State v. Mishler, 19848

• Decision Date: 01 November 1995
• Docket Number: No. 19848,19848
• Citation: 908 S.W.2d 888
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth MISHLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 888

908 S.W.2d 888

STATE of Missouri, Plaintiff-Respondent, v. Kenneth MISHLER, Defendant-Appellant.

No. 19848.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 1, 1995.

Emmett D. Queener, Office of the State Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GARRISON, Judge.

Kenneth Mishler (Defendant) appeals his jury conviction and three-year sentence for the class C felony of possession of a controlled substance in violation of § 195.202, RSMo 1994. He alleges that the evidence was insufficient to support the conviction and that the State was permitted to make improper remarks during closing argument.

At 9:00 p.m. on December 17, 1993, Granby police officer Scott Whitman stopped a 1985 Pontiac for speeding and failing to keep to the right. Defendant was the driver and sole occupant of the vehicle, which was registered to a person Defendant identified as the grandmother of a friend from whom he had borrowed the car six hours earlier. Two other officers arrived while Officer Whitman was awaiting the results of a computer check concerning the validity of Defendant's driver's license and the existence of any outstanding warrants. When Officer Whitman went back to speak with the other officers, he noticed that Defendant leaned over toward the passenger side of the vehicle so that he was completely out of sight. The officer went back to the Pontiac and asked Defendant to "stay still" while he waited for the computer verification. He also asked Defendant to relax because he was "very nervous, and acting hyperactive." Whitman returned to the other officers, but noticed that Defendant had again leaned over toward the passenger side of the vehicle, and again went completely out of sight. Whitman "ran back up to [Defendant's] car, and ... demanded that he stay in a position that [he] could at all times see him."

One of the other officers testified that Defendant seemed extremely nervous while they were waiting for the computer check to be completed. He also testified that when Defendant got out of the car, he stood with his arm on the door as if he did not want the officers to get into the car.

When the computer check revealed that Defendant's driver's license was valid, he was told he could leave. He told the officers, however, that there was a warrant for his arrest in Kansas for non-support which he was sure would eventually be located on the computer. When the computer check verified that information, and Defendant was placed under arrest, he asked what they were going to do with the car. He also closed and locked the door to the vehicle and was adamant about his wife getting the keys and coming after the car.

The car was inventoried after Defendant was taken into custody, and a small bag of white powder was found in a "slit" between the driver and passenger seats. The location where the bag was found was also described in the testimony as under the driver's seat. The powder was identified as approximately four grams of a mixture containing methamphetamine, a controlled substance.

In his first point relied on, Defendant contends that the trial court erred in overruling his motions for judgment of acquittal and sentencing him because the evidence was insufficient to support the conviction. In reviewing Defendant's conviction, this court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). In reviewing a challenge to the sufficiency of the evidence, we do not weigh the evidence but determine only whether there was evidence from which reasonable persons could have found the defendant guilty. State v. Thomas, 737 S.W.2d 247, 250 (Mo.App.S.D.1987).

Section 195.202 states, in part, "it is unlawful for any person to possess or have under his control a controlled substance." It further provides, with an inapplicable exception, that any person who violates the statute with respect to any controlled substance is guilty of a class C felony.

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 the substance. State v. Fuente, 871 S.W.2d 438, 442 (Mo. banc 1994); State v. Garrison, 896 S.W.2d 689, 691 (Mo.App.S.D.1995). Both possession and knowledge can be proved by circumstantial evidence. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

Defendant cites State v. Ingleright, 782 S.W.2d 147, 149 (Mo.App.S.D.1990), for the proposition that "conscious possession requires something more than the presence of the accused in the automobile where the contraband was found...." This element of the offense may be satisfied by other factors or circumstances. See State v. Villa-Perez, 835 S.W.2d 897, 901 (Mo. banc 1992); State v. Ingleright, 782 S.W.2d at 149. For instance, constructive possession will suffice to support a conviction when other facts support an inference of defendant's knowledge of the presence of the substance. State v. Garrison, 896 S.W.2d at 691; State v. Mercado, 887 S.W.2d 688, 690-91 (Mo.App.S.D.1994). See also State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992). "The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control." Id. See also State v. Ingleright, 782 S.W.2d at 149.

The State presented sufficient evidence in the instant case from which reasonable jurors could have found that Defendant knowingly possessed the methamphetamine in question. Although Defendant did not own the vehicle in which the drugs were found, he had been in possession of the car for six hours that day and had sole possession of the vehicle at the time of the stop. The drugs were discovered either between the front seats or under the driver's seat, either of which he clearly had access to. A defendant's access to an area where drugs are found is an incriminating fact. State v. Hernandez, 880 S.W.2d 336, 339 (Mo.App.W.D.1994).

Officer Whitman testified that Defendant was "very nervous, and acting hyperactive" during the stop. Visible nervousness is probative of defendant's awareness of the controlled substance. State v. Hernandez, 876 S.W.2d 22, 24 (Mo.App.E.D.1994). Although visible nervousness alone is not sufficient evidence from which reasonable jurors could find a defendant guilty, it is one incriminating fact which will support a conviction if consistent with the totality of the circumstances. State v. Mercado, 887 S.W.2d at 692; State v. Hernandez, 880 S.W.2d at 339.

Officer Whitman also testified that when he left the Pontiac to talk with the other officers, Defendant leaned over toward the passenger side of the vehicle and went completely out of sight. Although he was told to remain still and in full view, Defendant did the same thing again when the officer left the Pontiac a second time. Additionally, Defendant later positioned himself in the car's open door as if he did not want the officers to get into the car. When he was placed under arrest, he was concerned about what was going to be done with the car and wanted the officers to bring his wife to the scene so she could take the car. He also locked the car himself, although all that was found inside, in addition to the drugs in question, was a bottle of baby powder and an "As Is Warranty" sticker used by car dealers.

Action resembling an effort to conceal constitutes evidence reasonably implying consciousness of guilt. State v. Harris, 807 S.W.2d 528, 530 (Mo.App.W.D.1991). In Harris, the defendants, when caught in the rangers' search lights, quickly bent forward, almost disappearing. Cocaine was found on the floor directly in front of the passenger seat. The court held that "[a] reasonable person could conclude from that evidence that the defendant ... when discovered ... tried to hide the syringe and container." Id. In State v. Hernandez, 876 S.W.2d at 23, a deputy sheriff observed defendant place his hand in his pocket, remove it in a fist, and reach toward the center section of the seat. Defendant then thrust his fist between the two seats. An inventory search of the car revealed cocaine in the area where defendant had thrust his fist. The court found this evidence, combined with nervousness, was sufficient to convict defendant of possession. Id. at 24.

Defendant testified at trial and denied any knowledge that the drugs were in the car, saying that he had borrowed the car from a friend. ¹ He explained his movements in leaning over in the car by saying he was "putting a cigarette out in the ash tray" ² and denied that he was ever completely out of the officers' sight. The jury, however, was not required to believe Defendant's testimony. State v. Garrison, 896 S.W.2d at 692. Credibility and weight of testimony are for the jury to determine, and a jury may believe all, some or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case. State v. Sand, 731 S.W.2d 488, 491 (Mo.App.S.D.1987). The jury is entitled to accept the state's evidence as true, and reject the defendant's testimony as false. Id. at 491-92. While the circumstances need not be absolutely conclusive of guilt, they need not demonstrate the impossibility of innocence; while the jury may have chosen to acquit, they did not. State v. Hernandez, 880 S.W.2d at 339.

In reviewing a circumstantial evidence case, the appellate court must decide only whether a reasonable juror could find each of the elements of the charged crime beyond a reasonable doubt. State v. Dulany, 781 S.W.2d at 55. In the instant case, we hold that there...