. There is no evidence that Bristol exhibited signs of consciousness of guilt. He gave his correct name to the Troopers, was cooperative, and did not appear nervous or make any incriminating statements. He made no attempt to flee. Trooper Haggerty testified the contraband was not in "plain view." Trooper Pitts — who knew there was something to look for — saw only a corner of the plastic bag when he sat in the driver's seat to confiscate the evidence; he had to pull the bag out to see the crack cocaine.
Viewed in totality, the facts do not support an inference that Bristol was aware the crack cocaine was in the vehicle and that he exercised control over it. The evidence was insufficient to prove his guilt beyond a reasonable doubt. Accordingly, we reverse Bristol's conviction for possession of a controlled substance. In light of this reversal, we need not address Bristol's point on appeal alleging plain error in the State's closing arguments relative to the presence of cocaine in the vehicle.
Bristol also contends the evidence was insufficient to convict him for driving while his license was canceled, suspended or revoked. He argues his driving record — which was used to prove his revoked status — actually demonstrated he was not notified of the revocation until November 14, 2000, eight months after his arrest in March 2000. Bristol contends the State failed to prove he acted with criminal negligence, as he had no notice that his license was suspended or revoked at the time of his arrest. Our review of the record is limited to a determination of whether, after viewing all of the evidence and reasonable inferences in a light most favorable to the verdict, there is sufficient evidence from which a reasonable trier of fact could have found Bristol guilty beyond a reasonable doubt. Chaney, 967 S.W.2d at 52.
Under section 302.321.1, a person commits the crime of driving while revoked: if he operates a motor vehicle on a highway when his license or driving privilege has been canceled, suspended or revoked under the laws of this state and acts with criminal negligence with respect to knowledge of the fact that his driving privilege has been canceled suspended, or revoked.
Section 562.016.5 defines criminal negligence as:
A person "acts with criminal negligence" or is criminally negligent when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care, which a...
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