State v. Koch

Citation454 S.W.3d 370
Decision Date28 January 2015
Docket NumberNo. SD 33054,SD 33054
PartiesState of Missouri, Respondent, v. Kenny Dean Koch, Appellant.
CourtCourt of Appeal of Missouri (US)

Appellant's Attorney: Margaret M. Johnston, of Columbia, Missouri

Respondent's Attorney: Chris Koster, Attorney General and Dora A. Fichter, Assistant Attorney General, of Jefferson City, Missouri

Opinion

WILLIAM W. FRANCIS, JR., C.J./P.J.

A jury convicted Kenny Dean Koch (Koch) of the class D felony of possession of methamphetamine-related drug paraphernalia with the intent to use, in violation of section 195.233.1 Koch was sentenced, as a prior and persistent offender, to seven years in the Missouri Department of Corrections, with credit being given for all time served. In Koch's single point, he challenges the sufficiency of the evidence to support his conviction. Finding merit to Koch's claim, we reverse the judgment and remand with directions.

Facts and Procedural Background

We review the evidence in the light most favorable to the jury's verdict, rejecting all contrary evidence and inferences. See State v. Newberry, 157 S.W.3d 387, 390 (Mo.App.S.D.2005).

The evidence adduced at trial was that on April 11, 2012, Koch, and another man, Larry Rushing (“Rushing”), arrived at Michelle Swihart's (“Swihart”) mobile home around 6:30 a.m. Swihart had known Koch since 2007, but had not seen him for a long time. Both men stayed until about 10:00 a.m. Koch returned later that afternoon with Jamie Dent (“Dent”) and asked Swihart to do some laundry that he had brought in a backpack. Swihart agreed, and Dent and Koch remained at the residence while Swihart did the laundry. However, Swihart made Dent and Koch leave around 4:30 p.m. because Koch discharged a firearm outside around Swihart's children.

Sometime after 10:00 p.m., Swihart testified she was in bed with her children, in the far end of her mobile home, when she awoke hearing voices outside her bedroom window. She identified the voices as being that of Rushing and another man, Joey2 Kellis (“Kellis”). From the conversation, she believed she was about to be robbed and called 9–1–1. Swihart told the dispatcher that she was alone in her mobile home with her three children and “was being robbed.”

At 1:30 a.m. on April 12, 2012, Ripley County sheriff's deputies, Jesse Drumm (“Deputy Drumm”) and Jeremy Walter (“Deputy Walter”) were dispatched to Swihart's mobile home on suspicion of an armed burglary in progress. They arrived approximately ten minutes after receiving the call from dispatch. Upon arrival, Deputy Walter observed through the front window a man standing inside who then turned and ran toward the other end of the mobile home.

Deputy Drumm opened the front door, identified himself, and entered the residence with his gun drawn. He moved left to the kitchen area where he “staged” himself behind the refrigerator and looking down the hallway, began ordering people to come out; the living room was to his right. Deputy Drumm repeated his order to come out at least three times before Swihart came out of the back bedroom with a young child. Swihart told the officers there were three men and one woman still in the home with two firearms, and they were in the back room with her other children. Swihart appeared to be under the influence of drugs. Deputy Walter took Swihart and the child to his patrol car.

Upon re-entering the Swihart residence, Deputy Walter saw a “one[-]pot meth lab” (“meth lab”) in the living room and so advised Deputy Drumm. The meth lab consisted of chemicals mixed in a twenty-ounce Mountain Dew bottle. Deputy Walter then called for assistance at which time Sergeant Mike Barton (“Sgt. Barton”); Trooper Brian Arnold (“Trooper Arnold”), a narcotics investigator with the Division of Drug and Crime Control of the Missouri State Highway Patrol; and several other law enforcement officers responded to the scene.

Upon arrival, Sgt. Barton announced his presence and Dent came out holding Swihart's nine-month-old child. Eventually, the remaining occupants of the residence were removed: Swihart's third child, Rushing, and Koch—who was the last to come out. Before coming out, Koch was seen by an officer, looking through a back door, standing in the bathtub. The bathroom was located between two bedrooms toward the back of the mobile home and across from a small hallway leading to the back door. Koch appeared to be under the influence of methamphetamines or heavy narcotics.

Swihart consented to a search of her residence and Trooper Arnold, who had been called to assist with the meth lab, entered Swihart's home. Trooper Arnold observed in the living room the Mountain Dew bottle and a black duffle bag containing numerous items of drug paraphernalia, all of which used to manufacture methamphetamine. The Mountain Dew bottle had ingredients in it for making methamphetamine, and Trooper Arnold recognized it as a meth lab.

Trooper Arnold also found a black backpack in the “middle bedroom” of the mobile home along with firearms and substances that later tested positive for methamphetamine; the backpack also contained several items used to make methamphetamine.

Arrests were made and Koch was originally charged in Ripley County in a seven-count information. Venue was changed to Butler County, and Koch proceeded to jury trial on only three counts: attempt to manufacture a controlled substance (Count 1), in violation of section 195.211; possession of methamphetamine-related drug paraphernalia with intent to use it to produce methamphetamine (Count 2), in violation of section 195.233; and unlawful possession of a firearm (Count 3), in violation of section 571.070.3 Specifically, Count 2 charged that on April 12, 2012, Koch “possessed a one [-]pot meth lab, which was drug paraphernalia, knowing it was drug paraphernalia, with intent to use it to produce methamphetamine, a controlled substance.”

A jury trial was held on August 1, 2013. Koch did not testify, but Swihart, Dent, Officer Drumm, Trooper Arnold, and several other law enforcement officers did.

Koch filed motions for judgment of acquittal both at the close of the State's evidence and at the close of all the evidence—the trial court overruled both motions.

The jury found Koch not guilty of Counts 1 and 3, but guilty of Count 2, “Possession of Methamphetamine Related Drug paraphernalia” (the one-pot meth lab) with intent to use to produce methamphetamine. Because of Koch's status as a prior and persistent offender, the trial court sentenced Koch and sentenced him to a term of seven years in the Missouri Department of Corrections with credit being given for all time served. This appeal followed.

In his sole point, Koch contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and entering judgment on the guilty verdict, because there was insufficient evidence to establish beyond a reasonable doubt that he possessed the one-pot meth lab.

The issue for our review is whether there was sufficient evidence that Koch possessed the one-pot meth lab to support his conviction.

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005).

This inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010) (internal quotations and citations omitted).

We accept all evidence and reasonable inferences favorable to the judgment, and disregard contrary evidence and inferences. State v. Ramsey, 358 S.W.3d 589, 590 (Mo.App.S.D.2012). “However, we cannot supply missing evidence or give the state the benefit of unreasonable, speculative, or forced inferences.” Id.

Analysis

Koch was convicted of felony possession of methamphetamine-related drug paraphernalia with intent to use to produce methamphetamine. § 195.233. “Possession” is the central issue presented on this appeal.

The State was required to show that Koch “possessed drug paraphernalia, was aware of its presence, and possessed it with intent to use [it] to manufacture a controlled substance.” State v. Mickle, 164 S.W.3d 33, 47 (Mo.App.W.D.2005) ; § 195.010(34).4 “Possession” does not require exclusive control; rather, [p]ossession may ... be sole or joint. If one person alone has possession of a substance[,] possession is sole. If two or more persons share possession of a substance, possession is joint.’ State v. Watson, 290 S.W.3d 103, 106 (Mo.App.S.D.2009) (quoting § 195.010(34)). The fact that persons other than Koch had access to the area where the contraband was found does not preclude a finding of possession. State v. Keller, 870 S.W.2d 255, 260 (Mo.App.W.D.1994).

A person has actual possession of contraband where the contraband is on his person or within easy reach and convenient control. § 195.010(34); State v. McLane, 136 S.W.3d 170, 173 (Mo.App.S.D.2004). The parties agree that Koch did not have actual possession of the one-pot meth lab.

“Where actual possession is not present, the State carries the burden of proving constructive possession coupled with facts that buttress the inference of possession.” State v. Power, 281 S.W.3d 843, 848 (Mo.App.E.D.2009). A person has constructive possession of contraband where that person “has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons[.] § 195.010(34). “To demonstrate constructive possession, the State must show at a minimum the defendant had access to and control over the premises...

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1 cases
  • State v. McCauley
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Mayo 2017
    ...meet the State's burden to adduce additional evidence tying a defendant to contraband in a joint possession case." State v. Koch , 454 S.W.3d 370, 375 (Mo. App. S.D. 2015). There must be some connection between the incriminating circumstances and the contraband the defendant is charged with......

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