State v. Ingleright, 16113

• Decision Date: 23 March 1990
• Docket Number: No. 16113,16113
• Citation: 787 S.W.2d 826
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Douglas INGLERIGHT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 826

787 S.W.2d 826

STATE of Missouri, Plaintiff-Respondent, v. Douglas INGLERIGHT, Defendant-Appellant.

No. 16113.

Missouri Court of Appeals,

Southern District,

Division Two.

March 23, 1990.

Motion for Rehearing or to Transfer

Denied April 13, 1990.

Application to Transfer Denied May 15, 1990.

S. Dean Price, Sp. Public Defender, James R. Schumacher, Asst. Public Defender, Springfield, for defendant appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff respondent.

FLANIGAN, Presiding Judge.

The trial court, after a nonjury trial, found defendant Douglas Ingleright guilty of the following three felonies: possession of lysergic acid diethylamide (LSD), § 195.020 ¹ (Count I), possession of phenobarbital, § 195.240 (Count II), and possession of less than 35 grams of marijuana, § 195.020 (Count III). The court sentenced defendant to 10 years' imprisonment on Count I, 10 years' imprisonment on Count II, and 5 years' imprisonment on Count III, the sentences to run concurrently. Defendant appeals.

Defendant's first point is that the evidence is insufficient to support the conviction "in that there was insufficient evidence that defendant knowingly and intentionally possessed the controlled substances and that defendant was aware of the nature and presence of the controlled substances."

The findings of the trial court in a jury-waived criminal case have the force and effect of a verdict of a jury. Mo. Const. art. I, § 22(a); State v. Northern, 472 S.W.2d 409, 411 (Mo.1971). In determining the validity of defendant's point, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the finding of guilt, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217, 218 (Mo.1972). All evidence unfavorable to the state must be disregarded. State v. Unverzagt, 721 S.W.2d 786 (Mo.App.1986).

"To sustain a conviction for possession of a controlled substance under § 195.020, the state must prove that the defendant knowingly and intentionally possessed the proscribed substance. To meet this burden, conscious, intentional possession, either actual or constructive, must be established.... The state must also show that the defendant was aware of the presence and nature of the substances in question.... Both possession and knowledge may be proved by circumstantial evidence. If actual possession has not been shown, 'constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance.' ... Exclusive control of the premises on which controlled substances are found raises an inference of possession and control of those substances."

State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). (Authorities omitted). The Barber principles also apply to offenses under § 195.240. State v. Robinson, 664 S.W.2d 543, 546[6, 7] (Mo.App.1983).

Defendant was charged as a persistent offender, § 558.016, and the court found him to be one. One of his three prior convictions was a 1987 conviction for possession of marijuana.

Two highway patrolmen, Trooper Cooper and Trooper Shultz, figured in the apprehension of defendant on October 18, 1987, the date of the offenses. ² The two uniformed troopers, each driving a marked patrol car, were patrolling different segments of Highway I-44. Trooper Shultz was in Webster County and Trooper Cooper was east of Shultz in Laclede County.

Trooper Shultz observed two vehicles traveling east in the eastbound portion of I-44 at a speed which he estimated at 100 miles per hour. The rear vehicle of the two speeding vehicles was a Buick operated by defendant and occupied solely by him.

Trooper Shultz crossed the median and chased the two speeders. Shultz caught up with the Buick and signalled to defendant to pull over to the right. Shultz testified that defendant was looking at Shultz when that signal was given. Shultz testified, "Since defendant had spotted me, I wanted to go ahead and stop the front vehicle, which I did." Shultz chased the first speeding vehicle at speeds up to 80 miles per hour. Shultz said, "As soon as the other one started slowing down and pulling over on the shoulder, the defendant pulled into the left-hand passing lane behind a truck and went right on by me."

Shultz had previously notified Trooper Cooper by radio of the description of the Buick and its license number. Cooper saw the Buick and crossed the median in pursuit of it. Defendant left I-44 on the ramp at Route C and pulled into the parking lot of a convenience store.

Cooper informed defendant that he was stopped for a speeding violation which occurred earlier in Webster County. Defendant told Cooper he knew he was speeding and said he was confused about whether Trooper Shultz wanted him to stop.

Defendant gave Cooper oral and written consent to search the Buick. Cooper found marijuana seeds on the carpeted floorboard near the base of the driver's seat. Under the driver's seat, Cooper found a plastic plate which had the odor of marijuana smoke. Defendant, who had been placed under arrest and given the Miranda warnings, told Cooper that the Buick belonged to his girl friend with whom he had lived for seven months.

During his search, Cooper found some syringes in the trunk which were about 12 inches from a bag containing defendant's clothing. Trooper Shultz arrived and participated in the search. In the middle of the front seat was a console, the lid of which served as an elbow rest for the driver. The lid was 12 inches long and 4 inches wide and was hinged. Beneath the lid was a black tray which was 12 inches long, 4 inches wide, and 4 inches deep. The tray "just drops in and slips right out." Underneath that tray, Trooper Shultz found LSD, phenobarbital, and marijuana. The state adduced expert testimony on the nature of each of the controlled substances.

For the reasons which follow, this court holds that the evidence is sufficient to support the conviction. In State v. Ingleright, 782 S.W.2d 147 (Mo.App.1990), mentioned in footnote 2, this court affirmed defendant's conviction for possession of drug paraphernalia which consisted of the syringes found in the locked trunk near defendant's clothing. That case, of course, arose out of a separate trial with its separate record, but that record contained substantially the same evidence as the instant record. In Ingleright, this court found the following to be inculpatory circumstances supporting the conviction: (1) defendant was present in the car where the syringes were found; (2) defendant was alone in the car and had had exclusive control of it for some time; (3) defendant evaded the first attempt [by Trooper Shultz] to stop his vehicle; and (4) the syringes were found in the trunk with defendant's clothing, "thus permitting an inference that defendant knew the syringes were in the trunk."

Each of the foregoing factors is present here. It is true that the three controlled substances upon which the three counts of the instant information were based were found in the console and not in the trunk. They were, however, within reach of the driver. Ready access to the area in which the drugs are found may be an incriminating factor. State v. West, 559 S.W.2d 282, 284 (Mo.App.1977).

There was no showing with respect to the ownership of the Buick. Trooper Cooper quoted a hearsay statement of defendant to the effect that the Buick was owned by defendant's girl friend. Although defendant was the sole occupant of the Buick, there was no showing that he was the owner.

In State v. Virdure, 371 S.W.2d 196 (Mo.1963), defendant was the owner and sole possessor of his automobile when marijuana was discovered in it by officers. The court held that from those facts, and the inferences to be deduced therefrom, the jury could reasonably find, as it did, "that defendant knew the narcotic drug was there upon and in his property." Id. at 201.

Some courts have held that the sole occupancy of a vehicle, although not by the owner, supports a finding of possession of contraband found in it. Byars v. State, 259 Ark. 158, 533 S.W.2d 175, 184 (1976); Reed v. State, 186 Ga.App. 539, 367 S.E.2d 809 (1988); McGaskey v. State, 451 S.W.2d 486 (Tex.Crim.App.1970); State v. Potts, 1 Wash.App. 614, 464 P.2d 742 (1969); State v. Dodd, 8 Wash.App. 269, 505 P.2d 830, 833[6, 7] (1973).

In State v. Harrington, 679 S.W.2d 906 (Mo.App.1984), defendant was the sole occupant of a vehicle owned by his father. This court held that a conviction for possession of marijuana was supported by the evidence of defendant's exclusive possession of the vehicle, coupled with evidence that he attempted to flee, had easy access to marijuana which was under the front seat, and had marijuana products on his person. The latter factor, said the court, "tends to confirm his possession and awareness of the original cache."

In State v. Dusso, 760 S.W.2d 546 (Mo.App.1988), defendant was the driver, and apparently the sole occupant, of a car which he did not own. Defendant's conviction for possessing cocaine, found concealed in the sleeve of a jacket underneath the driver's seat, was held to be supported by the evidence.

Another factor bearing on the issue of defendant's knowledge and intent with respect to the presence of the controlled substances in the console is his prior marijuana conviction.

"Evidence of commission by defendant of crimes separate and distinct from the crime for which he is charged is generally inadmissible.... But such evidence is generally admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the...