State v. Phillips

• Decision Date: 01 December 2015
• Docket Number: No. ED101865,ED101865
• Parties: STATE OF MISSOURI, Respondent, v. SHEROD PHILLIPS, Movant/Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent,
v.
SHEROD PHILLIPS, Movant/Appellant.

No. ED101865

Missouri Court of Appeals Eastern District DIVISION THREE

December 1, 2015

Appeal from the Circuit Court of the City of St. Louis

Honorable Christopher McGraugh

OPINION

Sherod Phillips appeals the judgment of the Circuit Court of the City of St. Louis, convicting him, after a jury trial, of possession of a controlled substance and possession of drug paraphernalia with intent to use. In two points relied on, Phillips contends (1) that insufficient evidence was presented at trial to support his convictions, and (2) that the trial court abused its discretion in admitting evidence of uncharged drug transactions, namely police testimony that Phillips sold drugs from his residence in the days before the police executed a search warrant there, and empty capsules associated with heroin distribution that the police found outside his residence.

Finding no reversible error, we affirm.

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Factual and Procedural Background

According to police testimony at trial, in October 2012 the St. Louis Metropolitan Police Department received a citizen tip regarding narcotics sales at a residence in the City of St. Louis. Acting on the tip, police conducted several surveillance operations of the residence. Through surveillance, police observed Phillips engage in hand-to-hand transactions outside the residence. During each transaction, police watched vehicles pull up to the residence, where Phillips then engaged in transactions with the individuals who emerged from the vehicles.

Patrol officers, computer inquiries, and other sources from the area all confirmed that Phillips was selling narcotics from his residence. Moreover, the police videotaped one transaction from across the street, and the video was played for the jury at trial. As the jury watched the videotaped transaction, one of the detectives who made the video identified one person shown in the video as a known heroin addict. Based on all this evidence obtained from surveillance of the residence, the police secured a search warrant.

On October 25, 2012, police executed the search warrant. In an upstairs bedroom, they found a clear plastic bag with one-tenth gram of heroin, a spoon, a syringe, a plastic straw for ingesting heroin, other clear plastic baggies containing a white powder presumed to be used to mix with the heroin in preparation for sale, and a box of sandwich bags. Also in that bedroom, police found mail addressed to Phillips; an earnings statement, job application, and GED certificate belonging to him; and clothing that police had seen Phillips wearing during the hand-to-hand transactions outside the residence.

At trial, one of the police detectives who executed the search warrant testified that the heroin found in the bedroom was consistent with someone using drugs, not selling them. In fact,

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Phillips's grandmother testified that one of her sons, Phillips's uncle, lived with Phillips in the same upstairs bedroom in the residence at the time the search warrant was executed, and that Phillips's uncle had a substance abuse problem and later died from a heroin overdose. No one testified, however, that any of the items found upstairs belonged to Phillips's uncle. And on the back porch of Phillips's residence, police found a garbage bag containing hundreds of empty capsules commonly used by heroin dealers to distribute the narcotic.

Point I: Sufficiency of the Evidence

In Point I, Phillips claims that insufficient evidence was presented at trial to support his convictions for possession of a controlled substance and possession of drug paraphernalia. Phillips contends that no reasonable juror could have found that Phillips constructively possessed a controlled substance and drug paraphernalia. Because Phillips's argument is refuted by the record, we find that the trial court did not err in determining that there was sufficient evidence to support Phillips's convictions.

We review a challenge to the sufficiency of the evidence only to determine whether the State introduced sufficient evidence at trial for a reasonable juror to have found that each element of the offense was established beyond a reasonable doubt. State v. Bateman, 318 S.W.3d 681, 687 (Mo.banc 2010). We accept as true all evidence and reasonable inferences favorable to the verdict, disregarding contrary evidence and inferences, "unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them." State v. Whalen, 49 S.W.3d 181, 184 (Mo.banc 2001).

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Section 195.202¹ prohibits a person from "possess[ing] or hav[ing] under his control a controlled substance." Further, Section 195.233 forbids "any person to use, or to possess with intent to use, drug paraphernalia" for unlawful purposes such as to ingest heroin. To prove these possession offenses, the State must show "(1) conscious and intentional possession of [the controlled substance and paraphernalia], either actual or constructive, and (2) awareness of the presence and nature of the controlled substance [and paraphernalia]." State v. Power, 281 S.W.3d 843, 848 (Mo.App.E.D. 2009) ("We employ the same analysis when reviewing the question of whether [the defendant] possessed drug paraphernalia as when determining whether [the defendant] possessed a controlled substance."). Where, as here, there was no actual possession, the State must prove constructive possession. State v. McCall, 412 S.W.3d 370, 373 (Mo.App.E.D. 2013). Section 195.010(34) states that a person has constructive possession where he "has the power and the intention at a given time to exercise dominion or control over [a controlled substance or drug paraphernalia]." Section 195.010(34) also establishes that possession "may be sole or joint." Thus, to prove constructive possession, the State need only show that a defendant had joint access to and control over the premises where a controlled substance or drug paraphernalia was found. See McCall, 412 S.W.3d at 373.

Where, as here, the premises were jointly possessed, further evidence is required to connect the defendant to the controlled substance. Id. In determining whether there was sufficient further evidence, we consider the totality of the circumstances, searching the record for evidence of, for example,...