State v. Powell, WD

• Citation: 973 S.W.2d 556
• Decision Date: 18 August 1998
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Marc A. POWELL, Appellant. 54713.
• Court: Court of Appeal of Missouri (US)

Page 556

973 S.W.2d 556

STATE of Missouri, Respondent, v. Marc A. POWELL, Appellant.

No. WD 54713.

Missouri Court of Appeals,

Western District.

Aug. 18, 1998.

Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James H. Klahr, Asst. Atty. Gen., Jefferson City, for respondent.

Before SPINDEN, P.J., and ULRICH and EDWIN H. SMITH, JJ.

ULRICH, Judge.

Marc Powell appeals his conviction following jury trial for possession of a controlled substance with intent to distribute, section 195.202, RSMo 1994, and sentence of five years imprisonment. As his sole point on appeal, Mr. Powell argues that the trial court erred when it overruled his motion for acquittal where the evidence was insufficient to establish that he possessed the marijuana found in the car in which he was a passenger. The judgment of conviction is affirmed.

FACTS

Sergeant Ronald Cunningham of the Archie, Missouri police department observed a vehicle driving eighty-four miles per hour in a seventy miles per hour zone on Highway 71 on January 5, 1997, at 1:30 a.m. Officer Cunningham attempted to cause the driver to stop the vehicle. The driver of the vehicle, Cory Whitaker, drove onto the shoulder of Highway 71. Mr. Whitaker then maneuvered the vehicle back onto the highway, crossed a bridge, and finally stopped the car.

Officer Cunningham approached the vehicle, which contained three persons. Marc Powell was in the front passenger seat, Ronnie Hightower was in the back seat, and Cory Whitaker was driving. All three men seemed nervous and "spaced out" to Officer Cunningham. The police officer asked Mr. Whitaker for a driver's license, and he replied that he did not have it with him because he had left it in Oklahoma, the men's home state. Officer Cunningham then asked Mr. Whitaker for proof of insurance. As Mr. Whitaker was looking for the insurance papers in his glove box, Officer Cunningham shone his flashlight in the vehicle and noticed Mr. Powell moving his foot on the floorboard back toward the passenger seat.

Officer Cunningham returned to his vehicle and discerned through a dispatcher that Mr. Whitaker did not have a driver's license. Officer Cunningham returned to the vehicle to arrest Mr. Whitaker. When Mr. Whitaker exited the vehicle, Officer Cunningham smelled a strong odor of marijuana emanating from inside the vehicle. Officer Cunningham also noticed, protruding from underneath the passenger seat, the corner of a plastic bag containing a green, leafy substance. Officer Cunningham asked all three men to exit the vehicle. Officer Cunningham described the men as appearing glassy-eyed and "laid back," although "paranoid." Based on his prior experience, Officer Cunningham thought the men were under the influence of marijuana.

Deputy Keith Kerrick arrived as Officer Cunningham was arresting Mr. Whitaker. Deputy Kerrick had a drug-sniffing dog with him. Mr. Whitaker and Mr. Hightower consented to a search of the vehicle that belonged to their grandmother. Deputy Kerrick's dog began to search the outside of the vehicle and responded in a manner indicating that it had located drugs. Deputy Kerrick searched the front passenger area of the vehicle and found a plastic bag of marijuana weighing 115.5 grams. Deputy Kerrick found marijuana on the floorboard and a box of sandwich bags in the back seat that, in Officer Cunningham's experience, is used to distribute the marijuana. Deputy Kerrick also smelled a strong odor of marijuana and noticed the three men appeared to him to be under the influence of drugs.

Mr. Powell was tried by jury for possession with intent to distribute marijuana. The trial court denied Mr. Powell's motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. The jury found Mr. Powell guilty and sentenced him to five years imprisonment. This appeal followed.

SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT MR. POWELL OF

POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT

TO DISTRIBUTE

As his sole point on appeal, Mr. Powell contends that the trial court erred by denying his motion for judgment of acquittal where no evidence was presented that he possessed the marijuana found in Mr. Whitaker's vehicle. Mr. Powell argues that the trial court's error denied him due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 10 and 18(A) of the Missouri Constitution.

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. West, 939 S.W.2d 399, 401 (Mo.App.1996); State v. Graham, 906 S.W.2d 771, 778 (Mo.App.1995). 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.

To sustain a conviction for possession of a controlled substance with or without intent to distribute, 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 this substance. State v. Fuente, 871 S.W.2d 438, 442 (Mo. banc 1994); State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). The State is not required to show actual, physical possession of the substance to establish possession, but may show constructive possession by circumstantial evidence. State v. Shinn, 921 S.W.2d 70, 72 (Mo.App.1996); State v. Hernandez, 876 S.W.2d 22, 24 (Mo.App.1994). Constructive possession will suffice to support a conviction when other facts support an inference of defendant's knowledge of the presence of the substance. Id. The state must present some incriminating circumstance that implies the accused knew of the presence of the drugs and the same were under his control. Id. Joint control over the area where the drugs were found will not preclude a showing of control, so long as further evidence connects the defendant with the illegal substances. Id.

In Shinn, the defendant was a passenger in a car stopped by the Missouri State Highway Patrol for speeding. Shinn, 921 S.W.2d at 72. As the trooper approached the car, he saw the defendant bending forward in the car "as if to hide something." Id. The trooper observed that the defendant appeared nervous. Id. The trooper obtained the driver's permission to search the car. Id. Under the front floor mat of the defendant's car on the passenger side, the trooper found cocaine and drug paraphernalia. Id. On appeal, the defendant alleged that insufficient evidence existed to support his conviction for possession of a controlled substance. Id. The court disagreed. Id. It reasoned that although the defendant did not own the car, he and the driver had been in possession of the car most of the day. Id. at 73. Furthermore, the cocaine and drug paraphernalia were found under the floor mat at the defendant's feet, an area where he had superior access, which is an incriminating fact. Id. (citing State v. Hernandez, 880 S.W.2d 336, 339 (Mo.App.1994)). The court noted that the defendant was visibly nervous, a condition that supports an inference of awareness of a controlled substance. Id. Finally, the defendant's actions in attempting to hide something under the seat implies a consciousness of guilt. Id. Based on these factors, the court concluded that the evidence was sufficient to support an inference that the defendant constructively possessed the drugs and drug paraphernalia. Id.

Here, as in Shinn, sufficient evidence existed to convict Mr. Powell of possession of a controlled substance with intent to distribute. As in Shinn, although Mr. Powell did not own the car and was a passenger in the car, he and Mr. Whitaker and Mr. Hightower had been in possession of the car throughout the day. The men informed the arresting officers that they had driven the car from...