State v. McKelvey

• Decision Date: 25 March 2004
• Docket Number: No. 25664.,25664.
• Citation: 129 S.W.3d 456
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Russell McKELVEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

129 S.W.3d 456

STATE of Missouri, Plaintiff-Respondent, v. Russell McKELVEY, Defendant-Appellant.

No. 25664.

Missouri Court of Appeals, Southern District, Division Two.

March 25, 2004.

Kent Denzel, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Leslie E. McNamara, Office of Attorney General, Jefferson City, for respondent.

KENNETH W. SHRUM, Judge.

After a bench trial, Russell McKelvey ("Defendant") was found guilty of possessing a controlled substance in violation of section 195.202.¹ Defendant's appeal advances two reasons for reversal. First, Defendant claims there was insufficient evidence to support his conviction for possession of methamphetamine. Second, Defendant claims that the evidence showing Defendant possessed a controlled substance should have been suppressed as the result of an illegal search and seizure. We disagree. We affirm.

FACTS

Because Defendant challenges the sufficiency of the evidence, we must accept as true all evidence favorable to the State, including all favorable inferences that may be drawn from the evidence while disregarding all evidence and inferences to the contrary. State v. Withrow, 8 S.W.3d 75, 77 (Mo.banc 1999). At 3:22 A.M. on March 7, 2001, officer Randy Robinson of the Lebanon police department was sent to a local apartment complex to investigate a complaint of a possible domestic dispute. The dispatch information was that a male and a female were arguing in the parking lot of the complex. When Robinson arrived, the couple ran away upon seeing him. Eventually, Robinson caught up with the pair and began his investigation.

The male suspect (Defendant) was known to Robinson because he had "dealt with [Defendant] other times." Upon questioning by Robinson, Defendant admitted to having a verbal argument with the female at the scene, Shannon Rogers. At this point, Robinson did not see any signs of a physical confrontation between Defendant and Rogers. As part of "normal procedure" in domestic violence investigations, Rogers was separated from Defendant so that he could not "intimidate" her and coerce her to lie.

While Robinson was speaking with Defendant, Rogers told another officer on the scene that Defendant "had not really hurt her." At this point, Robinson admitted that it did not "appear" any criminal activity had occurred or was occurring. Robinson, however, still wanted to speak with Rogers alone before he closed the investigation. Likewise, Robinson stated that another standard procedure was to run a computer check on a suspect to ensure no outstanding warrants were issued for his or her arrest. Consequently, Robinson asked Defendant for identification.

Instead of pulling identification from his pocket, Defendant retrieved a "small plastic container" that appeared to contain crack cocaine. Robinson asked what was in the container, and Defendant responded it was "nothing" and attempted to put it back into his pocket. As Robinson reached for the container, Defendant attempted to conceal the evidence by emptying the container and throwing the container and its contents to the ground. Defendant was then placed under arrest. Robinson retrieved the contents of the container, a small piece of cotton weighing.01 grams that contained unmeasurable amounts of methamphetamine. Robinson testified that methamphetamine users typically use cotton "to filter out little impurities that are in [the drug]."

Defendant's pre-trial motion to suppress evidence was overruled. At trial, the evidence was admitted over Defendant's objections. The trial court found Defendant guilty of possession of a controlled substance and sentenced him to one year in prison. This appeal followed.

Point I: Sufficiency of the Evidence

In his first point on appeal, Defendant urges reversal because the evidence was not sufficient "to allow the [judge] to reach a subjective state of near certitude that [Defendant] knowingly possessed methamphetamine." He argues the "evidence showed only that there was an invisible amount of methamphetamine on a piece of cotton that weighed [.01 grams], which is an indication at most of past use... not of present possession."

Essentially, as we understand his argument, Defendant claims that possession of drug residue does not constitute possession of the drug itself because the accused is not aware, or cannot know, of the presence of such a minute amount. We disagree.

"[I]t is unlawful for any person to possess or have under his control a controlled substance." § 195.202.1. Methamphetamine is a Schedule II controlled substance listed in the Narcotic Drug Act (§§ 195.005 to 195.425). § 195.010(5); § 195.017.4(3). Thus, for the State to make a submissible case against Defendant, it had to prove (1) Defendant was consciously and intentionally in possession of methamphetamine, and (2) Defendant was aware of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587[3] (Mo.banc 1992).

"A person has actual possession if he has the substance on his person or within easy reach and convenient control." § 195.010(32). On the other hand, proof 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. Rivers, 554 S.W.2d 548, 551 (Mo.App.1977).

Here, Defendant was in actual possession of the controlled substance. The cotton ball containing methamphetamine was found in a container in Defendant's pocket. That is actual possession under section 195.010(32). Moreover, ample circumstantial evidence was adduced to prove Defendant intentionally, knowingly, and consciously possessed methamphetamine. For instance, Defendant ran from the police when he first saw Robinson pull into the apartment complex. State v. Harris, 807 S.W.2d 528, 530 (Mo.App.1991) (flight from authorities can be used as evidence of consciousness of guilt). Additionally, Robinson testified that Defendant was visibly "apprehensive." State v. Mishler, 908 S.W.2d 888, 892[7] (Mo.App.1995) (visible nervousness can be used to show a defendant's awareness of the controlled substance). Most importantly, Defendant attempted to conceal and destroy the evidence by throwing the cotton ball and the container to the ground. State v. Powell, 973 S.W.2d 556, 559 (Mo.App.1998); Mishler, 908 S.W.2d at 892[8] (both cases holding that efforts of concealment or hiding drugs can be used to show consciousness of guilt).

In sum, we find that the direct and circumstantial evidence presented here was sufficient for a reasonable finder of fact to conclude beyond a reasonable doubt that Defendant intentionally and knowingly possessed methamphetamine and was aware of the presence and nature of the substance. Purlee, 839 S.W.2d at 587[3].

In so deciding, we have not ignored cases cited by Defendant, namely, State v. Baker, 912 S.W.2d 541 (Mo.App.1995), and State v. Polk, 529 S.W.2d 490 (Mo.App. 1975). Defendant uses those cases to argue that a person can never be convicted of possessing a controlled substance if the drug is invisible and the quantity thereof is immeasurable. Defendant has misinterpreted the holdings of those cases, however, as that is simply not the law in Missouri.

First, we note that Baker and Polk specifically limited their respective holdings to the facts of the cases before them. See Baker, 912 S.W.2d at 543; Polk, 529 S.W.2d at 494. Second, both cases dealt with the question of whether the defendant knowingly, intentionally, and consciously possessed the controlled substance.

In this regard, Polk held that trace amounts of heroin (visible, but not weighable), found in a jewelry box in the defendant's apartment, were insufficient to show a knowing and conscious possession. Id. at 492. The court noted that the most that could be said of this evidence was that someone at some time possessed heroin in the apartment, i.e., the evidence only indicated past use not present possession. Id. at 493. Most importantly, the prosecution did not present any incriminating circumstantial evidence tending to show consciousness of guilt. Therefore, "the only evidence" tending to show intentional, knowing, and conscious possession was a minuscule amount of heroin. Id. Those are not the facts of this case. The record here had substantial other evidence, in addition to the trace amounts of methamphetamine, tending to show Defendant's conscious, knowing, and intentional possession; consequently, our holding does not conflict with Polk.

Likewise, our holding does not conflict with Baker, wherein the court was faced with similar facts as in Polk. Baker was arrested at 7:00 P.M. and admitted to smoking crack cocaine at 4:00 P.M. Baker was found in possession of a crack pipe with an invisible and immeasurable amount of cocaine residue burnt thereon. Baker claimed to have "just bought" the crack pipe from "a guy on Messanie" when he was arrested. Baker, 912 S.W.2d at 542. The Baker court thoughtfully discussed the prior case law on the subject, including Polk, and from that concluded that the only evidence of present possession was the crack pipe containing residue. Id. at 545. As such, the State failed to prove Baker knowingly, intentionally, and consciously possessed cocaine. As in Polk, there were no incriminating circumstances (as there are here) indicating Baker knew he possessed cocaine.

Had Defendant not run from the police, not been visibly apprehensive, and not tried to conceal the drug, his reliance on Polk and Baker would have been well-founded. On this record, however, such reliance is misplaced. Instead, another line of cases governs, namely those which hold that (1) a quantitative analysis is not a prerequisite to proving possession of a controlled substance and (2) the State can prove possession by showing the substance was identifiable, by chemical analysis, as a controlled substance. See State v. Mayabb, 43 S.W.3d...