State v. Lowe

• Decision Date: 27 November 1978
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Hayes W. LOWE, Appellant. 29840.
• Court: Missouri Court of Appeals

Page 515

574 S.W.2d 515

STATE of Missouri, Respondent, v. Hayes W. LOWE, Appellant.

No. KCD 29840.

Missouri Court of Appeals, Kansas City District.

Nov. 27, 1978.

Thomas J. Briegel, Briegel & Kimme, Union, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SHANGLER, Presiding Judge.

The defendant Hayes Lowe was convicted of the unlawful possession of more than thirty-five grams of the controlled substance marihuana and was sentenced to a term of imprisonment for three years.

The marihuana was seized from premises Lowe and his wife shared as the marital residence but from which he was absent because of a domestic tiff. The defendant contends that the evidence was not sufficient to prove possession of the marihuana in him so that the conviction may not stand.

The marihuana was taken by the police under the execution of a search warrant for the substance on premises described as an apartment on the east side of the second story of the building at 711 West Main Street in Jefferson City, Missouri. The warrant was issued by the county magistrate some minutes earlier and was executed at about 1:55 a. m. by forcible entry after the front door was not opened to the announced presence of the officers. Other officers made entry through the rear entrance. The wife of defendant, Brenda Lowe, was found on the premises alone in full dress. An immediate search disclosed two plastic bags of marihuana in a handbag suspended on the bedroom doorknob. The wife was promptly placed in arrest and removed from the premises. A subsequent more detailed search disclosed some of the substance within a plastic cigar box aside a chair and some loose marihuana in a metal pan under that chair in the living room. In a bare back room (referred in the evidence as the back bedroom) was a stalk of marihuana with leaves intact leaning against a radiator. The stalk was so situated that when the door to the room was open the plant was concealed from view. In that same back bedroom was found a closed valise on the floor which contained marihuana. In the kitchen were three potted marihuana plants on the windowsill.

Later that day, June 25, 1977, the defendant Lowe was taken into custody, warned of his rights, and then interrogated. The defendant responded that he and his wife had resided in the premises searched for about a year, but that he was last there on Friday, the 24th of June. The officer then asked Lowe "if he knew anything about the presence of marijuana in the apartment and he said, 'No.' " The defendant went on to say without further inquiry (according to the discursive account of Officer Tedeschi): "that, sure, he had smoked marijuana, you know, and didn't see any big deal. And at the same time he said he didn't want to answer any more questions." On cross-examination Officer Tedeschi acknowledged that during the interview he did not ask Lowe whether, when he visited the residence building on the 24th of June, the defendant actually went into the house.

The defendant was then formally charged with the unlawful possession of more than 35 grams of marihuana. (The quantity seized from the search was actually 115.7 grams.) The wife, Brenda, was charged with possession of under 35 grams of the substance (presumably on the basis of the marihuana found in her purse) but, according to her testimony, was eventually dismissed from the charge altogether.

The evidence for the defense came from Brenda Lowe and one Haldiman. It was the testimony of Haldiman that defendant Lowe had spent the five days with him from Monday until Saturday, June 25th (the day of the search and his arrest) where they lived together at his home in rural Hartsburg. Haldiman had known Lowe for a number of months and came to the apartment that Monday to enlist his help to move a double trailer. When he arrived, he made his presence known by the sound of the horn on his car, but heard Lowe and his wife in argument and so did not go into the apartment premises. Haldiman and Lowe left together and during that week, until Saturday, worked and lived together. Lowe was without means of transportation so they returned to the Lowe apartment on Friday, the 24th of June, at about eleven a. m. to pick up his motorcycle. They did not enter the apartment because the door was locked and Lowe was without a key. They returned directly to Hartsburg; Lowe on his motorcycle, Haldiman in his pickup truck.

The wife, Brenda, testified that at the time the police entered the apartment under the search warrant she was alone. She had separated from her husband and had been apart since the prior Monday. He left with some of his clothes and had not returned during that time. The marihuana the officers discovered on the premises all belonged to her and none to her husband. During the two weeks before they separated they spatted so that Lowe was at the apartment only intermittently. She concealed the marihuana from her husband during the times when he came. She kept the doors locked and only she had a key to the premises. The wife acknowledged that she made no effort to conceal the marihuana stalk from her husband but explained that the plant was in an off-room. According to her testimony, the stalk had been on the premises for a week before discovery by the police, the plants on the kitchen sill for only a few days before, the cigar box with the marihuana in the living room for not "very long," the valise in the off-room for "the past couple of weeks" and the pan under the living room chair had been plenished with marihuana the very day of the police search. At the time the testimony was given, Brenda had reunited with her husband.

The charge of unlawful possession of a controlled substance (in this case, marihuana) under Chapter 195, RSMo 1969, requires proof that the accused had conscious possession of the substance. State v. Burns, 457 S.W.2d 721, 725(3, 4) (Mo.1970). For the penal purposes of these statutes actual possession need not be shown but proof of constructive possession will suffice. State v. Worley, 375 S.W.2d 44, 47(4, 5) (Mo.1964). The possession which the narcotics law prohibits, therefore, is not proprietary only but also such an exercise of control over drugs not in physical possession as will give rise to an inference of possession. In either case, the possession need not be exclusive but may be shared and is culpable only where the accused knew of the contraband and had control of the substance. State v. Norris, 460 S.W.2d 672, 677(5, 6) (Mo.banc 1970); State v. Berry, 488 S.W.2d 667, 668(1-4) (Mo.App.1972).

In a case where an accused is in exclusive control of premises the law makes the inference that a contraband substance found there also rests within his possession and control. State v. Wiley, 522 S.W.2d 281, 292(20, 21) (Mo.banc 1975). This rule rests on the logic that no one other than the exclusive proprietor could control and so account for the drugs. State v. Funk, 490 S.W.2d 354, 360(8) (Mo.App.1973). In a case where premises are shared, a like inference of possession of the contraband does not arise in the absence of additional circumstances to inculpate the accused. State v. McGee, 473 S.W.2d 686, 687 (Mo.1971); State v. Berry, supra, l. c. 668(1-4). This rule rests on the logic that a shared proprietary interest in premises does not render it more likely that an accused either knows of the presence of drugs on the premises or in fact exercises control over the substances. State v. McGee, supra, l. c. 687; State v. Funk, supra, l. c. 361; Whitebread and Stevens Constructive Possession In Narcotics Cases: To Have and Have Not, 58 Va.L.Rev. 751, 763 (May, 1972).

Nor does the status of husband and wife between the defendant and Brenda found alone on shared premises amidst the marihuana give rise to a presumption that the husband had control of the substance. Those jurisdictions which continue to deem the possession of contraband by the wife that of the husband as head of the household on premises shared by them ¹ cling to the common law unity of persons of a husband and wife, a fiction the emergent status of women and contemporary mores no longer allow. The more correct analysis sees no distinction between spouses and other cotenants of premises but directs inquiry only to whether or not the accused was in a position to exercise control over the drugs found on the premises. Grantello v. United States, 3 F.2d 117 (8th Cir. 1924); Puckett v. State, 13 Md.App. 584, 284 A.2d 252 (1971); Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974); United States v. DiNovo, 523 F.2d 197 (7th Cir. 1975); Mills v. State,325 N.E.2d 472 (Ind.App.1975); Barnhart v. State, 559 P.2d 451 (Okl.Cr.1977); Annotation: Illicit Drugs Nonexclusive Possession, 56 A.L.R.3d 948 §§ 2a and 3. See also State v. Funk, supra, l. c. 363(9).

In terms of our decisional law, therefore, the question posed on appeal is whether the evidence shows a circumstance, in addition to the joint control of the apartment premises shared with wife Brenda, which renders it more probable than not that the defendant possessed the drugs taken under warrant.

The prosecution contends that seven incidences of evidence prove that the defendant had conscious, albeit constructive, possession and control of the drugs taken by the police: (1) defendant and wife Brenda lived for one year on the premises where the contraband was found; (2) defendant visited the premises the day before the seizure of the marihuana and of his arrest; (3) 115.7 grams of the substance were found throughout the apartment on the next day; (4) some of the marihuana was on the apartment premises for more than the week defendant was continuously absent from those premises; (5) testimony by wife Brenda (so it is asserted) that defendant knew of the presence of the marihuana stalk with leaves intact in the rear...