State v. Mercado, 19050

• Decision Date: 06 October 1994
• Docket Number: No. 19050,19050
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Juan MERCADO, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 688

887 S.W.2d 688

STATE of Missouri, Plaintiff-Respondent, v. Juan MERCADO, Jr., Defendant-Appellant.

No. 19050.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 6, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 28, 1994.

Application to Transfer Denied

Dec. 20, 1994.

William J. Fleischaker, Roberts, Fleischaker, Williams & Powell, Joplin, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Judge.

Juan Mercado, Jr., (defendant) was convicted, following a jury trial, of the class B felony of trafficking drugs in the second degree. § 195.223.7(1). ¹ The trial court found defendant to be a prior and persistent offender and sentenced him to imprisonment for a term of 25 years pursuant to § 558.016.7(2). This court reverses the judgment of conviction due to insufficiency of the evidence and directs the trial court to enter judgment of acquittal and order defendant discharged.

On March 16, 1993, Joplin Police Officer Pete Box stopped a brown GMC van for following another vehicle too closely. The van was traveling along Interstate 44 (I-44) in Newton County, Missouri. It was registered to Augustine Rodriguez, the driver of the vehicle. Defendant was a passenger. He was lying on a seat that converted into a bed in the back of the van.

Officer Box attempted to speak to Rodriguez. Defendant explained that Rodriguez did not speak English and offered to translate. The officer told defendant that he needed to see Rodriguez's driver's license. Defendant replied that Rodriguez did not have a driver's license. Officer Box asked for identification. Defendant spoke to Rodriguez, and Rodriguez handed the officer a resident alien's identification card.

Officer Box asked defendant if he had a driver's license. He told defendant if he did to step back to his car. Defendant acknowledged that he had a license and accompanied the officer to the car.

Defendant told Officer Box that he was helping Rodriguez drive the van; that they had come from San Antonio. Defendant did not know Rodriguez's destination.

Officer Box explained "about the problem" of I-44 being used to transport illegal weapons and narcotics from the south to the north. The officer asked if defendant and Rodriguez had anything like that in the van. Defendant answered that they did not. Officer Box asked if he could look in the vehicle for guns and drugs. Defendant told Officer Box he could.

The officer asked defendant to tell Rodriguez about the problem of illegal guns and drugs along I-44 and to ask Rodriguez if there was anything like that in the van. Defendant spoke to Rodriguez. Rodriguez shook his head in a negative manner and said something in Spanish.

Officer Box requested defendant to ask Rodriguez if he could look in the van for those types of items. Rodriguez spoke to defendant in Spanish and gestured toward the van. Defendant told the officer that Rodriguez said to go ahead.

Officer Box called for assistance. While he waited for another officer to arrive, he opened the side doors of the van and looked inside. The van had four captain's chairs and a rear seat that converted into a bed--the seat on which defendant was lying when the van was stopped. Officer Box thought the carpet and seats showed normal wear. He noticed that the side panels on the doors and walls were covered with "real new looking material." Officer Box then went to the rear of the van. As he was opening one of the rear doors, Officer Goodwin arrived to assist.

The wall panels of the van were attached with screws. The paneling by the rear door did not reach the carpet--there was "a [sic] inch and a half or so" between the bottom of the panel and the carpet. The panel was loose next to the floor of the van. The threads on a screw had either been stripped or the screw was not completely tightened. Officer Box explained, "I stuck my hand under the panel, and I could feel an object--a taped object. I could feel the lines of tape, and it gave when I pushed on it."

Officer Box asked Officer Goodwin to check what was there. He felt behind the panel with his hand and then moved so that his nose was about six inches from the panel. He smelled marijuana.

Officer Box pulled back the panel. Officer Goodwin reached behind the panel and pulled out a wrapped package. The officers opened the package and inspected its contents. They identified the contents as marijuana. Defendant and Rodriguez were arrested.

The officers took the van to the police station. After arriving at the police station, the interior panels were taken from the van by removing the screws that attached them to the sides and doors of the vehicle. Packages of marijuana were behind the panels. The packages were shaped to conform to the recesses where they had been placed. Almost 200 pounds of marijuana was removed from the van. ²

There were bags of clothing behind and under the rear seat of the van. The clothing was in a black suitcase, a blue gym bag, a blue hanging bag and a brown paper sack.

At the close of the state's evidence, defendant moved for judgment of acquittal on the basis that there was not sufficient evidence from which reasonable jurors could find that defendant possessed more than 30 kilograms of marijuana. The trial court denied defendant's motion. Defendant rested without presenting further evidence and renewed his motion for acquittal. The trial court again denied the motion.

Defendant presents four points on appeal. The first point is dispositive. The remaining points will not be addressed.

Point I asserts the trial court erred in denying defendant's motion for acquittal because "there was not sufficient evidence from which reasonable individuals could conclude that [defendant] was guilty ... in that, assessed in the light most favorable to the state, the evidence only shows that [defendant] was a passenger in a van where a large quantity of marijuana was found." Defendant contends there was no evidence that he knew the marijuana was there or that he directly or constructively exercised dominion over it.

In order to prove possession of a controlled substance, "the State must prove (1) conscious and intentional possession of the substance, either actual or constructive, and (2) awareness of the presence and nature of th[e] substance." State v. Fuente, 871 S.W.2d 438, 442 (Mo. banc 1994). See also State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992); State v. Gulley, 776 S.W.2d 492, 494 (Mo.App.1989). "Actual possession is not necessary to sustain a conviction, constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." State v. West, 559 S.W.2d 282, 284 (Mo.App.1977).

"Both possession and knowledge may be proved by circumstantial evidence." State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). If there is joint control over premises where drugs were found, further evidence is necessary to connect an accused with the drugs. Id. at 343-44. Whether a defendant has access to the area where drugs were found is a basis for finding constructive possession. State v. West, supra.

The only direct evidence connecting defendant with the drugs he is accused of possessing is that he was a passenger in the van and had been assisting the owner in driving the van. The marijuana was not visible upon entry into the van. It was concealed behind wall panels that were held in place by screws connecting the panels to the wall of the van. There was no discernable odor in the passenger compartment of the van, either emitted by the marijuana or something used to mask an otherwise pungent smell.

When the van was stopped by Officer Box, defendant was lying on the rear seat. There was approximately two and a half to three feet distance between the edge of the seat and the loose panel that Officer Box later discovered. When Officer Goodwin arrived to assist Officer Box, he got to within six inches of the loose edge of the panel before he detected an odor that he believed came from marijuana.

The question presented is whether there were sufficient facts to buttress an inference that defendant's presence in the van and his assistance in driving the van demonstrated knowledge of the marijuana and an awareness of its nature. State v. Fuente, supra; State v. Purlee, supra; and State v. West, supra, are helpful in analyzing the evidence in this case.

In Fuente a highway patrol officer stopped a car for speeding on an interstate highway--the car was traveling 65 miles per hour in a 55 mile-per-hour zone. When the officer approached the vehicle, she smelled marijuana. In addition to the driver, one passenger was in the vehicle. The officer had the driver sit in her patrol car while she checked his driver's license and the registration of his vehicle. The vehicle was registered in Florida in the name of the driver's mother.

While waiting for the registration check, the officer asked if she could search the vehicle. The driver declined to consent to a search. The officer used her radio to request the assistance of a canine unit. The officer asked the driver what the dogs would "hit on." 871 S.W.2d at 439. He told her all he had was a pipe and a little baggie. At the officer's request, the driver retrieved the items from his vehicle. The "little baggie" contained marijuana. A further search of the vehicle disclosed 45 pounds of marijuana in a blue bag in the rear of the vehicle--a Chevrolet Blazer.

The defendant in Fuente was found guilty of possession of more than 35 grams of marijuana. On appeal the court held that there was "overwhelming" evidence to support the conviction. The evidence the court recited included that the vehicle was registered in the name of the driver's mother "which creates a clear implication that [the driver], not [the passenger], was in control of the vehicle." Id. at 442.

The driver's...