State v. Smith

Citation33 S.W.3d 648
Parties(Mo.App. W.D. 2000) . State of Missouri, Respondent v. Stanley E. Smith, Appellant. Case Number: WD57697 Missouri Court of Appeals Western District Handdown Date:
Decision Date14 November 2000
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Holt County, Hon. John C. Andrews

Counsel for Appellant: J.C. Hambrick, Jr.

Counsel for Respondent: Jeremiah (Jay) Nixon, John M. Morris and Susan Glass

Opinion Summary:

Stanley Smith appeals his convictions for possession of a controlled substance and manufacture and production of a controlled substance. Smith was charged after police searched a house he and his girlfriend occupied and found methamphetamine, as well as paraphernalia used to manufacture methamphetamine. In his appeal, Smith raises 6 points, one of which the Court finds dispositive, namely that there was insufficient evidence to support his conviction of both counts.

REVERSED.

Division holds:

(1) Smith was in joint possession of the premises where the illegal substance was found. In order to convict Smith for the possession of methamphetamine the state must prove two elements: (1) that Smith had conscious and intentional possession of the controlled substance, either actual or constructive and (2) that he was aware of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992).

(2) Since Smith shared the residence with his girlfriend and was not present when the search of his residence was made, the court could not infer that the illegal drugs belonged to Smith or that he had control over the substance or knowledge of its existence.

(3) Absent additional corroborating evidence in the form of the commingling of the controlled substance with Smith's belonging, a great quantity of the illegal substance, the substance in public view and access by Smith or other circumstances that could raise an inference of knowledge or control, Smith's convictions cannot be affirmed.

Opinion Author: Ronald R. Holliger

Opinion Vote: REVERSED. Breckenridge and Smart, Jr., J.J., concur.

Opinion:

Stanley Smith was convicted of possession of a controlled substance under section 195.202 and manufacture and production of a controlled substance under section 195.211.1 Because we find that the evidence was insufficient on both counts to support the convictions we reverse with directions that Smith be discharged.

On December 6, 1998, Kelly Shuttleworth, a member of the Buchanan County Drug Strike Force, was shopping at Wal-Mart when he saw two men purchasing lithium batteries and cold medicine. Shuttleworth believed one of the men to be Stanley Smith. After the men left the Wal-Mart, Shuttleworth followed them and telephoned their license plate number into his dispatcher. The license plate was traced to a car owned by Smith's parents. As it turned out, the man purchasing the items at Wal-Mart was not Smith but a man named Sam Latrelle.

A search warrant was obtained on December 7, 1998, for Smith's residence and the surrounding property. The house was on a farm owned by Smith's parents. Smith had lived on the farm for some ten years. His girlfriend had lived with him on the farm for an unknown period. The house was empty when the search was executed. Smith and Schultz were in St. Joseph, Mo., at the time the officers searched the premises.

In an outbuilding on the farm several items commonly used in methamphetamine production were found. In the kitchen police found more questionable but legal household items as well as containers of liquid. In Smith's bedroom, which he shared with Christine Schultz, the police found a spoon with methamphetamine residue on it, a razor blade with methamphetamine powder on it and pseudoephedrine. Officers arrested Smith in St. Joseph, Missouri, more than an hour away, before beginning the search. No illegal substances were found in Smith's possession at the time of the arrest. Subsequent to the search and Smith's arrest, officers realized that Smith was not the man in Wal-Mart purchasing the questionable products. Evidence at trial indicated that Sam Latrelle, Schultz's ex-husband, made the purchases.

Smith raises six points on appeal; three deal with the issuance of the search warrant and two with closing argument by the prosecutor. Because resolution of Smith's remaining point is dispositive of the case we do not discuss the other issues. The state argues that Smith's point on appeal is defective for failure to comply with Rule 30.06 which requires a point relied on to (1) identify the trial court ruling being challenged, (2) state concisely the legal reasons for the claim of reversible error, and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. The Court of Appeals has no duty to look to the argument portion of a brief or scour the record to ascertain the basis and reason an appellant claims the trial court erred. State v. Boyle, 970 S.W.2d 835, 837 (Mo. App. 1998). Abstract statements of law devoid of reference to any action or ruling of the trial court violate the rules of appellate procedure in criminal cases. State v. Kuhlenberg, 981 S.W.2d 617, 622 (Mo. App. 1998).

Smith's point relied on states:

THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER A CASE ON CONSTRUCTIVE POSSESSION WITHOUT ANY EVIDENCE SHOWING ANY EXCLUSIVE CONTROL, ACTUAL CONTROL, OR ANY CONNECTION OTHER THAN HIM HAVING SHARED A RESIDENCE, OF ANY ILLEGAL SUBSTANCE FOUND IN THE MISTAKEN SEARCH.

The point lacks compliance with Rule 30.06 by failing to direct our attention to the action or ruling complained of and clearly stating the legal reasons for the alleged error. Nevertheless, we need not dismiss an appeal when the issues are clear. State v. Nathan, 992 S.W.2d 908, 909 (Mo. App. 1999). In a criminal case it is preferable, if possible, to reach the merits of a case lest we punish the appellant for the shortcomings of his counsel. State v. Gilpin, 954 S.W.2d 570, 580 (Mo. App. 1997). We do clearly ascertain from the argument portion of the brief and the transcript that Smith is complaining that there was insufficient evidence to support his conviction and that the court erred in not granting his motion for judgment of acquittal at the close of all the evidence.2

We may, in addition, in our discretion, choose to exercise plain error review. Rule 30.20. Mere allegations of error and prejudice do not warrant plain error review unless there are substantial grounds for believing that manifest injustice has resulted from the error. State v. Boyd, 954 S.W.2d 602, 606 (Mo. App. 1997). The state has the burden and must prove each and every element of a criminal case. The failure to do so demands that any conviction be reversed. State v. Bromley, 840 S.W.2d 288, 289 (Mo. App. 1992). A conviction based on insufficient evidence results in a manifest injustice justifying plain error review. State v. Fosdick, 776 S.W.2d 54, 56 (Mo. App. 1989).

To convict Smith for possession of methamphetamine, the state must prove two elements: (1) that Smith had conscious and intentional possession of the controlled substance, either actual or constructive, and (2) that he was aware of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Both elements may be proved by circumstantial evidence. Id. Where the evidence does not show actual possession, the first element of the offense may be shown by constructive possession "when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." Id. at 588. At a minimum the state must establish that a defendant had access to and control over the premises where the substance was found. An inference of possession and control of the illegal substance arises where the defendant has exclusive control of the premises. Id. Where there is joint control of the premises, the state must present additional evidence showing the defendant had knowledge of the presence of the controlled substance and control over the illegal drugs. Mere presence of a controlled substance on premises owned or possessed by a defendant will not suffice to sustain a conviction for possession. State v. Jansen, 964 S.W.2d 552, 554 (Mo. App. 1998).

In State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975), the Missouri Supreme Court stated:

Where a person is present on premises where drugs are found but does not have exclusive use or possession of the premises, it may not be inferred that he had knowledge of the presence of the drugs or had control, so that no submissible case is made. Additional factors are required. When the defendant is present on the premises and if there are additional independent factors showing his knowledge and control, then that is sufficient to withstand a motion for directed verdict. To justify a conviction in any case of possession it is necessary to prove that the accused knew of the presence of the forbidden substance and that the same was under his control. In the absence of incriminating circumstances no case is made.

Various additional incriminating circumstances have been held to raise an inference of knowledge and control in a case of joint possession of the premises: self-incriminating statements, Id. at 292-93; consciousness of guilt, State v. Dreiling, 830 S.W. 521, 524-525 (Mo. App. 1992); routine access to the place where the controlled substance is found; the commingling of the controlled substance with a defendant's personal belongings, State v. Stewart, 844 S.W.2d 31, 33 (Mo. App. 1992); a...

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