State v. Gilmore, SC 96341
| Citation | 537 S.W.3d 342 |
| Decision Date | 16 January 2018 |
| Docket Number | No. SC 96341,SC 96341 |
| Parties | STATE of Missouri, Respondent, v. Vicki Leann GILMORE, Appellant. |
| Court | United States State Supreme Court of Missouri |
Gilmore was represented by J. Eric Mitchell of Johns, Mitchell & Duncan LLC in Clinton, (660) 885-6161.
The state was represented by Christine K. Lesicko and Dora A. Fichter of the attorney general's office in Jefferson City, (573) 751-3321.
Vicki Gilmore appeals her conviction of the class C felony of possession of a controlled substance, arguing insufficient evidence supports her conviction. Following a jury trial, Gilmore was found guilty and sentenced to seven years in prison. The circuit court suspended the execution of the sentence and placed her on probation for five years. Because there was insufficient evidence Gilmore knew of the presence of the controlled substance for which she was convicted of knowingly possessing, this Court reverses the circuit court's judgment and enters judgment of acquittal.
In September 2014, the St. Clair County sheriff's office launched an investigation into reported drug activity at a residential trailer leased by Josh Foley and Ashley Mitchell in Appleton City. During the investigation, a deputy sheriff performed multiple "trash pulls," culling through Foley's garbage to ascertain possible evidence of drug use and sales. The deputy recovered three or four plastic bags with the corners cut off, which, according to testimony at trial, are commonly used for packaging drugs for sale. During one of these trash pulls, the deputy observed Gilmore, who was dating Foley, at Foley's trailer. The deputy also observed Gilmore's vehicle at Foley's trailer on each of the six occasions he conducted trash pulls, but he only observed Gilmore at the trailer the one time.
On October 1, 2014, law enforcement went to Foley's trailer to serve an arrest warrant issued for him. When law enforcement arrived, Foley, Gilmore, and an unidentified male were inside the trailer. Foley attempted to flee through the back door. After officers apprehended him, Foley admitted to possessing drug paraphernalia but refused to consent to a search of the trailer.
Gilmore, who was inside the residence, cooperated with law enforcement. When questioned, Gilmore told officers there was drug paraphernalia in the trailer. Gilmore consented to a search of her person, her purse, her vehicle, and her cellular telephone. Officers did not discover any contraband as a result of these consensual searches but did discover a text message on Gilmore's telephone from someone inquiring about a "20 bag," which, according to testimony at trial, is a common term for a $20 bag of marijuana. Gilmore admitted she and Foley sold marijuana and had previously smoked marijuana but stated there was no marijuana in the trailer. Officers did not observe anything suggesting Gilmore was under the influence of drugs or alcohol.
After obtaining a search warrant, law enforcement officers searched the trailer. In the search, police recovered a glass pipe with white powder residue hidden inside a large stereo console, a small plastic bag in an ashtray on the kitchen counter with a small amount of white powder, and two marijuana smoking devices in a kitchen cabinet above the stove.1 Officers also recovered a set of digital scales and a cut-off corner of a plastic bag containing a small amount of white powder from the medicine cabinet in the bathroom. A laboratory report later indicated the bag found inside the medicine cabinet contained .275 grams of methamphetamine. In the same medicine cabinet, officers observed an eyelash curler. An additional digital scale was found in one of the bedrooms, and a magnetized picture of Gilmore and Foley was found hanging on the refrigerator.
Gilmore was charged with possession of methamphetamine, a controlled substance, as a prior drug offender. At trial, the detective who conducted the search testified he did not find any female clothes in his search of Foley's trailer. He further testified the pipe located in the stereo console was hidden from plain view and was only observed after the console was opened. The detective testified the bag containing methamphetamine was on the third shelf of the medicine cabinet, tucked up against the left wall, and was not visible upon entering the bathroom. He further testified Gilmore had no personal items other than her purse inside the trailer, there was no mail in Gilmore's name, and he did not see Gilmore in the bathroom where the methamphetamine was found.
After the State rested, Gilmore filed a motion for judgment of acquittal, arguing the State failed to make a submissible case. Specifically, Gilmore argued there was no evidence she had knowledge of the methamphetamine, had ever possessed the methamphetamine, or was ever in the bathroom where the only controlled substance was located. The circuit court overruled the motion. At the close of all evidence, Gilmore renewed her motion for judgment of acquittal, which the circuit court again overruled. A jury convicted Gilmore of one count of possession of methamphetamine. The circuit court sentenced Gilmore to seven years in prison, suspended execution of the sentence, and placed her on probation for five years. Gilmore appealed and, after opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.
In her sole point on appeal, Gilmore argues the circuit court erred in overruling her motion for judgment of acquittal at the close of evidence and entering judgment and sentence against her because the State did not present sufficient evidence that she knowingly possessed the methamphetamine found in the trailer. "To determine whether the evidence presented was sufficient to support a conviction and to withstand a motion for judgment of acquittal, this Court does not weigh the evidence but rather accept [s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidences and inferences." State v. Ess , 453 S.W.3d 196, 206 (Mo. banc 2015) (internal quotations omitted). The evidence is sufficient to support a conviction when "there is sufficient evidence from which a reasonable [fact-finder] might have found the defendant guilty beyond a reasonable doubt". State v. Coleman , 463 S.W.3d 353, 354 (Mo. banc 2015). This Court "may not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences."
State v. Whalen , 49 S.W.3d 181, 184 (Mo. banc 2001) (internal quotations omitted).
A criminal offense generally consists of two rudimentary components: a tangible deed or act; and an intangible guilty mind or intent that makes the act or deed criminal. State v. Roberts, 948 S.W.2d 577, 587 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). The offense of possession of a controlled substance is no exception.
Section 195.010(34) (emphasis added).3 As this Court has previously held, possession of a controlled substance requires both a guilty mind or intent and an act of control, i.e. , 1) "conscious and intentional possession" and 2) "possession of the substance, either actual or constructive." State v. Zetina-Torres , 482 S.W.3d 801, 807 (Mo. banc 2016) (internal quotations omitted). The verdict director for the offense of possession...
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