State v. Purlee, 074653

CourtUnited States State Supreme Court of Missouri
Citation839 S.W.2d 584
Docket NumberNo. 074653,074653
PartiesSTATE of Missouri, Respondent, v. James A. PURLEE, Appellant.
Decision Date27 October 1992

C.R. Rhoades, Neosho, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

PRICE, Judge.

After a jury trial, James A. Purlee was convicted of possession of more than 35 grams of marijuana and unlawful use of a weapon. Purlee appeals both convictions, claiming insufficient evidence. We find that there was sufficient evidence to support the jury verdicts and affirm the judgment.

I.

The evidence presented to the jury established that on the evening of October 1, 1989, Missouri State Highway Patrolman Timothy Rousset pulled over a brown van traveling eastbound on Interstate 44 outside Joplin. The van was going 62 m.p.h. in a 55 m.p.h. speed zone. Its occupants were James Purlee, the driver, and Mark Schmidt, who was riding in the front passenger seat. Trooper Rousset approached the driver's door. At his request, Purlee rolled down his window and produced an Illinois driver's license. Purlee stated that the van's cruise control had been set at 58 m.p.h. and that he was not aware the speed limit was 55 m.p.h. in that area. During this conversation Trooper Rousset detected a "very strong" odor of raw marijuana coming outside the window.

Trooper Rousset asked Purlee to accompany him to the patrol car. As soon as Purlee exited the van the officer handcuffed him, patted him down, and placed him under arrest for possession of marijuana. Trooper Rousset led Purlee behind the van and left him in the custody of a companion who had been riding in the patrol car. The officer then removed Schmidt from the vehicle, handcuffed him, arrested him, and also led him behind the van. Trooper Rousset informed Purlee and Schmidt that he smelled marijuana very strongly and asked them if they had marijuana in the vehicle. They each responded, "No." The officer then proceeded to search the van.

Trooper Rousset opened the double doors to the van's rear storage compartment. He found two large green duffel bags, one partially stuffed under the back bench seat and the other propped up and covered by two leather jackets. These bags contained a total of 86.29 pounds of raw marijuana, compressed into eight round, foot-wide "bricks." One of the leather jackets contained personal papers, including a car title and a bill of sale, belonging to Schmidt. The other leather jacket and a third jacket were empty. Trooper Rousset noticed a small blue and yellow zippered duffel bag in the rear of the van. This bag had some clothing and a postcard addressed to "James Purplee" at the same address later given by Purlee for the investigative arrest report. It did not contain any drugs.

Trooper Rousset then called a wrecker, took the marijuana to his patrol car, and subjected the van to a more detailed search. He found a loaded .38 caliber Smith & Wesson revolver lying on the floorboard between the two front seats and behind the van's engine console, closer to the driver's side. The officer testified that he did not see the weapon on his initial approach because it was only visible by entering the van and looking over the passenger seat. He also testified that the revolver was not covered up with any debris and that it could not be completely concealed under the van's pedestal-style captain's chairs. He admitted that Purlee had no drugs on his person, that his breath did not smell of marijuana, and that he behaved like a gentleman.

Purlee testified that he lives in Collinsville, Illinois, and went to Arizona to visit a high school friend and see the Grand Canyon. He bought a one-way airline ticket from St. Louis to Tucson for about $200.00 in cash, but he did not make a return reservation or inquire about return flights although he planned to fly back after a week. While in Tucson Purlee met Schmidt, who was a prior acquaintance, and impulsively decided to ride back to Collinsville with him to save money and to help him drive. Purlee stated that he first saw the van when Schmidt picked him up at the friend's house, and that he tossed his small duffel bag into the back of the van but did not see the large duffel bags already there. He asserted that he did not recognize any "unique or distinct odors" in the twelve hours he spent riding in the van, that he did not know the smell of marijuana prior to his arrest, and that he was not aware of the marijuana's presence until he was arrested. He stated that Schmidt put the revolver on the floor by the front seats early on during the trip. Purlee said he did not touch the gun and did not know whether it was loaded, although he admitted that he could have easily picked it up while sitting in the driver's seat.

The jury found Purlee guilty of the class C felony of possession of more than 35 grams of marijuana, § 195.202, RSMo Supp.1989 (Count I), and of the class D felony of unlawful use of a weapon, § 571.030.1(1), RSMo 1986 (Count II). He was sentenced to concurrent terms of seven and five years, respectively, and fined $100.00.

II.

Purlee challenges the trial court's denial of his motions for judgment of acquittal filed at the close of the State's case and at the close of all the evidence. Because he presented evidence in his own behalf after the State rested, Purlee waived any claim of error related to the denial of his motion at the close of the State's case. State v. White, 798 S.W.2d 694, 696-7 (Mo. banc 1990). For purposes of this review, the proper focus is whether the motion for acquittal made at the close of all the evidence should have been sustained. State v. McQuerry, 406 S.W.2d 624, 626 (Mo.1966).

On a challenge to the sufficiency of the evidence, the evidence and all reasonable inferences drawn therefrom are viewed in a light most favorable to the jury's verdict, disregarding all contrary evidence and inferences. State v. Davis, 814 S.W.2d 593, 594 (Mo. banc 1991), cert. denied, 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812 (1992). Appellate review is limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). When the State's case is founded entirely upon circumstantial evidence, the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must exclude every reasonable hypothesis of his innocence. But they need not be absolutely conclusive of guilt, and they need not demonstrate the impossibility of innocence. State v. Biddle, 599 S.W.2d 182, 192 (Mo. banc 1980), citing State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

Purlee's first point on appeal contends that the State did not produce sufficient evidence to convince a rational juror that he was aware of, or had access to, the marijuana hidden in the duffel bags in the van's rear storage compartment. To sustain a conviction for possession of a controlled substance, 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 the substance. Both possession and knowledge may be proved by circumstantial evidence. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). 1

The two prongs of this test are not entirely independent. Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance. Id. Thus, proof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the substance was found. Defendant's exclusive control of the premises is enough to raise an inference of possession and control of the substance. Joint control of the premises, however, requires some further evidence or admission connecting the accused with the illegal drugs. Id.; State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975). It follows that merely being a guest in the premises of another where drugs are found is not sufficient to sustain a conviction for possession of controlled substances. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control. Id.

The following four factors incriminate Purlee and support the jury's verdict. First and most importantly, Trooper Rousset testified that the odor of raw marijuana coming from the van was very strong. After denying that he has any particular ability to smell the drug, Trooper Rousset stated, "I think anybody could have smelled marijuana in the circumstances I have." The officer's prompt arrest of Purlee and Schmidt for possession of marijuana, before searching the vehicle and absent tangible evidence of the drug, underscores the strength of the aroma emanating from the van.

Purlee's professed failure to recognize any unusual odors after spending twelve hours inside the closed van apparently was not credible to the jury. This situation is analogous to that discussed in State v. Harris, 807 S.W.2d 528 (Mo.App.1991). There, the defendant asserted that he did not see a container of cocaine solution and a syringe, which lay at his feet for over two hours while he and a companion sat in a parked truck, even though he was observed bending down toward the floor. The court stated that accepting the defendant's reasoning "would have compelled the jurors to conclude either that he kept his eyes closed all night or that a miracle of spontaneous generation occurred when the rangers searched the truck." Id. at 530. Similarly, the evidence presented in this case allowed the jury to properly infer that Purlee was aware of the presence and nature of the contraband because of the inescapable...

To continue reading

Request your trial
249 cases
  • State v. Perkins
    • United States
    • Supreme Court of Connecticut
    • September 28, 2004
    ...(1988); State v. Currie, 274 Minn. 160, 162, 143 N.W.2d 58 (1966); Shelton v. State, 853 So.2d 1171, 1186 (Miss. 2003); State v. Purlee, 839 S.W.2d 584, 587 (Mo.1992); State v. Gray, 239 Neb. 1024, 1027, 479 N.W.2d 796 (1992); State v. Aranda, 94 N.M. 784, 786, 617 P.2d 173 (1980); People v......
  • State v. Ramires, WD 62863.
    • United States
    • Court of Appeal of Missouri (US)
    • December 21, 2004
    ...use." The essential elements of this offense "are the knowing concealment and accessibility of a functional lethal weapon." State v. Purlee, 839 S.W.2d 584, 590 (Mo. banc In claiming that the State failed to prove all of the elements of the charged offense of unlawful use of a weapon, the a......
  • State v. Ervin, 79968
    • United States
    • United States State Supreme Court of Missouri
    • November 3, 1998
    ...evidence in his own defense after the state rested, he waived any claim of error relating to the denial of his motion. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc Appellant's contention that the evidence was not sufficient to prove deliberation is also without merit. He engaged in repeat......
  • State v. Raines, WD 61366.
    • United States
    • Court of Appeal of Missouri (US)
    • September 9, 2003
    ...thereof must (a) attempt to admit the evidence and (b) make an offer of proof to preserve the issue for appellate review, State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992), for "[a] trial court's ruling on a motion in limine is interlocutory only and subject to change during the trial[.]......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT