State v. Narville

• Decision Date: 24 May 2000
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent, v. Johnny Norville, Appellant. 22871 0
• Court: Missouri Court of Appeals

23 S.W.3d 673 (Mo.App. S.D. 2000)

State of Missouri, Respondent, v. Johnny Norville, Appellant.

22871

Missouri Court of Appeals Southern District

05/24/2000

Circuit Court of New Madrid County, Hon. Fred W. Copeland

Counsel for Appellant: Amy M. Bartholow

Counsel for Respondent: Andrea L. Mazza

Opinion Summary: None

P.J., and Prewitt, J., concur.

Robert S. Barney, Judge

Johnny Norville ("Defendant") appeals his conviction of the Class C Felony of possession of a controlled substance, section 195.202, following a jury trial.¹ Defendant was sentenced as a prior offender and persistent offender, section 558.016, to twelve years' imprisonment. Defendant raises eight points of trial court error discussed below. We affirm.

Viewed in a light most favorable to the verdict, we observe that on the night of February 10, 1998, Mississippi County law enforcement officers executed a search warrant at Defendant's mobile home, located just outside of East Prairie, Missouri. The officers forced open the door to the mobile home when no one responded to their knocks. Sharon Moore ("Sharon"), Defendant's fiancee and live-in, was apprehended in the hallway inside the front door and Defendant was apprehended in a bedroom. Sheriff Turley was the first law enforcement officer to enter the bedroom. He testified that Defendant was "sitting at a little counter, or something. He had his back to me." Sheriff Turley related that when he yelled for Defendant to get on the floor, Defendant whirled around wielding a lock-blade knife "and squared off with a wild look." Sheriff Turley testified that Defendant looked "[j]ust wild. Just wild-eyed looking. Just like he was in a different world." He reported that Defendant dropped the knife after a couple of seconds and was taken into custody.

On the counter in the bedroom of Defendant's mobile home, officers found two clear plastic bags containing a white substance that was later determined to be methamphetamine. One of the bags was open. The officers also seized a piece of aluminum foil, a coffee filter and a plastic cup, all later found to contain methamphetamine residue.² Additionally, a jar filled with a liquid red substance was found outside the mobile home near the porch.

Defendant's primary defense at trial was that he had been "framed." He contended that the methamphetamine had been planted by Sharon's son, Brice Owens ("Brice"), in collusion with Sharon's ex-husband, Jim Owens ("Jim"), Brice's father. It was Defendant's contention that both men felt a great deal of animosity toward him.

As more fully set out infra, Brice's statements to law enforcement officials prior to the raid on Defendant's home and his purported statements made to third parties after Defendant's and Sharon's arrests, together with his testimonies at the suppression hearing and at trial, were at times contradictory and equivocal. At the suppression hearing and at trial, Chief Deputy Keith Moore testified that Brice had been a reliable confidential informant for the Sheriff's Office in the past, and acknowledged that on February 6, 1998, Brice had informed Deputy Moore both that he had seen "a gram or two of methamphetamine in Sharon and Johnny's trailer" and that Defendant was "going to manufacture some methamphetamine" the following weekend. Deputy Moore acknowledged that he obtained a search warrant to search Defendant and Sharon's mobile home on the basis of this information. See Point Four.

At trial, Brice testified that "[Defendant] is totally innocent. I just want to go ahead and let everybody know that I was the one that done this." He further related that "I had a buddy of mine, I'm not gonna say no names who, but I had him to put the jar on the outside of the trailer, I left the dope at the house." He then acknowledged that by "dope" he meant methamphetamine and that he had left the drugs "in a bathroom, on the sink." Brice stated that he "cooked" some methamphetamine outside Jim's tire shop and rode over to Defendant's and Sharon's mobile home using his nephew's four-wheeler. Additionally, he set out that he told Chief Deputy Moore that he had "seen some dope out there" in Defendant's mobile home.

On cross-examination at trial, when asked when he cooked the methamphetamine, he testified that he cooked it "[t]he day of the bust, whatever day that was."³ The following exchange took place between Brice and the prosecutor:

Q: [Prosecutor] Did you not give [Chief Deputy Moore] information on February the 6th, is that the day that they cooked the dope up in order for him to get a search warrant; is that the day that you called him and told him that there would be dope delivery?

A: [Brice] Yes.

Later, Brice testified as follows:

Q: [Prosecutor] And there has already been evidence in this trial, Brice, that the search warrant that he, he got a warrant for February the 6th, 1998; do you know that?

A: [Brice] Yes.

Q: So that would have been the date that you would have given him the information to get his search warrant?

A: Yes.

Q: Could you have also cooked dope other than just once that week?

A: No, sir.

Also on cross-examination Brice reiterated that he left "a couple grams of methamphetamine . . . no bigger than the end of my pinky there . . . on the kitchen sink" in two bags, but did not tell Defendant he had done so.Point I.

In his first point, Defendant asserts that the trial court erred in overruling his motion for judgment of acquittal for possessing methamphetamine in that the State failed to prove that he had knowledge of or control over the methamphetamine.⁴ This point is without merit.

"In determining the sufficiency of the evidence, all evidence and inferences reasonably drawn from the evidence are viewed in the light most favorable to the verdict, and contrary evidence and inferences are disregarded." State v. Powell, 973 S.W.2d 556, 558 (Mo.App. 1998). "Review of the sufficiency of evidence is limited to determination of whether the evidence was sufficient for reasonable persons to have found the defendant guilty as charged beyond a reasonable doubt." Id. "Credibility of witnesses and inconsistencies in testimony are for the jury to consider." Id.

Defendant was charged with possession of a controlled substance. Section 195.202 provides that "it is unlawful for any person to possess or have under his control a controlled substance." To prove the elements of this offense, the State must show (1) conscious and intentional possession of a controlled substance, either actual or constructive, and (2) awareness of the presence and nature of such substance. See State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992); Yahne v. State, 943 S.W.2d 741, 745 (Mo.App. 1997). Both possession and knowledge may be proved by circumstantial evidence. See Purlee, 839 S.W.2d at 587. "The State is not required to show actual, physical possession of the substance to establish possession, but may show constructive possession by circumstantial evidence." Powell, 973 S.W.2d at 558; see section 195.010(32), RSMo Cum. Supp. 1997. "A defendant who has exclusive control of property is deemed to have possession and control of any substance found on the property." Yahne, 943 S.W.2d at 745.

"In cases where there is joint control, a defendant is still deemed to have possession and control where there is additional evidence connecting him with the controlled substance." Id.; see Powell, 973 S.W.2d at 559; State v. Sours, 946 S.W.2d 747, 752 (Mo.App. 1997).

Such additional evidence showing conscious possession of contraband by a person in joint control of the premises include [sic]: routine access to an area where controlled substances are found; the presence of large quantities of the substances at the scene where the accused is arrested; conduct and statement made by the accused, . . . and a mixture of defendant's personal belongings with the substance.

Sours, 946 S.W.2d at 752 (quoting State v. Buford, 907 S.W.2d 316, 318 (Mo.App. 1995)). Here, the mobile home was unquestionably occupied solely by Defendant and Sharon. Two bags containing methamphetamine were found in the bedroom where Defendant was apprehended. Also found in the mobile home occupied by Defendant was aluminum foil, containing a white substance; a coffee filter and a cup that all tested positive for methamphetamine. Other items found in the bedroom were a razor blade, mirror, spoon, paper funnel, and a syringe. Richard Logan, a pharmacist and law enforcement official testified that it had been his experience that:

[a]long with a razor blade, it is not uncommon for those who abuse drugs to place the drugs on the mirror, and use the razor blade to chop the drugs in to finer portions and then separate it on the mirror with the razor blade. The funnel would be used to transfer powders from one area to the other without losing any. And spoons are fairly commonly used to put the drugs in and put them before ingesting them.

The fact that Sharon used the bedroom and both parties slept in the same bedroom does not exonerate Defendant, because he had equal access to the bedroom; indeed he kept art supplies in the bedroom. "Other persons may have access to the area where drugs are found without destroying 'the incriminating fact that a defendant has access to that area.'" Yahne, 943 S.W.2d at 745 (quoting State v. Steward, 844 S.W.2d 31, 33 (Mo.App. 1992)). Additionally, Defendant admitted owning razor blades, ink pen tubes, scales, and liquid fire. The State may be able to link Defendant to the charge of possession by showing that Defendant's personal belongings were mixed with the controlled substance or otherwise showing that Defendant had "routine access to an area where the substance [was] kept . . . ." Steward, 844 S.W.2d at 33. Given these facts, a reasonable jury could have concluded beyond a reasonable doubt that Defendant had an awareness of the presence and nature of the methamphetamine and that he had possession of the controlled...