State v. Harris, No. WD

• Citation: 807 S.W.2d 528
• Decision Date: 26 March 1991
• Docket Number: No. WD
• Parties: STATE of Missouri, Respondent, v. Larry HARRIS, Appellant. 43519.
• Court: Missouri Court of Appeals

Page 528

807 S.W.2d 528

STATE of Missouri, Respondent, v. Larry HARRIS, Appellant.

No. WD 43519.

Missouri Court of Appeals,

Western District.

March 26, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 30, 1991.

James R. Brown, Bruce B. Brown (argued), Kearney, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Ronald Jurgenson (argued), Asst. Attys. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., and ULRICH and BRECKENRIDGE, JJ.

NUGENT, Chief Judge.

Defendant Larry Harris appeals from the trial court's judgment and sentence of four years imprisonment as a prior offender on a jury conviction for possession of cocaine. We affirm the judgment.

Mr. Harris contends that the trial court erred in overruling his motions for judgment of acquittal because the state failed to adduce evidence sufficient to submit the case to the jury. He argues that since the state relied on circumstantial evidence it should have borne a heavier burden of proof than that which it shouldered at trial. He further maintains that the state's evidence failed to demonstrate guilt under a theory of joint possession of a controlled substance.

On April 29, just after midnight, Park Rangers James Newberry and Thomas Jarboe discovered a pickup truck in the darkened parking lot of the Watkin's Mill State Park. A winding road led from the lot to the entrance of the park, which officially closed at ten o'clock. The headlights of their patrol vehicle revealed two figures in the truck. Shining a search light on the truck, they saw each of the figures make a quick downward motion until almost hidden from view then reappear. The rangers approached and found the defendant seated on the passenger side and Darrell Scobee on the driver's side of the pickup. Defendant Harris and his companion, Darrell Scobee, complied with the rangers' request to step out of the truck. Ranger Newberry, at the door on the driver's side shined his flashlight into the truck's interior and found three beer cans in the middle of the floorboard and, immediately in front of the passenger's seat, a plastic container with a syringe propped up against it. He placed a cigarette butt on the needle and took possession of the syringe and container, which held a "liquid powder," a slurry-like substance. None of the liquid had spilled onto the floorboard. His search of the truck also produced a copy of High Times Encyclopedia of Recreational Drugs from under the driver's seat.

Questioned by Ranger Newberry about the substance in the container, Mr. Harris said that he knew nothing about it. He said that earlier in the evening a man he knew only as "John" had joined Mr. Scobee and him at a tavern and later in drinking beer in the truck. He suggested that the objects perhaps belonged to John and that perhaps John had a diabetic condition requiring a syringe. Mr. Scobee admitted owning the High Times book.

The rangers did not arrest the men but took the syringe and container to the Smithville police station for preliminary testing. A Scott's Re-Agent Test Kit showed the substance contained cocaine. A Missouri State Highway Patrol chemist later tested the liquid and also concluded that it contained cocaine. The state charged the defendant by information under § 195.200.1(1) with possession of a controlled substance, to-wit: cocaine, a Schedule II controlled substance.

At trial, defendant Harris testified that he saw the syringe and container for the first time only after the rangers had examined the truck's floorboard. He further testified that he had failed to find John again and that Mr. Scobee had refused to testify on his behalf and, therefore, would not corroborate his testimony about John's presence in the truck earlier that night.

In addressing a challenge to the sufficiency of the evidence, an appellate court views as true the evidence of the prevailing party and all reasonable inferences drawn from it and ignores all contrary evidence and inferences. State v. Luna, 800 S.W.2d 16, 19 (Mo.App.1990). See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The court employs this standard in reviewing all evidence, direct as well as circumstantial, and must determine whether the state adduced evidence sufficient to justify its submission to the jury. Luna, supra.

Circumstantial evidence means evidence that does not directly prove a fact in issue but gives rise to a logical inference that the fact exists. Direct evidence means evidence that proves a fact in issue without other inference of that fact. State v. Newbold, 731 S.W.2d 373, 380 (Mo.App.1987).

Where the state has adduced only circumstantial evidence, the reviewing court must apply the circumstantial evidence test that Mr. Harris contends we must apply here. Under that test, the state's evidence must exclude any reasonable hypothesis of innocence. Luna, supra. Where, however, any direct evidence exists, as it does here, the test of sufficiency changes. The proper test then requires that, based on all evidence supporting the jury's verdict, including all favorable inferences taken as true, and discounting all adverse inferences, the state proved all elements of the charges by substantial evidence. State v. Craig, 642 S.W.2d 98, 101 (Mo.1982) (en banc). Newbold, supra, at 380-81.

To sustain a conviction for the possession of a controlled substance, the state must prove that the defendant knowingly and intentionally possessed the substance. State v. Bowyer, 693 S.W.2d 845, 847 (Mo.App.1985). Nevertheless, the state need prove only constructive rather than actual possession. Thus, proof of any exercise of control over the drug suffices to show possession. Id.

Where the state proves that an accused had exclusive control of a premises or a vehicle, the law infers that contraband found there rests within that person's possession and control. Id. As the defendant correctly argues, however, where joint possession of premises exists, the state must prove additional circumstances to inculpate an accused. Id.

Here, the direct evidence shows that a box containing a cocaine solution with a syringe balanced neatly on its rim rested at the feet of defendant Harris as he sat in a truck. Had Mr. Harris sat alone in the truck that night, this evidence alone could have sustained a conviction. Contrary to the state's argument, however, we address a situation involving joint possession of the contraband. Nevertheless, sufficient additional circumstances appear to prove reasonable guilt under a theory of joint possession.

The state's circumstantial evidence shows that the defendant and his companion sat in a deserted and unlighted parking lot nearly two hours after the...