State v. McKelvey, No. 25664.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Kenneth W. Shrum
• Citation: 129 S.W.3d 456
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Russell McKELVEY, Defendant-Appellant.
• Docket Number: No. 25664.
• Decision Date: 25 March 2004

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.

[129 S.W.3d 458]

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

129 S.W.3d 459

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...