State v. Clifford

• Decision Date: 02 July 1991
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Bob William CLIFFORD, Appellant. 43382.
• Court: Missouri Court of Appeals

Page 3

815 S.W.2d 3

STATE of Missouri, Respondent, v. Bob William CLIFFORD, Appellant.

No. WD 43382.

Missouri Court of Appeals,

Western District.

July 2, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 27, 1991.

Application to Transfer Denied Oct. 16, 1991.

Marcie W. Bower, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and TURNAGE and ULRICH, JJ.

ULRICH, Judge.

Bob William Clifford appeals his conviction by a jury of possession of a controlled substance in violation of § 195.020.1, RSMo 1986. Mr. Clifford was sentenced to three years imprisonment. On appeal, Mr. Clifford contends that the State failed to produce sufficient evidence that he knowingly possessed a controlled substance, failed to lay a proper foundation for introducing the controlled substance into evidence, and the prosecutor, during closing argument, improperly injected his personal opinion, implied that he had special knowledge of Mr. Clifford's guilt, and repeatedly made improper references to Mr. Clifford's failure to testify. The conviction is affirmed.

On November 11, 1988, Mr. Clifford and Trevor Teale, Mr. Clifford's friend, left Kansas City, Missouri, and drove to Gentry County to hunt deer. The two men travelled in a car owned by Mr. Teale's father to the Elam Bend Wildlife Reservation in Gentry County. They intended to hunt on property owned by Mr. Teale's father that bordered the wildlife reservation. After spending a brief period of time at the hunting site, the two men drove to Mr. Teale's grandmother's house, located in McFall, Missouri.

According to Mr. Teale's testimony, beer, cocaine and marijuana were present in the automobile during the journey from Kansas City to McFall. Mr. Teale testified that Mr. Clifford knew he brought cocaine and marijuana on the hunting expedition. At trial, Mr. Teale testified as follows:

[Prosecutor] Was the defendant aware that you had the controlled substances with you?

[Mr. Teale] Yes, he was.

[Prosecutor] How is it you know he was aware of it?

[Mr. Teale] Probably I told him prior to the trip. We were together quite a bit. So either he knew the last couple days that we were together or I told him. I'm sure it was a matter of our friendship. I knew about him and he knew about me kind of thing.

Mr. Teale's grandmother was not home when the two men arrived at her house in McFall. The two men entered Mr. Teale's grandmother's one-car garage. There, Mr. Teale, using a mirror and a razor blade, chopped a portion of the cocaine that had been in the car into a powdery substance. Mr. Teale then separated the cocaine into individual portions and, using a rolled-up $20 bill, sniffed a portion of the cocaine. Mr. Teale testified that Mr. Clifford was present in the garage while he prepared the cocaine and that he and Mr. Clifford "took turns" ingesting the drug.

After spending approximately one to three hours in the garage, Mr. Teale and Mr. Clifford left Mr. Teale's grandmother's property and returned to the hunting area. Mr. Teale took the unused cocaine with him in his father's car, but he could not recall if Mr. Clifford observed him returning the cocaine to the automobile. Mr. Clifford drove a motorcycle from Mr. Teale's grandmother's house to the hunting area. Upon returning to the Elam Bend Wildlife Reservation, Mr. Clifford parked the motorcycle at the hunting area and reentered the automobile driven by Mr. Teale. The vehicle was then on the reservation. The two men remained in the automobile consuming beer and marijuana until morning. According to Mr. Teale's testimony, the two men did not inhale cocaine during the remainder of their hunting expedition.

At approximately 12:30 p.m., the afternoon of November 12, 1988, two agents of the Missouri Department of Conservation, Kyle Carroll and John Adams, observed Mr. Teale and Mr. Clifford sitting in the automobile in the Elam Bend Wildlife Reservation. The agents inquired whether the two men were in need of assistance. The agents continued to patrol the wildlife area. Two hours later, the agents observed Mr. Teale and Mr. Clifford still in the automobile. The agents approached the automobile and asked to inspect Mr. Teale's hunting permit. Mr. Teale stepped out of his automobile in order to present his hunting permit. While the door of the automobile was open, Agent Carroll saw the handles of a pair of hemostats and a razor blade on the center console between the two front seats of the automobile. Agent Carroll reached into the automobile and picked up the hemostats which appeared to have on them a residue from smoking material. Mr. Teale denied any knowledge regarding the residue on the hemostats. Agent Carroll looked inside the automobile again and found a rolled-up $20 bill on the console.

Agent Carroll then directed Mr. Teale and Mr. Clifford to stand outside of the automobile while it was searched. Without Mr. Teale's permission, the agents searched the automobile. During the search, the agents found a mirror, with a small amount of white powder on it, inside the glove compartment and a razor blade lying on or near the mirror. Agent Carroll also found a small bag containing white powder inside the console area between the driver's and passenger's seats. Agent Carroll asked the two men who owned the items, and Mr. Teale admitted they were his.

Trevor Teale and Bob William Clifford were subsequently charged with possession of a controlled substance in violation of § 195.020. Prior to trial, Mr. Teale pleaded guilty. Mr. Teale testified as the State's witness at Mr. Clifford's trial. At trial, the State's evidence established that the white powder seized by the agents was cocaine.

For point (1) on appeal, Mr. Clifford contends that the State failed to produce sufficient evidence to establish that he knowingly possessed the cocaine. In particular, Mr. Clifford claims the State failed to present evidence that he was aware of the cocaine's presence in the car, that he intentionally or consciously possessed the cocaine, or that he had exclusive use of the car at the time that the cocaine was seized. When reviewing the sufficiency of the evidence, the facts in evidence, together with all inferences reasonably drawn therefrom, must be considered in the light most favorable to the verdict, and all evidence and inferences to the contrary must be disregarded. State v. Falkner, 672 S.W.2d 373, 374 (Mo.App.1984).

To sustain a conviction for possession of a controlled substance, the State must demonstrate that the defendant knowingly and intentionally possessed the illegal substance. State v. Keeper, 787 S.W.2d 887, 889 (Mo.App.1990). When evidence of actual possession is lacking, "[c]onstructive possession will suffice to sustain a conviction for possession of a controlled substance if facts are present to buttress an inference of defendant's knowledge of the presence of a controlled substance." State v. Falkner, 672 S.W.2d at 375. In Falkner, the court further stated:

In narcotics or controlled substance cases, the law has developed the policy that a person in exclusive control of the premises will be deemed to have possession and control of the substance found on the premises.... Where a person is present on premises where drugs are found but does not have exclusive use or possession of the premises, it may not be inferred that he had knowledge of the presence of the drugs or had control, so that no submissible case is made. Additional factors are required. Where the defendant is present on the premises and if there are additional independent factors showing his knowledge and control, then that is sufficient to withstand a motion for a directed verdict.

Id. at 375 (quoting State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975)). Since cases addressing constructive possession of controlled substances turn on a determination of these "additional factors," each case necessarily turns on its own facts. Keeper, 787 S.W.2d at 890. It is clear from these cases, however, that the mere presence of the defendant on the premises where the drugs are found is insufficient to uphold the conviction for possession of a controlled substance. Id.

Mr. Clifford, relying upon State v. Bowyer, 693 S.W.2d 845 (Mo.App.1985), contends that his mere presence in the automobile is insufficient evidence to support the conviction. In Bowyer, the defendant was convicted of possession of marijuana. Id. at 846. Mr. Bowyer was driving his estranged wife's automobile while she was present in the car. Id. A State Highway Patrol Trooper stopped the automobile and observed a roach clip in plain view. Id. The trooper subsequently discovered marijuana in the console located between the two front seats. Id. At trial, the wife testified that the defendant never had possession of these items nor did he have knowledge that they were in the automobile. Id. at 846-47. The only evidence suggesting the defendant was aware of the presence of marijuana was the roach clip in plain view, but the court determined that "[t]o assume that the [defendant] knew the illicit purpose of the roach clip, however, does not prove that he also knew of the marijuana concealed in the console." Id. at 849. The court concluded that "[t]he evidence shows no additional inculpatory circumstance--other than the presence of the accused in the place where the substance was found--essential to the proof of that conscious possession, and hence conviction." Id.

In this case, however, additional inculpatory circumstances demonstrate Mr. Clifford's possession and control of the cocaine. Unlike Bowyer, in this case the co-occupant of the automobile testified that the defendant was aware of the controlled substance's presence. Additionally, Mr. Clifford was present for one to three hours in a one-car garage while Mr. Teale admittedly ingested the controlled substance. According to Mr. Teale's...