State v. Morris

• Decision Date: 19 December 2000
• Citation: 41 S.W.3d 494
• Parties: (Mo.App. E.D. 2000) State of Missouri, Respondent v. Kevin Morris, Defendant/Appellant. ED77788
• Court: Missouri Court of Appeals

41 S.W.3d 494 (Mo.App. E.D. 2000)

State of Missouri, Respondent v. Kevin Morris, Defendant/Appellant.

ED77788

Missouri Court of Appeals Eastern District

12/19/2000

Appeal From: Circuit Court of Cape Girardeau County, Hon. John Grimm

Counsel for Appellant: John M. Albright

Counsel for Respondent: John M. Morris, III, and Breck K. Burgess

Opinion Summary: Defendant Kevin Morris appeals the judgment entered upon his conviction for possession of more than 35 grams of marijuana, Section 195.020 RSMo (1994).

Southern Division holds: There was not sufficient evidence to show that Defendant actually or constructively possessed the marijuana. It was not established that he had knowledge and control of the substance.

Lawrence E. Mooney, Judge

Defendant, Kevin Morris, appeals the judgment entered upon his conviction for possession of more than 35 grams of marijuana under Section 195.020 RSMo 1994. Defendant contends that the trial court erred in: (1) denying his motion for judgment of acquittal because the State did not submit sufficient evidence to prove possession of marijuana; (2) admitting Defendant's statement to police because it was the product of an illegal arrest; and (3) admitting testimony that Defendant previously lived at the residence where the marijuana was found. Because we find Defendant's first claim of error dispositive, we do not address his remaining claims. We reverse and order Defendant to be discharged.

Facts

On August 10, 1999, Detective Sullivan and three deputies of the Scott County Sheriff's Department, executed a search warrant on 807A Del Mar in Sikeston, Missouri. Meshay Latham, the lessee of the residence, was not home, but Defendant was in the apartment, laundering his clothes. Detective Sullivan knocked on the door and announced, "Sheriff's Department." Defendant asked, "Who is it?" The officers heard steps inside the apartment coming toward the door and when the steps stopped, they attempted twice to kick in the door, claiming they feared evidence was being destroyed. After the second kick, Defendant opened the door. The officers immediately forced Defendant to the ground, placed his hands behind his head, and searched his pockets, finding $900 in cash in his front pocket. The deputies also secured the apartment, finding Defendant's two small children. The officers sat Defendant on the couch in the living room with his children until their grandmother arrived to pick them up.

Once the children were gone, an officer read the search warrant and administered the Miranda¹ warning to Defendant. During the search, Defendant remained on the couch in the living room. While conducting the search, officers found incriminating evidence in the kitchen. In plain view by the microwave, officers seized two boxes of plastic bags. A closed cabinet under the kitchen sink held a gallon type Ziploc bag containing seven smaller bags of marijuana. In addition, officers recovered a small bag of marijuana from inside the closed microwave. Detective Sullivan then asked Defendant: "[I]s this all the narcotics in the residence or would I need to contact the highway patrol for a K-9 unit to do a more in detail search?" Defendant responded: "No, you got it all."

A jury convicted Defendant of possession of more than 35 grams of marijuana and he was sentenced to 7 years in prison. This timely appeal follows.

Analysis

In determining whether the State produced sufficient evidence to sustain a criminal conviction, "we accept as true all evidence tending to prove defendant guilty together with all reasonable inferences supportive of the verdict." State v. Barber, 635 S.W.2d 342, 343 (Mo. 1982). Furthermore, we do not weigh the evidence but only determine whether there was substantial evidence to support the jury verdict. State v. Moiser, 738 S.W.2d 549, 553 (Mo.App. E.D. 1987). Substantial evidence means that reasonable persons could have found defendant guilty as charged on the evidence provided. Barber, 635 S.W.2d at 343.

To sustain a conviction for possession of a controlled substance under Section 195.020, the State must prove that Defendant knowingly and intentionally possessed the proscribed substance. Id. Actual or constructive possession must be shown to satisfy this burden and the State must establish that Defendant was aware of the presence and nature of the substances in question. Id. When actual possession is not present as in the case at bar, the State must not only prove constructive possession but also show other facts that buttress the inference of possession. Id.

Constructive possession requires, at a minimum, evidence that Defendant had access to and control over the premises where the drugs were found. State v. Withrow, 8 S.W.3d 75, 80 (Mo. 1999). Exclusive possession of the premises raises an inference of possession and control; however, in cases of joint possession, further evidence is necessary to connect Defendant to the drugs. Id. Additional evidence that may suffice to support a conviction in a joint possession case include: routine access to an area where such substances are kept, State v. Kerfoot, 675 S.W.2d 658, 662 (Mo.App. E.D. 1984); the presence of large quantities of the substance at the scene where appellant is arrested, Barber, 635 S.W.2d at 344; admissions of the accused, State v. Wiley, 522 S.W.2d 281, 292-93 (Mo. banc 1975); and being in close proximity to drugs or drug paraphenalia in plain view of the police, State v. Jackson, 576 S.W.2d 756, 757 (Mo. App. E.D. 1979); mixture of defendant's personal belongings with the drugs, State v. Dethrow, 674 S.W.2d 546, 550 (Mo.App. E.D. 1984). Furthermore, defendant's flight upon realizing the presence of police can constitute additional evidence of guilt, buttressing the inference of constructive possession. State v. Keeper, 787 S.W.2d 887, 890 (Mo.App. E.D. 1990). The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proved. State v. Purlee, 839 S.W.2d 584, 589 (Mo. banc 1992).

With these principles in mind, we note that Defendant was neither in exclusive possession of the premises nor did he have actual, physical possession of any of the drugs seized from the apartment. The State's evidence shows him to be a former boyfriend and guest of the lessee who claims he was there with his children to do his laundry. Assuming Defendant had joint possession of the premises, additional incriminating evidence does not exist...