State v. Warren
| Decision Date | 16 March 2010 |
| Docket Number | No. WD 70671.,WD 70671. |
| Parties | STATE of Missouri, Respondent, v. Melissa R. WARREN, Appellant. |
| Court | Missouri Court of Appeals |
Margaret M. Johnston, Columbia, MO, for Appellant.
Chris Koster, Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for Respondent.
Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
Melissa R. Warren appeals the circuit court's judgment convicting her of possession of more than thirty-five grams of marijuana. She claims that there was insufficient evidence to support her conviction and that the circuit court erred in overruling her motion to suppress the marijuana and drug paraphernalia seized from her home. We affirm.
Viewed in the light most favorable to the circuit court's judgment, the evidence established that on the afternoon of June 7, 2007, Deputy Steven DeVenney of the Boone County Sheriff's Department was dispatched to Warren's address to respond to an activated burglar alarm. According to DeVenney, when a security agency contracts with a homeowner, the security company contacts the police any time the homeowner's security alarm is triggered and asks the police to check on the alarm. When DeVenney arrived at Warren's house, the alarm was still sounding. DeVenney checked the perimeter of the house. He did not find anyone outside, so he went to the front door. DeVenney noticed that the front door was unlocked and ajar. He contacted the dispatcher to ensure that the alarm was still "active," that is, that the security company had not received an authorized cancellation of the alarm. The dispatcher confirmed that the alarm was still active. DeVenney asked the dispatcher to send backup.
Shortly thereafter, Deputy Eli Burkholder arrived. He and DeVenney knocked on the front door and announced their presence. No one responded. The deputies pushed the door open. Still outside the house, they announced their presence a second time. No one answered. They decided to go inside the house to ensure that there was not a crime in progress or a victim in need of assistance inside the residence. The deputies went through the house but did not find anyone.
The deputies did, however, find marijuana and drug paraphernalia in plain view. In the kitchen, they saw loose marijuana scattered on the countertop near the stove. Near the loose marijuana, they saw a digital scale with bits of marijuana on top of it. There were plastic baggies by the scale. In the master bedroom, the deputies saw marijuana on an end table, along with more plastic baggies and cigar boxes.1 The deputies photographed the marijuana and paraphernalia and secured those items.
As the deputies were securing the items, James Hayes arrived. Hayes was Warren's longtime boyfriend. He lived in the house with Warren and their two children. Hayes declined to give his consent to a search of the house, so the deputies called a detective to obtain a search warrant. Hayes called Warren and told her that the police were at the house and that she needed to come home. Hayes then left.
While the deputies were waiting for the search warrant, Warren came home. Warren was "very, very agitated" when she arrived. She began yelling and cursing at the deputies. She asked them several times to leave, and she repeatedly told DeVenney, "Get the fuck up out of my shit."
Despite DeVenney's telling Warren that she could not enter the house because they were in the process of obtaining a search warrant, she went into the house. DeVenney did not want to forcibly restrict her from going into the house because she told him that she was pregnant. The deputies followed her. As Warren and the deputies walked through the house, she continued to yell and curse at them. When Warren entered the kitchen, she stopped and looked briefly at an ashtray with marijuana cigarette butts in it that was on the kitchen table. According to Burkholder, Warren did not appear to be surprised by the contents of the ashtray.
After Warren checked every room in the house, she walked into the garage. As the deputies tried to explain to her why they were there, they heard a noise at the back door of the garage. Warren pulled back a black trash bag that was hanging on the door's window and found Hayes standing outside. She covered the window, turned back to the deputies, and resumed yelling and cursing at them.
Warren finally calmed down by the time the detectives arrived with the search warrant. During the ensuing search, the detectives found evidence of marijuana and drug paraphernalia throughout Warren's house. In a kitchen cabinet, the detectives found two bricks of marijuana that together weighed 903.83 grams, which is approximately two pounds. On the same shelf in that cabinet, they found a large digital scale that had visible marijuana residue on it. In a drawer below the cabinet, the detectives found plastic baggies and loose marijuana. The drawer also contained mail addressed to Warren. When they searched the master bedroom, the detectives found a marijuana bong in plain view. In the garage, they found several small suitcases containing marijuana residue. They also found packing material similar to the material that was used to pack the two bricks of marijuana found in the kitchen cabinet. Additionally, the detectives found marijuana seeds, stems, and small pieces of marijuana all over the garage floor, and tools with marijuana residue on them.
The State subsequently charged Warren with the class C felony of possession of a controlled substance, namely, more than thirty-five grams of marijuana, in violation of section 195.202.1, RSMo 2000. A bench trial was held. The court found Warren guilty. The court sentenced her to five years imprisonment but suspended execution of the sentence and imposed five years of supervised probation. Warren appeals.
In her first point, Warren claims that there was insufficient evidence to prove that she consciously and intentionally possessed more than thirty-five grams of marijuana and was aware of its presence and nature. She concedes that she did not adequately preserve this claim for appeal because she failed to move for a judgment of acquittal at the close of all the evidence. State v. Willis, 97 S.W.3d 548, 556 (Mo. App.2003). She asks for plain error review.
Review for plain error under Rule 30.20 involves a two-step process. State v. Brink, 218 S.W.3d 440, 448 (Mo. App.2006). First, we must determine if the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted. Id. "Errors are plain if they are evident, obvious, and clear." Id. "In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20." Id. "If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." Id. "If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted." State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999). We, therefore, exercise the discretion granted to us by Rule 30.20 to consider as plain error Warren's claim that the evidence was insufficient to prove possession.
When reviewing a challenge to the sufficiency of the evidence, our role is limited to determining whether sufficient evidence exists from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. State v. Duff, 281 S.W.3d 320, 325 (Mo. App.2009). In making this determination, we view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard all contrary evidence and inferences. Id. We defer to the circuit court's decision as to the credibility and weight of the witnesses' testimony, and we recognize that the circuit court "may believe all, some, or none of the testimony of a witness." State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).
To obtain a conviction against Warren for possession of more than thirty-five grams of marijuana, the State had to prove that she (1) consciously and intentionally possessed the marijuana, either actually or constructively; and (2) was aware of or knew of the presence and nature of the marijuana. § 195.202.1; State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). "Both possession and knowledge may be proved by circumstantial evidence." Purlee, 839 S.W.2d at 587.
Warren did not have actual possession of the marijuana found in her kitchen cabinet, as the police did not find it on her person or within her easy reach or convenient control. Duff, 281 S.W.3d at 326. Warren can be deemed to have had constructive possession of the marijuana, however, if the facts support an inference that she had knowledge of its presence. Id. at 327. A person has constructive possession over a substance if she "'has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons.'" State v. Chavez, 128 S.W.3d 569, 574 (Mo.App.2004) (citation omitted). "At a minimum, constructive possession requires a showing of the defendant's access to and control over the premises where the substance was found." Duff, 281 S.W.3d at 327.
A "defendant's exclusive control over the premises is sufficient to raise an inference of possession and knowledge." Id. In this case, the evidence showed that, although the home was Warren's, she did not have exclusive control over it because Hayes lived with her. When premises are jointly controlled, evidence of additional incriminating circumstances that imply that the defendant knew that the drugs were present and that she had them under her control is required. Id. Additional incriminating circumstances may include the...
To continue reading
Request your trial