State v. Hill, 68496

• Citation: 929 S.W.2d 258
• Decision Date: 23 July 1996
• Docket Number: No. 68496,68496
• Parties: STATE of Missouri, Respondent, v. Della M. HILL, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 258

929 S.W.2d 258

STATE of Missouri, Respondent, v. Della M. HILL, Appellant.

No. 68496.

Missouri Court of Appeals,

Eastern District,

Northern Division.

July 23, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1996.

Andrew H. Marty, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

Defendant Della Hill appeals the judgment entered on her convictions by a jury for felony possession of a controlled substance, § 195.202.2, ¹ and for misdemeanor possession of a controlled substance, § 195.202.3. The trial court sentenced defendant to two concurrent terms of imprisonment in the Montgomery County jail, a six month term for the felony conviction and a thirty day term for the misdemeanor conviction. We affirm.

The evidence adduced at trial, viewed in the light most favorable to the verdict, showed that, pursuant to a warrant, Montgomery County police searched defendant's home on November 5, 1992. Defendant resided in this house with her spouse and her twelve-year-old daughter. During the search, the police discovered drug paraphernalia and a small quantity of illegal narcotics in the living room, the kitchen and the master bedroom. In the living room, the police found a burned butt of a marijuana cigarette, commonly referred to as a "roach", in an ashtray on the coffee table and a "shake tray" ² under the couch. A "roach", a roach clip ³ and rolling papers were located on the tray. In the kitchen, the police found an envelope containing marijuana seeds. ⁴ In the master bedroom, the police found a "roach" in an ashtray on the headboard, a set of scales in defendant's bedside nightstand, and a compact on top of a chest of drawers. Inside the compact was a razor blade and a straw. The straw had cocaine residue caked to its inside. The total amount of marijuana found in defendant's house weighed approximately .31 grams. The quantity of cocaine residue was so minute as to be immeasurable, and the entire amount was consumed and destroyed during the test which identified it as cocaine.

In her first point relied on, defendant states the trial court erroneously denied her motion for judgment of acquittal. She argues that insufficient evidence was presented for a reasonable jury to find that she knowingly and intentionally possessed marijuana and cocaine. We disagree.

Our review is limited to a determination whether there was sufficient evidence from which a reasonable juror might have found defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). When reviewing questions of sufficiency of the evidence we view the evidence and all reasonable inferences drawn from it in the light most favorable to the verdict while disregarding contrary evidence or inferences. State v. Mallett, 732 S.W.2d 527, 530 (Mo. banc 1987). Evidence sufficient to support a guilty verdict here by definition includes evidence to support a finding that each of the elements of the crime of possession of a controlled substance existed beyond a reasonable doubt. See Grim, 854 S.W.2d at 411. To support a conviction for possession of a controlled substance, the State must prove defendant, "with the knowledge of the presence and illegal nature of a substance, [had] actual or constructive possession of the substance." § 195.010(33). The elements of the offense may be proven, partially or entirely, by circumstantial evidence. State v. Phegley, 826 S.W.2d 348, 352 (Mo.App.1992).

Defendant's argument in her first point focuses on the "knowledge of the presence" element of the crime. The State concedes that no direct evidence was adduced which would establish this element. Therefore, the issue we must confront is whether there was substantial circumstantial evidence adduced at trial to support an inference that defendant had knowledge of the presence of the marijuana and cocaine found in her house.

Defendant asserts that no such inference can be reasonably drawn when only a minuscule quantity of the controlled substance was discovered. While State v. Polk, 529 S.W.2d 490 (Mo.App.1975), relied upon by defendant, and State v. Baker, 912 S.W.2d 541 (Mo.App.1995), a case not mentioned in defendant's brief, give some credence to defendant's assertion, we find these cases distinguishable.

Both Polk and Baker were cases involving an immeasurable, or "trace" ⁵, amount of a controlled substance. The instant marijuana conviction is distinguishable from those cases because it involved an admittedly slight, less than one-third of a gram, yet measurable quantity of marijuana. Missouri courts have affirmed convictions for possession of a small but measurable quantity of a controlled substance. State v. Harrington, 679 S.W.2d 906 (Mo.App.1984)(.05 grams marijuana); State v. Camden, 837 S.W.2d 520 (Mo.App.1992)(.79 grams cocaine); State v. Young, 427 S.W.2d 510 (Mo. banc 1968)(.003 grams heroin).

Of course, the mere presence of a measurable quantity does not warrant affirmance. See State v. Ray, 747 S.W.2d 765 (Mo.App.1988)(reversed on grounds that no substantial evidence was presented which would support finding that automobile passenger was aware of presence of .04 grams cocaine underneath rear seat of car). The court will consider the totality of the circumstances when determining the sufficiency of the evidence. State v. Mischanko, 743 S.W.2d 867, 868-69 (Mo.App.1987). Here the presence of drug paraphernalia and small quantities of marijuana in several locations throughout defendant's home, including two roaches in plain view and a set of scales in defendant's bedroom nightstand give rise to a reasonable inference that she knew of the presence of the marijuana. cf. State v. Willers, 794 S.W.2d 315 (Mo.App.1990).

Unlike the measurable quantities of marijuana involved, mere "trace" amounts of cocaine were involved in the instant case. Polk and Baker both held that insufficient evidence was presented to sustain a conviction for possession of a controlled substance when the only evidence presented to support the conviction was a "trace" amount of the controlled substance. Polk, 529 S.W.2d at 494; Baker, 912 S.W.2d at 543. However, both of these opinions expressly limited their holding to the specific facts of the case thus recognizing that a person can know of the presence of mere "trace" amounts. See State v. Smith, 808 S.W.2d 24 (Mo.App.1991)(appellate court affirmed conviction for possession of "trace" amounts of heroin in a syringe found in defendant's pocket when defendant admitted to recent usage of syringe to ingest drugs).

In Polk, drug paraphernalia and five pink capsules containing "trace" amounts of heroin were discovered in a "male jewelry box" in a bedroom closet. Polk, 529 S.W.2d at 491. A witness testified that the residence in Polk was shared by four males, including defendant James Polk and that the jewelry box was owned by one of Polk's roommates. Polk 529 S.W.2d at 492. The State did not utilize an accomplice liability theory in that case. Furthermore, the court applied the circumstantial evidence rule which has since been rejected because it improperly created a higher standard of review. Grim, 854 S.W.2d at 405, 407.

In Baker, a pat-down search led to the discovery of a crack pipe on the person of Robert Baker. Baker, 912 S.W.2d at 542. No cocaine was visible on the pipe, but a chemical analysis revealed that a burnt residue on the pipe included "trace" amounts of cocaine. Baker, 912 S.W.2d at 542-43. In reversing Baker's conviction, the appellate court implied that, as a matter of law, defendant could not have known of the presence of the cocaine because no recognizable, visible "traces" remained after the drug had been burned. Baker, 912 S.W.2d at 546.

In the instant case, a visible "trace" amount of cocaine was found caked inside a straw which, along with a razor blade, was inside of a compact in plain view in defendant's bedroom. Defendant was then tried under an accomplice liability theory and the circumstantial evidence rule was not applied. Thus, the instant case is distinguishable from Polk because of the use of accomplice liability theory, the failure to use the circumstantial evidence rule, and the plain view of the contraband's repository. The instant case is distinguishable from Baker because of the chemical nature of the cocaine residue attached to the instrument of ingestion and the resultant visibility of the remaining "trace" amounts of cocaine. We hold that, under the totality of the circumstances, sufficient evidence was adduced from which a reasonable juror might have found defendant knew of the presence of cocaine in her home. The trial court did not err in denying defendant's motion for judgment of acquittal. Point denied.

In her second point, defendant contends the trial court erred in denying her motion to suppress evidence. She argues that the evidence obtained during the search of her home was tainted because the underlying search warrant was issued without probable cause. We disagree.

As the State maintains in its brief, defendant failed to preserve this alleged error in a timely and specific manner. While a timely and specific motion in limine was filed and denied, such filing does not preserve for appellate review the issue of admissibility of evidence. State v. Dayringer, 755 S.W.2d 698, 702 (Mo.App.1988). Defendant is required to make a timely and specific objection at the time the evidence is sought to be introduced. Id.; State v. Reynolds, 782 S.W.2d 793, 797 (Mo.App.1989). Here, four police officers testified about their participation in the search of defendant's residence. All four testified that they personally observed drug paraphernalia and/or controlled substances in defendant's home. No objection was made during any of this testimony. Furthermore, photographs of the observed paraphernalia were admitted into evidence without an...