State v. Chavez

• Decision Date: 30 January 2004
• Docket Number: No. WD 62048.,WD 62048.
• Citation: 128 S.W.3d 569
• Parties: STATE of Missouri, Respondent, v. Carlos A. CHAVEZ, Appellant.
• Court: Missouri Court of Appeals

128 S.W.3d 569

STATE of Missouri, Respondent, v. Carlos A. CHAVEZ, Appellant.

No. WD 62048.

Missouri Court of Appeals, Western District.

January 30, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2004.

Application for Transfer Denied March 30, 2004.

William J. Swift, Columbia, MO, for appellant.

Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, ROBERT G. ULRICH, Judge and RONALD R. HOLLIGER, Judge.

JOSEPH M. ELLIS, Chief Judge.

Carlos Chavez appeals from his conviction by jury of one count of possession of a controlled substance, § 195.202.¹ In accordance with the jury's recommendation, the trial court sentenced Chavez to a term of five years in the Missouri Department of Corrections.

On May 11, 2001, Chavez walked off his job at a Dairy Queen restaurant in North Kansas City, Missouri, following an argument with the storeowner, and went to a nearby bowling alley. While Chavez was at the bowling alley, Kenneth Faulkner called Chavez on Chavez's cellular telephone "to see what he was up to" and agreed to come pick Chavez up. When Faulkner walked into the bowling alley to meet Chavez, Chavez was carrying a white plastic shopping bag. Chavez told Faulkner that he had "a whole lot of stuff" on him and that they "needed to get out of Northtown." Faulkner and Chavez then got into Faulkner's car, and Faulkner began to drive.

Shortly after leaving the bowling alley, Faulkner drove past a patrol car driven by Officer Robert Masterson of the North Kansas City Police Department. When Faulkner made eye contact with Officer Masterson, Faulkner's eyes became extremely large and a look of surprise came over his face. Because of Faulkner's reaction, Officer Masterson ran a check on the car's license plates, which revealed that the car's owner, Faulkner, had an outstanding warrant for his arrest.

Officer Masterson pulled Faulkner over, approached the car, and asked Faulkner for his driver's license. After running a further check on Faulkner's driver's license, Officer Masterson returned to the car, asked Faulkner to get out of the vehicle, and placed him under arrest on the outstanding warrant.

As Officer Masterson was placing Faulkner under arrest, Officer Cory Devault arrived to assist Officer Masterson, who asked Officer Devault to check out the passenger in the car. Officer Devault approached Chavez and asked for his identification. After determining that Chavez did not have any outstanding warrants for his arrest, Officer Devault asked Officer Masterson if Chavez was free to leave and was told to release him. After Officer Devault told Chavez that he was free to go, Chavez got out of the car, closed the door, and began walking down the street. After walking a short distance, Chavez flagged down an approaching Ford Tempo driven by a woman who worked with him at Dairy Queen and got a ride from her.

Shortly after Chavez left the scene, Faulkner gave Officer Masterson permission to search the car. When Officer Masterson opened the passenger door, he immediately saw a plastic bag containing what appeared to be two rocks of crack cocaine and a scale lying between the passenger seat and the door. Laboratory analysis later revealed that the substance in the bag was 81.57 grams of cocaine salt. When Officer Masterson showed the bag to Faulkner, Faulkner stated, "This is not good. Those look like drugs."

Officer Masterson then instructed Officer Devault to apprehend Chavez. Officer Devault got into his patrol car to chase after the Ford Tempo and called for assistance. Shortly thereafter, Officer Patrick Romaine stopped the Ford Tempo, and Officer Devault arrived to arrest Chavez.

A further search of Faulkner's car uncovered a coin purse with baggies inside containing what appeared to be cocaine residue. At trial, Faulkner testified that the coin purse was his, that he had a "pretty healthy" cocaine habit and that he had used approximately half a gram of cocaine earlier that day. The police also found a black bag containing approximately 400 baggies in Faulkner's glove box.

Appellant was subsequently charged by indictment with one count of trafficking in the second degree, § 195.223. The indictment alleged that Chavez had "possessed 6 grams or more of a mixture of substance containing cocaine base, a controlled substance, knowing of its presence and illegal nature."

On April 15 and 16, 2002, Appellant was tried by jury in the Circuit Court of Clay County. In support of its case, the State presented testimony from all of the officers involved in his arrest, a chemist from a Missouri State Highway patrol crime lab, and Faulkner.²

After the State presented its evidence, but before the State officially rested its case, the trial court pointed out, sua sponte, the fact that the State's expert from the State crime lab had testified that the substance in the bag was cocaine salt and was not a "cocaine base substance." The Court noted that, while only six or more grams of a cocaine-base substance was required to establish trafficking under § 195.223, over 150 grams of cocaine salt was necessary to establish trafficking under the statute. In response to the Court's observations, the State filed a new information that conformed to the evidence and charged Chavez with possession of a controlled substance under § 195.202.

After the State rested, Chavez presented the testimony from his employer and his sister and also testified himself. After hearing all of the evidence, the jury found Appellant guilty of possession of a controlled substance and recommended that he be sentenced to a term of five years imprisonment. Subsequently, the trial court sentenced Chavez to five years in the Missouri Department of Corrections in accordance with the jury's recommendation. Chavez brings two points on appeal.

In his first point on appeal, Chavez challenges the sufficiency of the evidence to support his conviction. When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Hawthorne, 74 S.W.3d 826, 828 (Mo.App. W.D.2002); State v. Daniels, 18 S.W.3d 66, 68 (Mo.App. W.D. 2000). "`The function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence.'" State v. Rollett, 80 S.W.3d 514, 519 (Mo.App. W.D.2002) (quoting State v. Agee, 37 S.W.3d 834, 836 (Mo. App. S.D.2001)). In making that determination, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence and inferences to the contrary. Hawthorne, 74 S.W.3d at 828.

Appellant was convicted of possession of a controlled substance under § 195.202. "In order to establish possession, the State must show (1) a conscious and intentional possession of a controlled substance, either actual or constructive, and (2) an awareness of the presence and nature of the substance." State v. Johnson, 81 S.W.3d 212, 215 (Mo.App. S.D. 2002). Thus, to obtain a conviction for possession of a controlled substance, the State was required to prove that Chavez had knowledge that the cocaine salts were present in the vehicle and that he exercised control over the substance through actual or constructive possession. State v. Bristol, 98 S.W.3d 107, 111 (Mo.App. W.D. 2003). "Reasonable inferences drawn from circumstantial evidence can establish the elements of possession and knowledge." State v. Fox, 882 S.W.2d 214, 217 (Mo.App. W.D.1994); See also Johnson, 81 S.W.3d at 215 ("Circumstantial evidence may be used to prove both possession and awareness.").

"Actual possession of a substance is where the person has the substance on his person or within his easy reach and convenient control." Rollett, 80 S.W.3d at 521. "Constructive possession is where a person has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons." Id.

"A defendant who has exclusive control of property is deemed to have possession and control of any substance found on the property."³ Id. In cases where there is joint control, however, a defendant is only deemed to have possession and control where additional evidence in the record connects him or her to the controlled substance. Id.

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. Johnson, 81 S.W.3d at 215. "Such additional evidence includes: the presence of a large quantity of the substance at the scene where the defendant is arrested; routine access to an area where controlled substances are found; nervousness exhibited during the search of the area; the subject of the controversy in plain view; commingling of the controlled substance with the defendant's personal belongings; and the conduct and statements made by the accused." Id. "The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proved." Rollett, 80 S.W.3d at 521.

"The mere fact that [the defendant] was present in the vehicle where the items were found is not sufficient to make a submissible case." Bristol, 98 S.W.3d at 111. "The mere presence of the accused on shared premises where contraband is found is not enough circumstantial evidence to show ownership or possession." State v. Kimberley, 103 S.W.3d 850, 858 (Mo.App. W.D.2003). "Mere presence at a place where contraband is found is not enough to create an inference of control." Id. (citing State v. Todd, 70 S.W.3d 509, 521 (Mo.App. W.D.2002)). Accordingly, the...