State v. West
| Decision Date | 08 November 1977 |
| Docket Number | No. 38677,38677 |
| Citation | 559 S.W.2d 282 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Shelley LaVerne WEST, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
James B. Herd, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant-appellant Shelley LaVerne West appeals from a judgment of conviction finding her guilty of unlawfully and knowingly having in her possession and under her control a quantity of "PCP" and a sentence of six months in the county jail. Defendant challenges the sufficiency of the evidence, which was wholly circumstantial, to sustain the conviction.
We conclude that there was no substantial evidence to show that the defendant knowingly possessed and had under her control the "PCP" in question and that the judgment should be reversed. In reviewing the evidence, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state.
On April 18, 1975, defendant and several of her friends were having a party in a mobile home located in Montgomery City, Missouri. The mobile home was rented by one Vicky Callaway. Apparently the defendant had been staying at the mobile home for a few days prior to the date of the party. No evidence was adduced, however, indicating that the mobile home was defendant's permanent residence.
During the late evening hours of April 18, Sheriff Clarence Landrum of Montgomery County, executed a search warrant for the mobile home. Upon arrival at the mobile home, the sheriff noticed several automobiles parked near the premises. One such automobile was owned by the defendant. At approximately 11:45 p. m., the sheriff arrested ten or eleven persons from the mobile home. The officers seized several controlled substances.
Among those arrested were the defendant, her younger brother, Sidney West, and her boyfriend, Randy Hampton. The record does not indicate whether Sidney West or Randy Hampton were formally charged after the arrest. Defendant was not charged but was released to her mother at 11:00 a. m., the following morning, some fourteen hours after the arrest. As a condition to her release, defendant was required to execute a consent form to the search of her automobile located near the mobile home.
At the time of her release, defendant was aware of the impending search. Sheriff Landrum informed the defendant and her mother that the vehicle would be searched some time in the afternoon. The vehicle was not under surveillance at any time prior to or after defendant's release.
The actual search took place after 1:00 p. m., on April 19, 1975, some two hours after the defendant's release. During this two hour period, the defendant and her mother returned to the mobile home. Some time after 1:00 p. m., several members of the Montgomery County sheriff's office and the state highway patrol arrived at the trailer and began to search a number of the vehicles. Defendant handed the keys to her vehicle to Trooper Magruder. The trooper, after searching the front and rear area discovered a small box in the trunk of defendant's vehicle. The box contained several white pills. Defendant, owner of the vehicle, was subsequently arrested and charged with possession of a controlled substance. The substance was later determined to be phencyclidine, commonly referred to as "PCP."
Testimony adduced at the trial included that of Sheriff Clarence Landrum, deputy sheriff Ambrose Oligschaeger; Missouri Highway Patrolmen Raymond Magruder and Joseph Crow; Wilma See, defendant's mother, and Sidney West, defendant's brother.
Both of the sheriffs and Patrolman Magruder testified to the chain of events as set out above. None of the three offered testimony linking the defendant to the controlled substance, other than the ownership of the vehicle. On cross-examination during the state's case, Patrolman Magruder testified to the operation of defendant's car by her brother Sidney, and her boyfriend, Randy.
Mrs. Wilma See testified that her daughter had purchased the vehicle about three weeks prior to the arrest. Mrs. See stated her son, Sidney West, and Randy Hampton drove the car. Mrs. See testified further that at one point while at the mobile home, after her daughter's release, the defendant went into the mobile home, and alighted with the keys to her automobile. She entered the front of the automobile, but did not open the trunk.
Defendant's brother, Sidney West, was called as a rebuttal witness by the state. He admitted that he and Randy Hampton drove the automobile, but denied any knowledge of the box containing the PCP. Sidney West testified further that he had placed a spare tire in the trunk of the car the day before defendant's arrest, and had not seen the box.
After defendant's motion for judgment of acquittal at the close of all the evidence was denied, the jury returned a verdict of guilty.
In our opinion, the evidence does not support a conviction for knowingly having possession and control of a controlled substance by the defendant. Section 195.020, RSMo 1969, sets out the prohibited acts relating to controlled substances. This section neither defines possession, nor is a definition included in § 195.010. Missouri case law requires the state to prove actual or constructive possession of the substance together with knowledge of the fact of possession. State v. Worley, 375 S.W.2d 44 (Mo.1964); State v. Burns, 457 S.W.2d 721 (Mo.1970). 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.' . . ." State v. Young, 427 S.W.2d 510, 513 (Mo.1968). Actual possession is not necessary to sustain a conviction, constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance. One such incriminating fact is a defendant's access to an area in which drugs are found. State v. Brickley, 521 S.W.2d 16 (Mo.App.1975). Proximity of the controlled substance to the person who acknowledges ownership will permit a finding of possession which in turn will support...
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