State v. Wright
| Decision Date | 16 September 2014 |
| Docket Number | No. WD 76163.,WD 76163. |
| Citation | 445 S.W.3d 623 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Bobby WRIGHT, Appellant. |
Dora Fichter, Jefferson City, for Respondent.
Damien Sepher Bhakti De Loyola, Kansas City, for Appellant.
Before Division Two: VICTOR C. HOWARD P.J., JAMES E. WELSH, ANTHONY REX GABBERT JJ.
Bobby Wright appeals the circuit court's judgment finding him guilty of possessing more than five grams of marijuana with intent to deliver. Wright raises two points on appeal. Wright argues that the circuit court erred in overruling his motions for acquittal and entering a judgment of conviction on the possession of a controlled substance with intent to deliver because there was insufficient evidence to support the finding that he had (1) access and control over the premises where the marijuana was found and (2) constructive possession of the marijuana. We reverse and remand for entry of a judgment of acquittal.1
On March 18, 2011, law enforcement officers conducted a controlled buy at the residence on 917 West Third Street, Apartment A, in Sedalia, Missouri (the “Apartment”). Detective David Smith searched a confidential informant and gave him $20. Detective Smith dropped off the confidential informant about one-and-a-half blocks from the residence and saw the confidential informant speak to Wright on the front porch. Wright and the confidential informant went inside and stayed there for about three minutes. Then both Wright and the confidential informant came outside. The confidential informant walked away and met with Detective Smith at another location where the confidential informant gave Detective Smith four small baggies of marijuana.
The following week, the police saw Wright at the Apartment numerous times. Wright's van was usually parked in an alley behind the Apartment.
Detective Smith and Detective Ryan Reed conducted surveillance of the Apartment for two to three hours on March 28, 2011. The detectives observed Wright on the porch and different people pulling up in cars. When somebody pulled up, an unidentified man associated with Wright approached the people in the car, and then spoke to Wright. Next, the man and Wright went inside the Apartment. Wright and the man came back in less than one minute, and the man approached the vehicle where he exchanged something with the people in the car. The detectives saw one woman leave her car, walk to Wright, and speak with him personally. The woman was patting her pocket while speaking to Wright. The woman and Wright walked inside, and came back out within a minute or two. The woman went to her car. Wright's van was parked in an alley behind the Apartment during the surveillance.
Detective Smith obtained a search warrant later that day, and gathered a team to execute the warrant. Detective Reed continued with the surveillance of the Apartment until the execution of the search warrant. The unidentified man left, but the detective did not see Wright leave.
During the execution of the search warrant, they found two women in the Apartment but not Wright. One of the women in the Apartment was Wright's daughter Ashley, who was arrested. The police found more than one hundred grams of marijuana throughout the house including in the living room couch, under suspended ceiling tiles in the computer room, and inside a computer printer. Officers also found multiple individual bags for packaging marijuana.
The police asked family members to tell Wright to call the police. Wright called Detective Smith. The detective asked Wright to come to the police station to talk, but Wright said that he had no intention to turn himself in. No charges were filed against Wright at that time.
On November 30, 2011, Officer Kevin Klein stopped Wright for a traffic violation. Wright consented to a search of the van. Officers found an open bottle of vodka and multiple baggies of marijuana in a hidden roof compartment. Wright said that the marijuana was not even an ounce and asked Officer Klein to cut him a deal. Wright further told the officer that he had not sold marijuana for a couple of months.
Wright was arrested and taken to the police department. Wright told Detective Smith that he had not sold marijuana for more than a month. Wright talked about the difficulties of obtaining marijuana, and said that he got marijuana from Fish, whom the detective knew was Romone Fisher. Fisher had been arrested for marijuana possession.
Wright was charged with two counts of possession of marijuana. One count of possession of more than five grams of marijuana on November 30, 2011 and the second count of possession of marijuana with intent to deliver more than five grams on March 28, 2011. At the close of all the evidence, the jury found Wright guilty of possession of more than five grams with intent to deliver for the events on March 28, 2011, and acquitted him of the charge of possession of marijuana related to the vehicular search on November 30, 2011. The court sentenced Wright to five years imprisonment. Wright appeals.
As we find Wright's second point is dispositive, we need not address his first point. In his second point on appeal, Wright argues that the circuit court erred in overruling his motion for acquittal because the evidence was insufficient to support the conviction. Wright contends that the evidence did not show that Wright had knowledge of the presence of marijuana on the premises and that he exercised control over it. We agree.
On review, this Court accepts as true all evidence favorable to the verdict, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). “In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” Id. This Court, however, “ ‘may not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” State v. Loyd, 326 S.W.3d 908, 915 (Mo.App.2010) (quoting State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) ).
Wright was charged with and convicted of possession with the intent to deliver more than five grams of marijuana. As such, the State had the burden to prove that Wright had (1) conscious and intentional possession of the marijuana, either actual or constructive, (2) awareness of the presence and nature of the marijuana, and (3) the intent to deliver the substance. State v. McCleod, 186 S.W.3d 439, 443–44 (Mo.App.2006). See also 195.211, RSMo 2000.2
The only dispute on appeal is that there was insufficient evidence on the record to support the finding that Wright had “conscious and intentional possession of the marijuana, either actual or constructive.” Id. “A person has actual possession if he has the substance on his person or within easy reach and convenient control.”§ 195.010(32). A person has constructive possession where that person “has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons.” Id.
As Wright was not at the Apartment when it was searched on March 28, 2011, the State failed to prove actual possession. Thus, the State must prove Wright had constructive possession over the marijuana. Such analysis requires...
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