State v. Buford, No. SD 29601 (Mo. App. 3/3/2010), No. SD 29601.

CourtMissouri Court of Appeals
Writing for the CourtDon E. Burrell
PartiesSTATE OF MISSOURI, Plaintiff-Respondent, v. TONY A. BUFORD, Defendant-Appellant.
Docket NumberNo. SD 29601.
Decision Date03 March 2010

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STATE OF MISSOURI, Plaintiff-Respondent,
TONY A. BUFORD, Defendant-Appellant.
No. SD 29601.
Court of Appeals of Missouri, Southern District, Division One.
March 3, 2010.

Appeal from the Circuit Court of Greene County, Honorable Thomas E. Mountjoy, Circuit Judge.

Ellen H. Flottman, Columbia, MO., Attorney for Appellant.

Chris Koster, Attorney General, and Dora A. Fichter, Assistant Attorney General, of Jefferson City, MO., Attorney for Respondent.


Tony Buford ("Defendant") was convicted, following a bench trial, of the class C felony of possession of a controlled substance and received a sentence of three years' imprisonment in the Department of Corrections.1 Defendant now appeals that conviction, alleging the trial court should have granted his motion for judgment of acquittal because the State's evidence was insufficient to prove him guilty beyond a reasonable doubt. We agree and reverse his conviction.

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The State's evidence consisted solely of the testimony of Officer Nelson Kibby of the Springfield Police Department ("Officer Kibby"). On November 23, 2004, just before midnight, Officer Kibby conducted a traffic stop on a vehicle that was being operated with a "busted" taillight. Defendant was in the right front passenger seat of that vehicle. The owner of the vehicle, Ronald Lewis, was in the driver's seat, and a third, unidentified individual was in the back seat.

Officer Kibby noted that all three occupants were acting very nervous, so he checked to see if any of them had outstanding warrants. That check revealed that all three had active warrants. Officer Kibby placed each occupant under arrest and searched their persons. Defendant did not have any drugs or drug paraphernalia on his person. Officer Kibby then searched the vehicle.

During that search, Officer Kibby found a "yellow and white rock, which is consistent with crack cocaine" inside a plastic bag located between the right front seat and the passenger door.3 He also found loose rocks of crack cocaine in plain view on the floorboard where Defendant's feet would have been. Other than the drugs, the car was very neat and clean. Both the loose cocaine rocks on the floorboard and the rock found in the baggie between the seat and the door would have been within the reach of anyone seated in the front passenger seat. Officer Kibby had no way of knowing how long Defendant had been in the vehicle before it was stopped.

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Officer Kibby Mirandized4 Defendant and interviewed him at the jail. During that interview, Defendant told Officer Kibby either that Officer Kibby (1) "knew who those drugs belonged to" or (2) "knew where those drugs came from." Defendant specifically denied that the drugs belonged to him.

When the State rested its case, defense counsel moved for a judgment of acquittal, which the trial court denied. Defendant presented no evidence. In its closing argument, the prosecutor admitted, "Even though he might not have bought the drugs or — they were probably not his drugs or not, I don't know — but I know that he had knowledge and control of the drugs, which is possession."

The trial court took the case under advisement and allowed the parties ten days to submit case law relevant to the question of whether the State had presented sufficient evidence to support a conviction. Just over four months later, the trial court announced a guilty verdict and thereafter sentenced Defendant as indicated above.

Standard of Review

"In reviewing a challenge to sufficiency of the evidence, this Court must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt." State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). "The standard of review in a bench-tried case is the same as in a jury-tried case." State v. Burse, 231 S.W.3d 247, 251 (Mo. App. E.D. 2007). "We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them." State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). "The trier of fact determines the credibility of the

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witnesses, and may believe all, some or none of the testimony of a witness." Burse, 231 S.W.3d at 251. "The Court may `not supply missing evidence, or give the [State] the benefit of unreasonable, speculative, or forced inferences.'" Whalen, 49 S.W.3d at 184 (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n.1 (Mo. App. E.D. 1999)). The function of this court "is not to reweigh the evidence, but only to determine if the [conviction] is supported by sufficient evidence." Burse, 231 S.W.3d at 251.

Possession of a Controlled Substance

Section 195.202.1 provides that "it is unlawful for any person to possess or have under his control a controlled substance." And, "[a]ny person who violates this section with respect to any controlled substance except thirty-five grams or less of marijuana is guilty of a class C felony." Section 195.202.2.

Section 195.010(32) sets forth what constitutes possession:

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.5 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[.]

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In order to sustain a conviction for possession of a controlled substance, "the state must prove two elements: (1) that [the defendant] had conscious and intentional possession of the controlled substance, either actual or constructive, and (2) that [he] was aware of the presence and nature of the substance." State v. West, 21 S.W.3d 59, 63 (Mo. App. W.D. 2000). It is necessary to prove "that the defendant both knew the nature of the presence of the substance and that he had some conscious control over it." State v. Bowyer, 693 S.W.2d 845, 847 (Mo. App. W.D. 1985). "The possession prong and the knowledge prong of the charged offense are not entirely independent, in that both require proof of the defendant's knowledge of the presence of the controlled substance." State v. Gonzalez, 235 S.W.3d 20, 26 (Mo. App. S.D. 2007).

"In a case where an accused is in exclusive control of premises, the law makes the inference that a contraband substance found there also rests within his possession and control." Bowyer, 693 S.W.2d at 847. However, in a case "where premises are shared, a like inference of possession of contraband does not arise in the absence of additional circumstances to inculpate the accused." Id. "The State must present some incriminating circumstance that implies the accused knew of the presence of the drugs and the same were under his control." State v. Smith, 11 S.W.3d 733, 736-37 (Mo. App. E.D. 1999). "A joint control situation does not preclude a finding of possession so long as further evidence connects the defendant to the illegal substances." State v. Millsap, 244 S.W.3d 786, 788 (Mo. App. S.D. 2008). Because "[t]hese principles, developed in the context of premises, govern with a like validity to other occupants and enclosures — such as the driver and occupants of a motor vehicle[,]" Bowyer, 693 S.W.2d at 848, we will compare

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and contrast the evidence adduced in the instant case with that adduced in prior cases involving the possession of illegal drugs in both homes and automobiles.

"In cases involving joint control of an automobile, `a defendant is deemed to have both knowledge and control of items discovered within the automobile, and, therefore, possession in the legal sense, where there is additional evidence connecting him with the items.'" State v. Woods, 284 S.W.3d 630, 639 (Mo. App. W.D. 2009) (quoting State v. Sanderson, 169 S.W.3d 158, 164-65 (Mo. App. S.D. 2005)).

Additional incriminating circumstances that will support an inference of knowledge and control include the following: Finding a large quantity of drugs in the vehicle; Finding drugs having a large monetary value in the vehicle; Easy accessibility or routine access to the drugs; The odor of drugs in the vehicle; The presence of the defendant's personal belongings in close proximity to the drugs; Making false statements in an attempt to deceive the police; The defendant's nervousness during the search; The defendant's flight from law enforcement; The presence of drugs in plain view; Other conduct and statements made by the accused; and the fact that the defendant rented the vehicle.

Woods, 284 S.W.3d at 640. "In determining whether the State has proven sufficient additional incriminating circumstances, we must consider the totality of the circumstances." Id.

Proximity and Presence

"In cases involving joint control of an automobile, a criminal defendant is only deemed to have possession and control where sufficient additional evidence connects him to the controlled substance." State v. Chavez, 128 S.W.3d 569, 574 (Mo. App. W.D. 2004). In Gonzalez, it was held that "'presence in the car and proximity to the drugs alone was insufficient in a joint possession case.'" 235 S.W.3d at 30 (citing State v. Bristol, 98 S.W.3d 107, 111-12 (Mo. App. W.D. 2003)). "Superior access to contraband that is accessible by two or more people is an incriminating fact." Millsap, 244 S.W.3d

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at 789. However, "[t]he mere fact that [the defendant] was present in the vehicle where the items were found is not sufficient to make a submissible case." Chavez, 128 S.W.3d at 574. "Nor does proximity to the contraband, alone, even as to a substance in...

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