State v. Brown, 16834

• Decision Date: 07 December 1990
• Docket Number: No. 16834,16834
• Citation: 801 S.W.2d 474
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth Paul BROWN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 474

801 S.W.2d 474

STATE of Missouri, Plaintiff-Respondent, v. Kenneth Paul BROWN, Defendant-Appellant.

No. 16834.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 7, 1990.

Motion for Rehearing or Transfer to

Supreme Court Denied

Dec. 31, 1990.

Application to Transfer Denied Feb. 7, 1991.

Marcie W. Bower, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PARRISH, Presiding Judge.

Kenneth Paul Brown (defendant) was convicted of possession of more than 35 grams of marijuana, a controlled substance, § 195.020.1, ¹ and possession of drug paraphernalia, § 195.020.2, following a jury trial in the Circuit Court of Mississippi County. He was sentenced to imprisonment for a term of three years for the offense of possession of marijuana (Count I), and to confinement for a term of six months in the county jail for the offense of possession of drug paraphernalia (Count II). This court affirms.

Defendant alleges that the trial court erred in overruling his motions for judgment of acquittal made at the close of the state's evidence and at the close of all the evidence. Defendant contends that the state failed to present sufficient evidence to prove that he knowingly possessed a controlled substance or knowingly possessed drug paraphernalia.

In reviewing the record on appeal, this court accepts as true all evidence that tends to prove defendant guilty, together with all reasonable inferences that support the verdicts of the jury. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). Likewise, in order to determine whether sufficient evidence existed from which reasonable persons could have found defendant guilty, any evidence contrary to the verdict is disregarded. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981).

To sustain a conviction for possession of a controlled substance under § 195.020, the state must prove that the defendant knowingly and intentionally possessed the proscribed substance. To meet this burden, conscious, intentional possession, either actual or constructive, must be established. The state must also show that the defendant was aware of the presence and nature of the substances in question. Both possession and knowledge may be proved by circumstantial evidence. 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."

State v. Barber, supra, (citations omitted).

The evidence, considered in the light most favorable to the verdict, is as follows. Law enforcement officers from the Cape Girardeau County ² Sheriff's Department and the Missouri State Highway Patrol executed a search warrant on August 28, 1987, at the residence of defendant's parents. Defendant was present when law enforcement officers arrived and undertook to execute the search warrant.

Upon entering the residence, the officers arrested Marjorie Brown, defendant's mother, and Danny Brown, defendant's brother. ³ After removing Marjorie and Danny from the residence, the officers re-entered the premises. An officer entered a bedroom in the northwest corner of the house and discovered defendant lying in bed. After allowing defendant to dress, he was also taken from the house.

Three bags containing marijuana were found in the room where defendant had been in bed. Two mattresses were on the bed on which defendant was found. A small bag containing marijuana was found under the top mattress. A second bag containing marijuana was found between the bottom mattress and a box spring. A third bag containing marijuana was found inside a suitcase that was sitting near the bed. The marijuana from the bags weighed 4.1 grams, 18.2 grams and 65.8 grams, totaling 88.1 grams. Marijuana was also found in the bed and an ashtray--"the top of a spray can or something"--containing cigarette ashes and marijuana ashes was by the bed.

The bag of marijuana in the suitcase was inside an empty cutout cigarette carton. The suitcase also contained a letter addressed to defendant, as well as other papers addressed to him that were attached to a clipboard. Items of men's clothing were inside the suitcase. The clothing included a pair of pants and a shirt. Two bags containing "rolling papers" were found on a shelf or counter area made from stacked boxes. The rolling papers were within three to four feet of the bed. It was "maybe one step to them."

The items inside the suitcase that were addressed to defendant had addresses different than the address of the house that was searched. They were addressed to defendant at Rt. 1, Box 192, Whitewater, Missouri, and at Rural Route, Box 109-A, Whitewater, Missouri. The address for the house that was searched was Rt. 1, Box 131, Whitewater, Missouri.

The address used by defendant on the booking form used to record his arrest was General Delivery, Whitewater. There was testimony by one of the officers who participated in the search that defendant "has bounced around the Whitewater area for several years, and he would live at one address a short time and then another one, and I think that's evidenced by all the addresses we are finding here."

The jury was instructed, as to the charge that defendant committed the offense of possession of marijuana (Count I):

INSTRUCTION NO. 9 ⁴

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 28th day of August, 1987, in the County of Cape Girardeau, State of Missouri, the defendant possessed more than 35 grams of Marihuana, and

Second, that defendant knew he possessed it, and

Third, that defendant was aware of the nature and character of the substance,

then you will find the defendant guilty under Count I of possessing more than 35 grams of Marihuana.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The jury was also instructed, as to the charge that defendant committed the offense of possessing drug paraphernalia (Count II):

INSTRUCTION NO. 11 ⁵

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 28th day of August, 1987, in the County of Cape Girardeau, State of Missouri, the defendant possessed certain items, to wit: two books of JOB 125 rolling papers, and

Second, that the items were drug paraphernalia, and

Third, that the defendant intended to use the drug...