State v. Fox, WD

• Decision Date: 21 June 1994
• Docket Number: No. WD,WD
• Citation: 882 S.W.2d 214
• Parties: STATE of Missouri, Respondent, v. Mark Allen FOX, Appellant. 47434.
• Court: Missouri Court of Appeals

Page 214

882 S.W.2d 214

STATE of Missouri, Respondent, v. Mark Allen FOX, Appellant.

No. WD 47434.

Missouri Court of Appeals,

Western District.

June 21, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 2, 1994.

Application to Transfer Denied Sept. 20, 1994.

James R. Wyrsch, Jacqueline A. Cook, Wyrsch, Atwell, Mirakian, Lee & Hobbs, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LOWENSTEIN, P.J., and BERREY and SPINDEN, JJ.

LOWENSTEIN, Presiding Judge.

This is an appeal from a jury trial of Appellant, Mark Fox, who was convicted of a class B felony of possession with intent to distribute a controlled substance, § 195.211 RSMo.Supp.1991, and sentenced to fifteen years imprisonment. His two points on appeal are: 1) the sufficiency of the evidence; and 2) the admission of evidence of uncharged crimes.

In May, 1992 the Buchanan County Drug Strike Force was conducting an investigation and surveillance of Allen Lange, and Fox. On May 15, 1992 members of the surveillance team, which also included officers of the Missouri State Highway Patrol and St. Joseph Police Department, observed Lange while he was at the home of a confidential informant. Lange sold the informant two ounces of cocaine for $2800.

When Lange left the informant, he drove to Fox's home (also being monitored), picked up Fox and Fox's brother and drove away. A short time later, Lange was stopped. Fox was in the front passenger seat of the car, his brother in the back seat. The men were ordered out of the car so it could be Lange testified pursuant to a plea agreement. He said he had known Appellant for four or five years and he had previously supplied him with cocaine. Lange said the cocaine in the car was his, he had just sold 2 ounces to another person and that he had intended to give the cocaine to Appellant; he wanted "to see if he [Fox] wanted it or not." Lange testified, "In the past we had done dealings ...;" however, he further stated that at the time of arrest, Appellant had no idea of the presence of drugs. Furthermore, in contradiction to the testimony of the arresting officers, he testified the bag was concealed under the passenger's seat and would not have been visible to someone sitting in the front seat. He said he picked Fox up to talk about the business they were starting together.

searched; they all complied. The police found a brown paper bag, the type used by grocery stores, lying on the right front floorboard, in the area between Fox's legs. One of the officers conducting the search testified that the bag was in plain view, and not under the seat. Inside the grocery bag was a plastic bag, containing 134.4 grams of cocaine, or about 4.6 ounces. Fox was taken into custody and searched, the officers found approximately $6,329.70. (Fox had $5,300 in the left rear pocket of his jeans, $571 in the right front pocket, $400 in the right rear pocket, and $58.70 in the left front pocket.)

At the time of the arrest, there were approximately five ounces of cocaine in the car. The cocaine was in a bag, which was visible on the floorboard underneath, or between Fox's feet. The going price for the quantity of cocaine was approximately $1,200-$1,500 per ounce; an informant had just paid $1,450 for one ounce. Officer Strong with the Buchanan County Strike Force testified that user amounts are generally one to two grams, and anything over that amount indicates a distributor.

SUFFICIENCY OF THE EVIDENCE

Fox asserts there was insufficient evidence to prove he was in possession, actual or constructive of the contraband and, therefore, his motion for judgment for acquittal or motion for a new trial should have been granted. Where the sufficiency of the evidence is questioned, this court will not weigh the evidence, but will accept it as true; all evidence and reasonable inferences drawn therefrom are received in a light most favorable to the jury's verdict, disregarding all contrary evidence and inferences. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992); State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Review is only to determine whether there is substantial evidence that a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993) cert. denied 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). Issues of credibility, reliability and weight given to witnesses' testimony are for the jury. State v. Parrish, 852 S.W.2d 426, 428 (Mo.App.1993).

Circumstantial evidence is that which does not directly prove a fact in issue but gives rise to a logical inference that the fact exists. State v. Harris, 807 S.W.2d 528, 529 (Mo.App.1991). Direct evidence is evidence which proves a fact in issue without other inference of that fact. Id. Under the circumstantial evidence rule:

Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. In such cases the evidence need not be absolutely conclusive of guilt nor must the evidence demonstrate the impossibility of innocence. Grim, 854 S.W.2d at 406 (citing State v. Livingston, 801 S.W.2d 344, 347 (Mo. banc 1990)) (emphasis added in Grim)

This standard has been rejected by the Supreme Court of Missouri in State v. Grim, 854 S.W.2d 403. The Court held that as long as a conviction can be upheld under Dulany, the due process requirements have been met. Id. at 406. The Court held the question of "how likely a theory has to be before it is reasonable" unnecessarily adds to the overall confusion regarding the rule. This court does not decide on whether the Court's ruling in Grim applies to this case because even if it does not apply, and the prior circumstantial To prove a violation of § 195.211, the State must prove that the defendant: 1) knowingly and intentionally possessed a controlled substance; 2) that he knew of its nature and presence; and 3) he intended to deliver the cocaine to another. State v. Parrish, 852 S.W.2d at 428 (1993); § 195.211.

evidence rule is applicable, there is sufficient evidence to affirm the conviction.

The elements of knowledge, awareness, and possession may be proved by circumstantial evidence. State v. Keller, 870 S.W.2d 255, 260 (Mo.App.1994); State v. Thomas, 737 S.W.2d 247, 249-250 (Mo.App.1987); State v. Caldwell, 698 S.W.2d 566, 573 (Mo.App.1985). Possession may be either actual or constructive. Keller, 870 S.W.2d at 260. Where the state proves an accused had exclusive control of the premises or vehicle, the law infers the contraband therein is under his possession and control. Harris, 807 S.W.2d at 530.

Where there is joint possession, the state "must prove additional circumstances to inculpate the accused." Id. (court found sufficient evidence to affirm where the evidence included the presence of a box containing cocaine and a syringe with a cocaine solution in it, located in front of accused in a truck, the presence of a "how to" book on recreational drugs, the truck was sitting in a dark and deserted park two hours after the park closed, and the accused tried to hide the syringe); See also State v. Barber, 635 S.W.2d 342 (Mo.1982). Reasonable inferences drawn from circumstantial evidence can establish the elements of possession and knowledge. Parrish, 852 S.W.2d at 428. Additionally, the "presence of large quantities of a controlled substance may buttress an inference of possession and control if consistent with the totality of the circumstances." Keller, 870 S.W.2d at 260 (citing Caldwell, 698 S.W.2d at 574). The value of the drugs the defendant is charged with possession is also relevant to show he knowingly and intentionally possessed the drugs. Id. Albeit, the car belonged to Lange, not Fox, the totality of the facts establish a submission of constructive possession. But see State v. Allen, 744 S.W.2d 865, 868 (Mo.App.1988). Under § 195.010(33), RSMo. Cum Supp.1993 defines constructive possession:

"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."

The facts favorable to the verdict are as follows: First, the bag containing 134.4 grams of cocaine was located on the floorboard on the passenger side of the car either underneath or between the defendant's feet. The police testified they did not have to look under the seat to see it but, rather, it was in plain view when they conducted their search of the car. See Harris, 807 S.W.2d 528; Cf. State v. Ray, 747 S.W.2d 765 (Mo.App.1988); State v. Bowyer, 693 S.W.2d 845 (Mo.App.1985) (drugs were concealed from accused). Furthermore, Fox had purchased drugs in the past from Lange, in the same manner as this sale....