State v. Smith

• Decision Date: 07 December 1999
• Citation: 11 S.W.3d 733
• Parties: (Mo.App. E.D. 1999) State of Missouri, Respondent, v. Eugene Smith, Appellant. Case Number: ED75106 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

11 S.W.3d 733 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

State of Missouri, Respondent, v. Eugene Smith, Appellant.

Case Number: ED75106

Missouri Court of Appeals Eastern District

Handdown Date: 12/07/99

Appeal From: Circuit Court of St. Francois County, Hon. Kenneth W. Pratte

Counsel for Appellant: Rosalynn Koch

Counsel for Respondent: Krista D. Boston

Opinion Summary: Eugene Smith appeals from his conviction of possession of a controlled substance.

AFFIRMED.

Division One holds: (1) The evidence at trial was sufficient to support Smith's conviction. (2) Smith's attorney failed to preserve alleged trial court error for review. (3) Smith's pocket knife was the product of a legal arrest and was properly admitted into evidence. (4) The trial court did not err in allowing the prosecution's argument.

Opinion Author: James R. Dowd, Judge

Opinion Vote: AFFIRMED. Gaertner, P.J., and Simon, J., concur.

Opinion:

On August 26, 1998 Appellant Eugene Smith was charged by information as a prior and persistent offender with possession or control of a controlled substance, section 195.202 RSMo 1994.¹ On August 27, 1998, the appellant was tried before a jury and found guilty of possession of a controlled substance in the Circuit Court of St. Francois County. On September 25, 1998, appellant was sentenced to fifteen years imprisonment as a prior and persistent offender.

Facts

Viewed in the light most favorable to the verdict, the evidence presented at trial adduced the following: On June 11, 1997, Bonne Terre police officer Brian Williams was patrolling near the intersection of Dover and Cherry Streets. A silver Cadillac ran a stop sign and nearly struck the patrol vehicle. Officer Williams pursued the Cadillac and stopped it in front of an apartment complex. While the passenger, Mr. Smith, remained in the vehicle, the driver left the car and walked away.

Officer Williams briefly followed the driver behind the apartment building, then returned to the Cadillac. At that point, Mr. Smith left the car and began to walk away. Officer Williams told Mr. Smith that he needed to talk to him, but Mr. Smith walked out of sight. Officer Williams returned to his patrol vehicle and requested backup. When that arrived, he resumed his search for the driver and Mr. Smith. Unable to locate the driver, he found Mr. Smith hiding in some nearby woods. Officer Williams told Mr. Smith to stand and show his hands. Mr. Smith stood but did not show his hands. Officer Williams noticed something in Mr. Smith's hand, which was later determined to be a baseball cap, and drew his revolver. Officer Williams then placed Mr. Smith into custody and secured him in his patrol car.

When Officer Williams continued to search for the driver, Officer Doug Calvert advised Officer Williams that he should return to the Cadillac. He did so, and Officer Calvert showed him a brown paper bag in the middle of the floorboard of the front seat. The bag contained three "bricks" of what appeared to be marijuana and a set of scales. On further search of the car, the officers discovered several syringes, a razor blade and what appeared to be a marijuana cigarette in the front ashtray, a pipe used to smoke marijuana in the glove compartment, a wooden bat on the backseat floorboard, and a kitchen knife under the driver's seat.

After the officers completed the search of the Cadillac, Officer Williams drove Mr. Smith to the police department to be booked. Mr. Smith gave his name as Paul E. Jones. After booking Mr. Smith, Officer Williams searched Mr. Smith and found a pocket knife. The knife had a green leafy substance believed to be marijuana trapped in the sheath, or the section where the blade folded into the handle. After several days, the officers learned that the defendant's real name was Eugene Smith.

After the jury entered the guilty verdict, Mr. Smith submitted a motion for acquittal or in the alternative for new trial, which the trial court overruled. Sentence was imposed, and this appeal followed.

Analysis

Mr. Smith appeals from the trial court's overruling of his motion for judgment of acquittal, from the trial court's failure to hear the pre-trial motion to suppress Mr. Smith's pocket knife, the admission of the knife into evidence, and from the trial court's allowance of the prosecution's argument.

I. Sufficiency of the Evidence

Mr. Smith contends that the trial court should have sustained his motion for judgment of acquittal because the prosecution failed to present sufficient evidence to show that Mr. Smith was in possession of the marijuana. The Cadillac was apparently owned by the driver, Terry Sensabaugh, and the marijuana was found in the middle of the front floorboard, within reach of both Mr. Sensabaugh and Mr. Smith. Consequently, Mr. Smith argues, the prosecution was required to show additional evidence to connect Mr. Smith with the marijuana and failed to do so.

In reviewing whether the evidence is sufficient to support a criminal conviction, an appellate court in Missouri accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. State v. Chaney, 967 S.W.2d 47, 52 (Mo.banc 1998). "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Section 195.202 provides that "it is unlawful for any person to possess or have under his control a controlled substance." Possession is described according to the following:

A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it.

Section 195.010.33. To prove possession of a controlled substance, the state must prove defendant knowingly and intentionally possessed the substance and knew its nature. State v. Fuente, 871 S.W.2d 438, 442 (Mo.banc 1994). The state is not required to show actual, physical possession of the substance to establish possession, but may also show constructive possession by circumstantial evidence. State v. Shinn, 921 S.W.2d 70, 72 (Mo.App.E.D. 1994) (quoting State v. Hernandez, 876 S.W.2d 22,24 (Mo.App.E.D. 1994)). Constructive possession is adequate 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 defendant with the illegal substances. Id.

In this case, the prosecution presented evidence sufficient for a reasonable trier of fact to find the defendant guilty of possessing marijuana. There is no dispute that Mr. Smith knew the contents of the bag. All that remains is to determine whether the prosecution presented enough evidence to show that the drugs were under his control.

The prosecution met this burden. First, the police found the pocket knife on the defendant's person with marijuana leaves trapped in the folding portion of the knife. In an interview with a police detective, Mr. Smith admitted that he lent the knife to Mr. Sensabaugh in order to cut one of the bricks of marijuana, which Mr. Sensabaugh did in Mr. Smith's presence. A reasonable jury could find that lending the knife exercised enough control of the marijuana for Mr. Smith to possess the substance. Moreover, under our standard of review, we must accept as true all evidence and inferences favorable to the state and disregard all evidence and inferences to the contrary. State v. Chaney, 967 S.W.2d at 52. Therefore, we must accept Mr. Smith's statement that his knife was used to cut the marijuana and disregard his statement that Mr. Sensabaugh cut the drugs. Under that analysis, a reasonable jury could even conclude that Mr. Smith cut the bricks himself, thereby controlling the substance more directly.

Second, the prosecution presented evidence that the bag containing the marijuana was slightly closer to Mr. Smith than Mr. Sensabaugh. The position of the marijuana and the fact that Mr. Sensabaugh was driving the vehicle are a sufficient basis on which a reasonable jury could find that Mr. Smith had access superior to Mr. Sensabaugh at the time the Cadillac was pulled over. Such access to the marijuana is an incriminating fact which is not destroyed by the fact that others also had access. State v. Shinn, 921 S.W.2d at 73.

Third, Mr. Smith fled the Cadillac, despite the police officer's request not to do so, looking over his shoulder at the officer as he walked away. He then proceeded to hide in the woods behind some brush while the officer looked for him. A defendant's flight is admissible as tending to demonstrate a consciousness of guilt. State v. Davis, 982 S.W.2d 739, 743 (Mo.App. E.D. 1998).

Finally, when the police brought Mr. Smith in for booking, he initially gave them a false name. False statements to police can give rise to an inference of guilty behavior. State v. Allen, 817 S.W.2d 526, 528 (Mo.App. E.D. 1991). In Allen, as in the present case, the defendant appealed a conviction of possession of a controlled substance, claiming the evidence was insufficient to support a guilty verdict. Also, as in the present case, the defendant initially gave a false name to the police. Mr. Smith's offer of a false name at the...