State v. Padgett, 10571

• Decision Date: 26 October 1977
• Docket Number: No. 10571,10571
• Citation: 557 S.W.2d 731
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Douglas PADGETT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 731

557 S.W.2d 731

STATE of Missouri, Plaintiff-Respondent, v. Douglas PADGETT, Defendant-Appellant.

No. 10571.

Missouri Court of Appeals, Springfield District.

Oct. 26, 1977.

Dennis Reaves, Pros. Atty., Stockton, for plaintiff-respondent.

John A. Watkins, Greenfield, for defendant-appellant.

BILLINGS, Chief Judge.

In a jury-waived trial defendant Padgett was convicted of misdemeanor possession of marijuana and sentenced by the court to the county jail for 60 days. This appeal questions the sufficiency of the evidence to support the conviction. We affirm.

As an incident to defendant's arrest under a probation and parole warrant, the arresting officer discovered a homemade pipe in defendant's pant pocket. The pipe, received as an exhibit, is made from a straight piece of wood. It is three and one-half inches long, is one inch wide at the bowl end, and tapers down to one-quarter inch at the mouth end. The bowl end is three-quarters of an inch wide and the bowl is hollowed so as to form a circle one-quarter inch in diameter and one-quarter inch in depth. A tiny mesh screen is located at the bottom of the bowl and between that container and a three-sixteenths of an inch hole which extends from the bowl to the end of the "stem."

The arresting officer testified he discovered the pipe when he "patted down" the defendant and when he removed it from the pant pocket it smelled of burned marijuana. He said there "was some grassy type material still in the pipe and some ashes burnt material in it."

The pipe was delivered to a chemist for the Region II Crime Laboratory at Springfield for analysis of the material in the bowl. The chemist testified a test of the residue extracted from the pipe bowl revealed tetrahydrocannabinol, "the active ingredient that's found in marijuana resin and it's only found in marijuana plants." The witness said there was more than a "trace" of marijuana in the pipe bowl and "it was easily measured."

Defendant and a companion both testified defendant found the pipe on the paving near their car when they returned to the vehicle from a nearby beach. Defendant said he had the pipe "between a half-hour and an hour" before his arrest and did not know it contained marijuana.

In urging we reverse the judgment and order his discharge, the defendant contends the state's evidence was insufficient because it failed to show he was aware there was marijuana in the pipe and thus the element of conscious possession of the controlled substance is lacking. In support of this proposition, defendant relies upon State v. Polk, 529 S.W.2d 490 (Mo.App.1975).

In Polk officers found a jewelry box in an apartment rented by defendant and others. In the box were objects to process and administer heroin and seven capsules. The state's chemist testified five of the capsules contained traces of powder which tested positively for heroin. The amount of heroin was so minute that it could not be weighed, the tests consumed all of the heroin traces found, and, the capsules containing the traces were not introduced in evidence.

In ruling the state's evidence was not sufficient to support Polk's conviction, Judge Kelly of the St. Louis District wrote:

"To sustain a conviction for possession of a controlled substance in violation of § 195.020 RSMo. it is essential that the State prove that the defendant did knowingly and intentionally have in his possession the proscribed controlled substance. It is not sufficient that it prove only actual or constructive possession, but the test is whether the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it. State v. Burns, 457 S.W.2d 721, 724(1) (Mo.1970) said: 'Possession without knowledge of such possession is not possession in the legal sense of that word . . . . Knowledge of the existence of the object is essential to physical control thereof with the intent to exercise such control and such knowledge must necessarily precede the intent to exercise or the exercise of such control . . .' Burns, supra, was followed in State v. Berry, 488 S.W.2d 667, 669 (Mo.App.1972)."

"The decisive issue in this case as we conceive it is whether the State is entitled to the 'inference' of knowledgeable and conscious possession of narcotics from the facts of exclusive possession...