State v. Smith

Citation849 S.W.2d 677
Decision Date16 March 1993
Docket NumberNo. 62100,62100
PartiesSTATE of Missouri, Respondent, v. Felicia SMITH, Defendant/Appellant.
CourtCourt of Appeal of Missouri (US)

Gary E. Brotherton, Columbia, for defendant/appellant.

William L. Webster, Atty. Gen., Michael J. Runzi, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Presiding Judge.

In this jury-tried case, defendant, Felicia Smith, appeals from convictions of felony possession of a controlled substance (cocaine) in violation of § 195.202 RSMo (Supp.1991), misdemeanor possession of a controlled substance (marijuana) in violation of § 195.202 RSMo (Supp.1991), and misdemeanor possession of drug paraphernalia in violation of § 195.233 RSMo (Supp.1991). Defendant was sentenced to concurrent terms of three years' imprisonment for the felony conviction and six months' imprisonment for each of the misdemeanor convictions. We affirm.

The evidence adduced at trial established the following facts. On December 25, 1991, Officer Jimmy Smith of the Cape Girardeau Police Department observed a vehicle carrying a passenger he recognized as Marie Murphy, a woman wanted on a felony warrant. Smith followed the vehicle, confirmed that Murphy was wanted, and called for a backup officer.

The vehicle pulled to the curb and stopped in the 500 block of South Hanover; the driver, defendant, exited and walked toward a residence. Smith stopped defendant and asked to see her driver's license. Defendant returned to the vehicle and retrieved her purse from the back seat; she then walked toward the rear of the vehicle, placed her purse on the trunk, and produced her driver's license from inside the purse. Smith radioed police headquarters, confirmed that defendant was wanted on an outstanding misdemeanor warrant, and placed her under arrest. A backup officer arrived at the scene and arrested Murphy.

During an inventory search of defendant's purse, Smith found a compact case with a white residue on its inside mirror and a lipstick tube containing a green leafy substance wrapped in cellophane. The leafy substance was tested and found to contain the hallucinogenic portion of marijuana. The sample weighed .61 grams. The white residue on the mirror was also tested and found to contain cocaine. The residue was not weighed because the weighing of such a small amount would require the use of a special balance. However, there remained a sufficient quantity for retesting.

At trial, defendant admitted she owned the purse and its contents but denied ownership of the compact case or lipstick tube. Defendant testified that when Smith asked for her driver's license, she retrieved her purse from the front seat of the car and emptied its contents onto the seat, which was already littered with miscellaneous items. Defendant also testified that Murphy was in the car with defendant's purse while defendant spoke with Smith. Lastly, defendant testified that after she was handcuffed, Smith emptied defendant's purse and retrieved the car keys from inside it.

In point one, defendant contends the trial court erred in denying her motion to dismiss and motion for judgment of acquittal with respect to the cocaine possession charge. Defendant argues the state presented insufficient evidence that defendant knowingly and consciously possessed cocaine at the time of her arrest, "since the residue found on the mirror merely established that someone possessed cocaine sometime."

Our review of defendant's challenge is limited to a determination of whether the evidence is sufficient to build a submissible case and whether there is sufficient evidence from which reasonable persons could find defendant guilty. State v. Smith, 808 S.W.2d 24 (Mo.App.1991).

To sustain defendant's conviction for possession of cocaine, the state must prove defendant knowingly and intentionally possessed the controlled substance and knew the nature of that substance. ID. AT 25. 1 Although possession may be actual or constructive, it must be intentional. Id. Further, both possession and knowledge may be shown by circumstantial evidence. Id.

Defendant contends there was insufficient evidence to demonstrate her knowing and intentional possession of the cocaine, given the small amount found on the mirror. In making this argument, defendant relies on State v. Young, 427 S.W.2d 510 (Mo.1968) and State v. Polk, 529 S.W.2d 490 (Mo.App.1975).

In Young, our supreme court recognized authority holding that the quantity of a controlled substance might be so small as to indicate there had been merely a prior, and not present, possession of the substance. Young, 427 S.W.2d at 512 (citing State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465, 469 (1965)). However, the Young court also noted that under the Uniform Narcotic Drug Act, possession of even a "modicum" of an illegal drug was held sufficient to bring a defendant within the purview of the statute. Id. The question in Young was not whether there was a measurable quantity of heroin, but whether there was such a quantity that the defendant could experience an effect from it. Id. 427 S.W.2d at 513. Young is distinguishable on this ground.

In Polk, this court held there is insufficient evidence to demonstrate a defendant's knowing, intentional, and conscious possession of a controlled substance where the only evidence to support the conviction is an amount "which is so minuscule 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." Polk, 529 S.W.2d at 494. However, the court limited its holding to the peculiar facts and circumstances of the case, id., and noted there was no direct evidence that the defendant had actual possession of the heroin since it was not found "on or about his person or in his immediate vicinity." ID. AT 492. 2

Here, we find sufficient evidence to establish defendant's knowing and intentional possession of cocaine. The cocaine residue was found on the mirror of a compact case inside defendant's purse, which contained numerous other personal items belonging to defendant. The residue was visible when the case was opened. Defendant retrieved her driver's license from the purse at the time of her arrest and thereby exercised direct physical control over the purse. The presence of the cocaine in close proximity to defendant and next to her personal belongings was sufficient to establish defendant was in actual possession and had control of the drug. See State v. Trice, 575 S.W.2d 739, 741 (Mo.App.1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2891, 61 L.Ed.2d 316 (1979).

As a case of constructive possession, therefore, Polk is clearly distinguishable. State v. Miller, 588 S.W.2d 237, 241 (Mo.App.1979). Moreover, Polk involved an immeasurable amount of a controlled substance which was entirely consumed by the identification testing. Polk, 529 S.W.2d at 492. Here, the cocaine residue was of a sufficient quantity to be weighed by a special balance, and there remained a sufficient quantity available for retesting. These facts further distinguish Polk. See State v. Padgett, 557 S.W.2d 731, 733 (Mo.App.1977).

Lastly, the cocaine in defendant's possession was found on the mirror of a compact case which also contained a lipstick tube of wrapped marijuana. These additional facts support the conclusion that defendant possessed the cocaine with the requisite knowledge and intent. See State v. Spraggins, 839 S.W.2d 599, 604 (Mo.App.1992). Defendant's mistaken belief that she had used all the cocaine on the mirror does not deprive her of the requisite knowledge for possession. Smith, 808 S.W.2d at 26. Point one is denied.

In her second point, defendant contends the trial court plainly erred in failing to declare a mistrial, sua sponte, in response to certain comments made by the prosecutor during closing argument. Appellant acknowledges that review is limited to plain error, since no objection to the argument was made at trial. Rule 30.20.

The prosecutor argued:

Now, you will get the opportunity to sentence this defendant. One of the interesting things is, that here we are in a city that things are relatively calm; that we really don't have a huge overpowering drug problem here; and that just simple use probably is a victimless crime anyway. I want you to remember something, that it's a victim--not a victimless crime in any respect because each one of us are [sic] victims in this case. Each one of us run [sic] the risk of--both financially and otherwise, as a result of this kind of activity. The war on drugs is right here. As the old adage goes, we haven't gotten the sand--the line in the sand is right here. You're on the front of it. It's up to you to send a message to these people that we're not going to tolerate this--not even a little bit. We're not going to allow our city and our county to become a haven for people that use this material or in any respect involve themselves in this kind of activity. That's what I'm asking you to send a message to. And I think that under the circumstances, a harsh penalty will send that. And I'm asking you to do that. I'm asking you to be harsh about this because this isn't a simple...

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    • June 4, 2019
    ...rights. State v. Gola, 870 S.W.2d 861, 865 (Mo.Ct.App. 1993); State v. Lumpkin, 850 S.W.2d 388, 395 (Mo.Ct.App. 1993); State v. Smith, 849 S.W.2d 677, 681 (Mo.Ct.App. 1993); State v. Hatcher, 835 S.W.2d 340, 346 (Mo.Ct.App. 1992); State v. Williams, 1A1 S.W.2d 635, 638 (Mo.Ct.App. 1988). In......
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