State v. Smith, 57907

• Decision Date: 30 April 1991
• Docket Number: No. 57907,57907
• Citation: 808 S.W.2d 24
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Christopher L. SMITH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 24

808 S.W.2d 24

STATE of Missouri, Plaintiff-Respondent, v. Christopher L. SMITH, Defendant-Appellant.

No. 57907.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 30, 1991.

L. Richard Brinkman, Arnold, for defendant-appellant.

William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

CRANDALL, Chief Judge.

Defendant, Christopher L. Smith, appeals from his convictions, after a jury trial, of possession of cocaine and of possession of drug paraphernalia. Defendant was sentenced as a prior offender to concurrent terms of incarceration of five years and sixty days respectively. We affirm.

Defendant challenges the sufficiency of the evidence. On review, facts and appropriate inferences drawn therefrom must be assessed in the light most favorable to the State and all adverse inferences and evidence disregarded. Review is limited to whether the evidence is sufficient to build a submissible case and whether there is sufficient evidence from which reasonable individuals could conclude that defendant is guilty. State v. Turner, 631 S.W.2d 695, 696 (Mo.App.1982).

The evidence adduced at trial established that at 10:00 p.m. on May 7, 1988, a police officer was investigating a report that a hitchhiker on Highway I-55 had thrown a rock through the windshield of an automobile. The officer stopped defendant, who appeared to match the description of the perpetrator. When the officer ran a record check on defendant, he discovered that defendant was wanted on an outstanding warrant. He arrested him under the outstanding warrant, placed him in the police vehicle, and took him to the motorist who had been driving the damaged vehicle. When the motorist was unable to identify him as the person who had thrown the rock, the police officer transported him to the police station.

In the police car, defendant conversed with the officer on the way to the station. He volunteered that he was an addict, that he had had a "hit" of cocaine at approximately 4:00 p.m. that afternoon, and that he was coming down from a "high."

At the police station, the officer conducted a routine inventory search of defendant's person pursuant to booking him. The officer discovered a syringe in the left front pocket of defendant's shirt and asked, "What is this?" Defendant responded, "It is a syringe. There is nothing in it." The officer observed that although the syringe was empty, some residue was visible.

The forensic chemist for the police department testified that a residue coated the inside of the syringe. An analysis revealed that the syringe contained cocaine. The quantity of the cocaine was too small to be measured or weighed by the methods available in the crime lab.

Defendant raises three points on appeal. The second point challenges the sufficiency of the evidence to support defendant's convictions of possession of cocaine and of possession of drug paraphernalia.

To sustain defendant's conviction for possession of cocaine, the State must establish that defendant knowingly and intentionally possessed the controlled substance. State v. Ray, 747 S.W.2d 765 (Mo.App.1988). Possession must be intentional, although it can be actual or constructive; and defendant must know the nature of the substance he is charged with possessing. Id. Possession and knowledge may be shown by circumstantial evidence. Id. In the instant action, the salient issue is whether, given the minute amount of cocaine in the syringe, there was sufficient evidence to establish that defendant's possession of the cocaine was knowing and intentional.

In State v. Polk, 529 S.W.2d 490 (Mo.App.1975), "traces" of heroin were found in capsules contained in a box hidden in the bedroom closet of an apartment occupied by the defendant Polk. This court reversed Polk's conviction of possession of a controlled substance. The court stated that to sustain a conviction for possession of a controlled substance under Section 195.020, RSMo (1986), "the test is whether the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it...." Id. at 492. Knowledge is essential to possession and is an antecedent to the exercise, or the intent to exercise, physical control over the proscribed substance. Id. The court then held:

[W]here the only evidence to support the conviction of possession of a controlled substance [is] ... an amount of the controlled substance which is so miniscule as to constitute a mere "trace" and which is immeasurable and consumed in the performance of the basic test necessary for identification of the substance [the evidence] is insufficient to support a finding that the accused was knowingly, intentionally and consciously in possession of the controlled substance in violation of the statute.

Id. at 494 (Emphasis added). With regard to the evidence, the court stated that there was "no direct evidence that [Polk] had actual possession of the heroin because it was not found on or about his person or in his immediate vicinity." Id. at 492.

In State v. Young, 427 S.W.2d 510 (Mo.1968), during a search pursuant to an arrest for an unrelated matter, police discovered in defendant Young's possession a brown paper bag with three half gelatin capsules which were "caked" with a "white substance." The contents of the capsules were scraped and found to weigh .003 grams. Subsequent chemical analysis...