State v. Taylor

• Decision Date: 13 February 2007
• Docket Number: No. ED 87634.,ED 87634.
• Citation: 216 S.W.3d 187
• Parties: STATE of Missouri, Respondent, v. James V. TAYLOR, Defendant/Appellant.
• Court: Missouri Court of Appeals

216 S.W.3d 187

STATE of Missouri, Respondent, v. James V. TAYLOR, Defendant/Appellant.

No. ED 87634.

Missouri Court of Appeals, Eastern District, Division Three.

February 13, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 15, 2007.

Kent Denzel, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

The defendant, James V. Taylor, appeals the judgment entered upon his conviction by a jury for possession of cocaine base in violation of Section 195.202 RSMo. (2000).¹ Upon appeal, he challenges the search of his automobile and the sufficiency of the evidence in support of his conviction. We deny these challenges. However, we do find plain error in the State's argument and submission when the State urged the defendant's conviction based on items that were neither actually nor constructively possessed by the defendant. Therefore, we reverse the judgment of conviction and remand the cause for a new trial.

We shall recite only the essential facts. In the early morning hours of February 11, 2005, the defendant's car was stopped by a Farmington police officer who had run the car's license plate number and discovered it belonged to a van. He pulled over the car and asked for the defendant's license and registration. The defendant acknowledged his driver's license was revoked. From his observations, the officer believed the defendant to be under the influence of drugs. The officer instructed the defendant to exit his car and placed him under arrest for driving while revoked; he then seated the defendant in the rear of the officer's patrol car. The officer removed the defendant's wife from the defendant's car so that he could search it. On the hump of the front floorboard was a small trash container. Underneath the liner of the container was a crack pipe which, after waiving his Miranda rights, the defendant conceded that he owned and used to smoke crack. However, the defendant's wife also claimed the pipe was hers and was arrested. Her purse was seized from her under circumstances that are far from clear. Later the officer searched the defendant's wife's purse at the police station. Within her purse, the officer found another crack pipe and a small rock of cocaine base, which was later determined to weigh 0.5 of a gram.

The defendant was charged with possession of cocaine base. Noting that the information failed to particularize which items were the subject of this prosecution, the defendant moved for a bill of particulars. The State responded that it was seeking the defendant's conviction for possession of cocaine base not only because of the crack pipe discovered underneath the liner of the small trash container, which the defendant admitted was his, but also because of the crack pipe and rock found in the defendant's wife's purse. After a jury trial, the defendant was convicted and sentenced to fifteen years' imprisonment. He appeals.

The defendant claims the trial court erred in admitting the evidence seized as a result of the search of his car. A search incident to arrest is appropriate even for traffic violations, including driving without a valid driver's license. State v. Reed, 157 S.W.3d 353, 357 (Mo.App. W.D.2005). "[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. . . . [He] may also examine the contents of any containers found within the passenger compartment. . . ." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (footnotes omitted). As long as an arrestee is a "recent occupant" of a vehicle, officers may search the vehicle incident to the recent occupant's arrest. Thornton v. United States, 541 U.S. 615, 623-24, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004).² The search of a vehicle is valid as incident to the defendant's arrest, even where the defendant is handcuffed in the officer's car at the time of the search. State v. Scott, 200 S.W.3d 41, 44 (Mo.App. E.D.2006) (en banc). Here, it is undisputed that the defendant was the subject of a lawful custodial arrest on a charge of driving while revoked. The arresting officer's search of the defendant's vehicle followed immediately upon the defendant's removal from the car and arrest. As to the officer's search of the defendant's wife's purse, the defendant claims that this, too, was illegal. However, the only illegality he argues is that this search was somehow the product of the illegal search of the car. We believe that the search of the car was valid as incident to the defendant's lawful custodial arrest. Therefore, because the search of the wife's purse arose from a prior legal search, it was not the "fruit of a poisonous tree." See State v. Mosby, 94 S.W.3d 410, 419 (Mo.App. W.D.2003) (finding that evidence not derived from illegal government conduct cannot be deemed "fruit of the poisonous tree"). We reject the defendant's challenges to the searches and seizures of evidence.³

The defendant also contests the sufficiency of the evidence to sustain his conviction. He asserts there is insufficient evidence that he possessed cocaine base, residue of which was found in the crack pipe he admitted was his. The laboratory's scale can weigh items as small as 0.01 of a gram, but the residue here was so minimal that it was determined to be unweighable. The defendant cites State v. Baker, 912 S.W.2d 541 (Mo.App. W.D. 1995), and State v. Polk, 529 S.W.2d 490 (Mo.App.1975), cases in which a mere residue or trace amount of drugs was found insufficient to establish the defendant's knowing possession. However, in each of these cases, the holding was limited to the particular circumstance where the only evidence of the defendant's knowing possession was his possession of a mere residue. Indeed, in each of these cases, there was evidence that the defendant might have possessed the drug residue without an awareness of the residue's presence. Here, on the other hand, the defendant conceded the crack pipe was his and indeed appeared to be under the influence of a drug at the time of his arrest. Instead, we find more apposite State v. McKelvey, 129 S.W.3d 456 (Mo.App. S.D.2004) and State v. Smith, 808 S.W.2d 24 (Mo.App. E.D.1991), cases in which a possession conviction was upheld despite the fact that the amount possessed was merely a residue or trace amount, because there was other corroborating evidence of knowing possession of the residue.

Our Supreme Court has spoken little on the threshold requirements for a conviction of possession of a de minimis amount of drugs.⁴ The Court has held it proper to convict of illegal possession of drugs even though the defendant had an insufficient quantity of drugs to affect his nervous system. State v. Young, 427 S.W.2d 510, 513 (Mo.1968)(per curiam); State v. Jefferson, 391 S.W.2d 885, 890 (Mo.1965). The Supreme Court has also made clear that possession is the gravamen of the charges, not the intent to make some use of the drug. Young, 427 S.W.2d at 513. We agree with the logic of these holdings. The Supreme Court has further held the possession of even "a modicum" of an illegal drug can support a defendant's conviction. Id.; Jefferson, 391 S.W.2d at 890. But the Court did not define what constitutes "a modicum."

Holmes has noted that the concept of possession has fallen into the hands of philosophers.⁵ We think it will be helpful to focus on the ultimate question. The question that must be answered is whether a defendant, knowing of the presence and nature of an illegal drug, possessed it. On review, we are to accept as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). We then are to determine whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. A person is not guilty of an offense in the absence of his voluntary act. Section 562.011.1; State v. Farris, 125 S.W.3d 382, 391 (Mo.App. W.D.2004). Possession is a voluntary act if the possessor knowingly procures or receives the thing possessed, or having acquired control of it was aware of his control for a sufficient time to have enabled him to dispose of it or terminate his control. Section 562.011.3; Farris, 125 S.W.3d at 392. Possession can be actual or constructive. Section 195.010(34) RSMo. (Supp.2005); MAI-CR3d 325.02; State v. Morris, 41 S.W.3d 494, 497 (Mo. App. E.D.2000). A person has actual possession if he has the substance on his person or within easy reach and convenient control. Section 195.010(34) RSMo. (Supp.2005); MAI-CR3d 325.02; State v. Bacon, 156 S.W.3d 372, 377 (Mo.App. W.D. 2005). A person who is not in actual possession has constructive possession if he has the power and intention at a given time to exercise dominion or control over the substance. Section 195.010(34) RSMo. (Supp.2005); MAI-CR3d 325.02; State v. Metcalf, 182 S.W.3d 272, 274-75 (Mo.App. E.D.2006). Importantly, both actual and constructive possession guard against a defendant's control of the substance.⁶

We note that the drug statutes do not establish a minimum amount necessary to sustain a conviction for illegal possession.⁷ We believe that whether the amount in issue is called a residue, a trace amount, or a modicum of the illegal substance is of no import. Further it does not matter if it can be weighed. Indeed, if weight alone were the dividing line between legal and illegal conduct, a defendant's guilt might be dependent on the quality and sophistication of the laboratory scales in his case. Rather, we hold that the defendant's guilt must be dependent on his acts and knowledge—whether his knowing possession may be fairly inferred given...