State v. McCleod

• Decision Date: 21 March 2006
• Docket Number: No. WD 64945.,WD 64945.
• Citation: 186 S.W.3d 439
• Parties: STATE of Missouri, Respondent, v. Jarrod R. McCLEOD, Appellant.
• Court: Missouri Court of Appeals

186 S.W.3d 439

STATE of Missouri, Respondent, v. Jarrod R. McCLEOD, Appellant.

No. WD 64945.

Missouri Court of Appeals, Western District.

March 21, 2006.

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Nancy A. McKerrow, Columbia, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney, General Jefferson City, MO, for respondent.

Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.

JOSEPH M. ELLIS, Judge.

Jarrod R. McCleod appeals from his conviction of one count of possession of a controlled substance with the intent to deliver, § 195.211.¹ For the following reasons, we reverse the trial court's judgment and remand for further proceedings.

On June 25, 2004, a Federal Express employee, Franky Vanderpool, was working at the Federal Express office in Sedalia, Missouri, when he discovered a package that was missing some paperwork and did not have an address for the intended recipient aside from the zip code. In accordance with commonly accepted practices at Federal Express, Vanderpool opened the package to see if it contained information on the address of the intended recipient. Inside, Vanderpool found some plant material packaged in shrink-wrap plastic that he thought might be marijuana. Vanderpool notified the Sedalia Police Department of this discovery.

While waiting for the police to arrive, Vanderpool placed an entry on the Federal Express web-site under the package's tracking number indicating that the package was undeliverable due to an incorrect address. Shortly thereafter, Federal Express received a telephone call indicating that Appellant was the intended recipient and providing them with a phone number at which he could be reached to arrange delivery.

Subsequently, Officers Phil Stewart and Daniel Keltner arrived at the Federal Express office to investigate the package. After examining the plant material and determining that it was indeed marijuana, the officers decided to have Federal Express attempt to deliver the package. The officers repackaged the marijuana and asked Vanderpool to call Appellant at the number that had been provided. Vanderpool called and left a message indicating that Federal Express had a package that it believed was intended for Appellant and that they needed for Appellant to pick up the package or provide them with an address for delivery.

About three or four hours later, Vanderpool received a call indicating that Appellant was coming by to pick up the package. Vanderpool called Officer Keltner, who had left the Federal Express office with the package about an hour before, and notified him that Appellant was on his way to pick up the package.

When Appellant arrived at the Federal Express office, one of the employees told Appellant that the package was still on a delivery truck and that they were waiting for it to arrive. Soon thereafter, Officer Keltner arrived through the back door to the office and gave Vanderpool the package. Vanderpool took the package up front and gave it to Appellant after he signed for it.

Appellant walked out to the parking lot and climbed into the driver's seat of a parked car. As Officer Keltner followed Appellant to the car, a woman with a small child approached the passenger side door of the car. Officer Keltner opened the driver's side door of the car and asked Appellant to step out of the car. Appellant quickly climbed over the center console, climbed out through the passenger door, and fled. While chasing Appellant, Officer Keltner repeatedly identified himself as a police officer and ordered Appellant to stop. After about five minutes, Appellant finally stopped running, and Officer Keltner caught and handcuffed him.

Officer Keltner searched Appellant and found a small plastic bag containing marijuana and rolling papers in one of Appellant's pockets. Upon searching Appellant's vehicle, Officer Keltner recovered the unopened Federal Express package, rolling papers, and some marijuana "roaches".

Subsequent testing confirmed that the material in the Federal Express package, the small plastic bag, and the roaches were indeed marijuana. The marijuana in the package weighed 222.74 grams, approximately 7½ ounces. The plastic bag contained 6.72 grams of marijuana.²

Appellant was subsequently charged by information with one count of possession of a controlled substance with intent to deliver, § 195.211, and one count of possession of drug paraphernalia with intent to use, § 195.233. Appellant was tried by jury and found guilty as charged. The trial court sentenced appellant as a prior offender to a term of five years on the first count to be served concurrently with a thirty-day term on the second count.

In his sole point on appeal, Appellant challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance with intent to distribute. Appellant contends that the evidence failed to support a finding that he knew of the nature and presence of the marijuana inside of the sealed package. He further argues that, even if there were evidence sufficient to establish his knowledge of the contents, the record does not contain evidence that he intended to deliver the marijuana to anyone.

"When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable their of fact could have found each element of the offense to have been established beyond a reasonable doubt." State v. Chavez, 128 S.W.3d 569, 573 (Mo.App. W.D.2004). "[T]he function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence." State v. Mann, 129 S.W.3d 462, 467 (Mo.App. S.D. 2004). "In making that determination, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence and inferences to the contrary." Chavez, 128 S.W.3d at 573.

Section 195.211.1 provides that "it is unlawful for any person ... to possess with intent to ... deliver ... a controlled substance." "Section 195.010(32) defines the terms `possessed' or `possessing a controlled substance' as `a person with the knowledge of the presence and illegal nature of a substance, has actual or constructive possession of the substance.'" State v. White, 28 S.W.3d 391, 398 (Mo.App. W.D.2000). Accordingly, "[t]o sustain a conviction for possession of a controlled substance with intent to deliver, the State must prove that appellant had (1) conscious and intentional possession of the substance, either actual or constructive, (2) awareness of the presence and nature of the substance, and (3) the intent to deliver the substance." State v. Sutherland, 11 S.W.3d 628, 631 (Mo.App. E.D.1999).

Appellant clearly had actual possession of the package. "Actual possession requires that a person `has the substance on his person or within easy reach and convenient control.'" White, 28 S.W.3d at 398 (quoting § 195.010(32)). The evidence reflects that Appellant went to Federal Express to retrieve the package that was sent to him, he signed for it, and he carried it to the car. The fact that Appellant had the package on his person and clearly exercised control over it establishes actual possession.³ See State v. McKelvey, 129 S.W.3d 456, 459 (Mo.App. S.D.2004).

"However, `[p]ossession without knowledge of such possession is not possession in the legal sense of that word.'" State v. Johnson, 81 S.W.3d 212, 215 (Mo. App. S.D.2002) (quoting State v. Mercado, 887 S.W.2d 688, 692 (Mo.App. S.D.1994)). Appellant argues that the record does not contain sufficient evidence to establish that he knew that marijuana was present inside the package.

While Appellant points out that there is no direct evidence that he knew what was contained in the package, "`[p]roof of a defendant's knowledge of the presence and character of a substance is normally supplied by circumstantial evidence of the acts and conduct of the accused from which it can be fairly inferred he or she knew of the existence of the contraband.'" State v. McLane, 136 S.W.3d 170, 173 (Mo.App. S.D.2004) (quoting State v. Elmore, 43 S.W.3d 421, 427 (Mo.App. S.D.2001)). Evidence that the defendant had actual possession of a controlled substance, in and of itself, gives rise to an inference that he or she had knowledge of the presence and character of the controlled substance. State v. Spraggins, 839 S.W.2d 599, 603-04 (Mo.App. E.D.1992). Thus, "[a] prima facie case of knowing possession of a controlled substance is made out by the prosecution showing the defendant's possession of the substance."⁴ State v. Bell, 719 S.W.2d 763, 765 (Mo. banc 1986). "A defense that defendant was not aware of the controlled substance in his possession merely creates a conflict in the evidence, the resolution of which is for the jury." Id. "Thus, the state's uncontradicted evidence showing defendant's possession of a packet containing marijuana constituted substantial evidence from which a jury could rationally have determined that defendant knowingly possessed the marijuana." Id.

Moreover, the inference that Appellant was aware that the package contained marijuana is further bolstered by the fact that rolling papers and a small bag of marijuana were found in Appellant's pocket and the fact that Appellant fled from Officer Keltner. See State v. Dowell, 25 S.W.3d 594, 603 (Mo.App. W.D.2000) ("[E]vidence of the defendant's contemporaneous possession of other drugs, weapons, money or other drug paraphernalia is relevant and admissible to show that the defendant knowingly and intentionally possessed the controlled substance.") (internal quotations omitted); State v. Franco-Amador, 83 S.W.3d 555, 558-59 (Mo.App. W.D.2002) (While "[f]light does not establish a defendant's guilty knowledge of a particular crime in comparison to other...