State v. Johnson

• Decision Date: 11 June 1991
• Docket Number: No. 55792,55792
• Citation: 811 S.W.2d 411
• Parties: STATE of Missouri, Respondent, v. Maxwell JOHNSON, Appellant.
• Court: Missouri Court of Appeals

Page 411

811 S.W.2d 411

STATE of Missouri, Respondent, v. Maxwell JOHNSON, Appellant.

No. 55792.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 11, 1991.

Richard P. Hereford, Asst. Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Appellant Maxwell Johnson appeals after a jury trial from his convictions of one count of having under his control cocaine, a controlled substance under Schedule II, Section 195.020 RSMo 1986 (repealed 1989) and one count of receiving stolen property, Section 570.080 RSMo 1986. He was sentenced as a Class X and prior and persistent offender to a term of twenty years imprisonment on the controlled substance count, and fifteen years imprisonment on the stolen property count to run consecutively.

Since defendant contests the sufficiency of the evidence in one of his four points on appeal, we consider the facts and all reasonable inferences in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Spiller, 778 S.W.2d 825, 826 (Mo.App.1989).

In March of 1988, defendant resided at 211 Meacham, Kirkwood, Missouri, with the following individuals: Celeste Johnson, his mother; Linda Johnson, his sister; Trate and Albert Johnson, his nephews; and Henderson Woods, Celeste Johnson's live-in companion. In early March, police officers received information from a confidential informant that cocaine and stolen property were present at defendant's residence. In response to this information, the police obtained a search warrant and searched the house on March 3, 1988.

Prior to the search, the informant sketched a map of the interior of the house, indicating to the police which room was defendant's bedroom. Detective Thomas Lacey, immediately upon entry to search the house, verified the informant's sketch by asking the location of defendant's bedroom. Defendant's mother directed the police to the same room the informant indicated in his sketch.

On top of a dresser in that room, the police found a cigar box containing forty-eight folded packets of a white powdery substance which subsequent drug analysis testing showed to be cocaine. A bottle labeled "inositol" and an Excedrin bottle were also sitting on top of the dresser. According to laboratory analysis, both bottles contained inositol, a white powdery substance commonly used as a mix with cocaine.

In a box inside the top dresser drawer, the police discovered twenty-two additional packets of a white powdery substance which later laboratory testing also proved to be cocaine. Seeds, identified by forensic scientist Bryan Hampton to be marijuana seeds, and a letter, addressed to defendant at 211 Meacham, were also found in the drawer. In addition, the police found fifteen bags of vegetative matter, later tested and proven to be marijuana, in the pocket of a jacket lying on his bedroom floor. The evidence at trial established that this jacket was not owned by defendant.

As the search was in progress, defendant stepped out of a closet in his bedroom. He had been hiding under a pile of clothes in the closet for approximately thirty to forty-five minutes. When defendant exited the closet, he was holding a fistful of money. Defendant also had a coin purse filled with money in his front pocket. The money totalled seven hundred seventy-four dollars.

An antique gun was found on the top shelf of the closet where defendant had hidden. The police also discovered an RCA 100 color television set in the bedroom. Both items were identified as items reported stolen during a burglary of the residence of Mr. Richard Roundtree of Wentzville, Missouri. During trial, Mr. Roundtree identified both the television set and gun as items stolen from his home on January 15, 1988. The television set had his wife's driver's license number engraved on its surface. Mr. Roundtree testified that the antique gun was a collector's item, valued at five hundred dollars or more.

Three triple-beam scales were also discovered in the bedroom. One scale was found inside the top dresser drawer where the marijuana seeds, twenty-two packets of cocaine, and the letter addressed to defendant were discovered. The other two scales were on the top shelf of the closet where defendant had hidden. Other items found in the bedroom included a razor which appeared to have a white powder on its blade and a spoon, called a "coke-spoon", used to ingest or separate amounts of cocaine. The spoon also had a white powdery substance on its surface.

An entrance to the attic was discovered immediately outside of the bedroom. Inside the attic entrance, the police found a purple Crown Royal bag. A plastic bag containing a white powdery substance, subsequently tested and proven to be cocaine, was inside the purple bag.

Defendant raises four points on appeal contending that the trial court erred in: (1) permitting the prosecution to introduce, over his objection, evidence regarding marijuana that was seized during the police search that also yielded the cocaine that defendant was charged with possessing. In particular, he contends introduction of the marijuana violates the rule against admissibility of evidence of other crimes unconnected with the offense on trial; (2) overruling his objection and request for a mistrial when the state made an indirect reference to defendant's failure to testify, thereby implying that his silence was suggestive of guilt; (3) denying his motion for acquittal at the close of the state's case and at the close of all the evidence because there was insufficient evidence to sustain a conviction; and (4) allowing the state to amend the information in lieu of indictment on the day of trial. We affirm.

For the sake of clarity, we discuss defendant's points in a different order than presented in his brief. Initially, we consider defendant's third point that the trial court erred in denying his motion for a judgment of acquittal at the close of the state's case and at the close of all the evidence because the evidence was insufficient to support a verdict. We note that because the defendant presented evidence in his own behalf after the state rested, he waived any claim of error as to the court's denial of his motion for a judgment of acquittal at the close of the state's case. State v. Davis, 753 S.W.2d 25, 27 (Mo.App.1988). Accordingly, we will consider only the denial of defendant's motion for acquittal at the close of all the evidence.

Defendant asserts the evidence was insufficient to sustain a conviction on Count I, having under his control cocaine, because there was insufficient proof that he exercised any control over the cocaine police seized during the search. In reviewing the sufficiency of the evidence, the function of this court is not to weigh the evidence, but only to determine whether there is sufficient evidence from which reasonable persons could find guilt. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

Actual, physical possession of a controlled substance is not required to establish the element of control. State v. Corley, 628 S.W.2d 380, 382 (Mo.App.1982). Rather, constructive possession proven by means of circumstantial evidence may suffice. Id. Exclusive control of the premises on which controlled substances are found raises an inference of possession and control of those substances. State v. Moiser, 738 S.W.2d 549, 558 (Mo.App.1987). Even where joint control exists constructive possession will suffice so long as there is other evidence to connect defendant to the drugs. Id.

Here, the record reveals that defendant was not in actual, physical possession of cocaine when arrested. Defendant occupied the residence at 211 Meacham with several others at the time of the search. He did not exercise exclusive control over the premises where the cocaine was discovered. Because neither actual possession nor exclusive control were evident, the question then becomes whether, in addition to defendant's joint access to the premises, further evidence establishes defendant's control of the cocaine.

Additional evidence which may suffice to connect defendant to the cocaine includes: mixture of personal belongings with the substance, State v. Dethrow, 674 S.W.2d 546, 550 (Mo.App.1984); routine access to an area where controlled substances are kept, State v. Keeper, 787 S.W.2d 887, 890 (Mo.App.1990); and a defendant's flight or attempt to evade capture upon realizing the presence of police, State v. Kerfoot, 675 S.W.2d 658, 662 (Mo.App.1984).

In Dethrow, 674 S.W.2d at 546, a police search of Dethrow's residence revealed controlled substances inside a jewelry box. The box also contained a traffic ticket issued to Dethrow, an insurance check payable to Dethrow, and jewelry owned by Dethrow and another individual. This court found that defendant's belongings mixed with the drugs was sufficient to establish the element of control. Id. at 550.

As in Dethrow, defendant's personal belongings were mixed with the controlled substance. Police discovered a letter addressed to defendant in the same drawer as the cocaine. Marijuana seeds were also found in the drawer. Although, under Dethrow, this evidence alone is sufficient to establish defendant's control over the cocaine, additional evidence exists which links defendant to the controlled substance. Defendant had routine access to the area where the cocaine was primarily discovered. Both the confidential informant and Celeste Johnson, defendant's mother, identified the room where the cocaine was found as defendant's bedroom. Moreover, even if the room where the drugs were discovered was the family room, as defendant argues in his brief, it is clear that defendant had routine access to the area. See Keeper, 787 S.W.2d at 890. Defendant also attempted to evade the police by hiding under a pile of clothes in the closet for approximately thirty to forty-five minutes...