State of Missouri vs. Semaj J. Foster

• Court: Missouri Court of Appeals
• Decided: August 19, 2025
• Docket: WD87121
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

STATE OF MISSOURI, ) ) Respondent, ) WD87121 ) V. ) OPINION FILED: ) AUGUST 19, 2025 SEMAJ J. FOSTER, ) ) Appellant. )

Appeal from the Circuit Court of Grundy County, Missouri The Honorable Steven Daniel Hudson, Judge

Before Special Division: Gary D. Witt, Presiding Judge, Thomas N. Chapman, Judge and Zel M. Fischer, Special Judge

Semaj J. Foster appeals the judgment of the Circuit Court of Grundy County,

Missouri ("trial court"), convicting him, after a jury trial, of one count of drug trafficking

in the first degree for knowingly attempting to transport and distribute 51 grams of

methamphetamine, section 579.065;1 one count of drug trafficking in the first degree for

knowingly attempting to transport and distribute 12 grams of crack cocaine, section

579.065; one count of resisting arrest, section 575.150; and one count of careless and

imprudent driving involving an accident, section 304.012. On appeal, Foster alleges

1 All statutory references are to the Revised Statutes of Missouri (2016), as updated by the applicable supplement. there was insufficient evidence to support his convictions for drug trafficking. We affirm

the judgment of the trial court in part and reverse in part.

Factual and Procedural Background

On June 3, 2023, Foster was driving a vehicle owned by his mother ("Mother"),2

who was a passenger in the vehicle. Noticing that the vehicle did not have a front license

plate, a Missouri State Trooper ("Trooper") who was on patrol stopped the vehicle. After

Trooper received Foster's and Mother's identification, he asked Foster to exit his vehicle,

but Foster instead drove away. Trooper followed Foster for approximately two miles as

Foster drove at speeds up to 120 miles per hour. Foster took an exit and attempted to get

right back onto the interstate, but he lost control of his vehicle and crashed into an

embankment, totaling the vehicle. Foster ran from the scene on foot. Trooper started to

pursue Foster on foot, but noticed that Mother was trapped inside the vehicle and was

bleeding from her face, so he decided to get Mother out of the car and administer first aid

instead. Trooper went back to his car to get his medical kit and to use his radio to call for

backup to apprehend Foster.

When Trooper returned to the wreckage, he saw that Mother had gone into the

back seat of the vehicle and was "possibly tampering with evidence or hiding evidence or

grabbing a gun." He advised Mother to get out of the vehicle and show him her hands.

At about this time another trooper had apprehended Foster and returned him to the scene

of the crash.

2 Pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not include names of witnesses or other individuals who are not parties. 2 Trooper searched the vehicle and found three bags in the rear of the vehicle.

Trooper believed there were various controlled substances in the bags. Trooper testified

that he believed the substances were amphetamine, methamphetamine, crack cocaine,

marijuana, weigh scales, baggies, pre-rolled marijuana joints, and a green liquid he

believed to be methadone. A firearm and two loaded magazines were also found at the

scene. Initially, Trooper believed some rainbow-colored powder and rainbow-colored

pills were fentanyl based on his experience and training, but Trooper changed his mind

and decided the multicolored substance was methamphetamine after Mother informed

Trooper that Foster "was going through a meth problem." He believed another substance

was crack cocaine based on its appearance, which was "almost like chunky soap but also

like powder at the same time."3 Trooper weighed the substances he seized, and the

suspected fentanyl or methamphetamine weighed 51 grams; the suspected crack cocaine

weighed 12 grams.

The State intentionally did not call an expert from the Highway Patrol laboratory

to testify at trial. The State argued to the trial court that the laboratory report, without the

testimony of an expert, was admissible through the testimony of the Trooper because

under the "federal rules of evidence . . . [p]eople can only testify to documents they have

3 The substances recovered at the scene were transported to the Highway Patrol lab for drug analysis, but the State did not produce any admissible evidence of the results of that analysis. Trooper could not testify regarding the lab testing because the chemical testing process was not within his expertise. See State v. Watt, 884 S.W.2d 413, 415 (Mo. App. E.D. 1994) (criminologist could not testify about chemical tests conducted by a former employee who did not herself testify). The lab report was, therefore, hearsay, and there was no foundation for the test results. The trial court correctly sustained Foster's objection to the admission of the lab report. 3 personal knowledge of and [Trooper] has personal knowledge of the [lab report]. He's

authenticated it, he said it's a genuine and accurate copy of what he's already reviewed."

The State further argued that the results of the testing were not "scientific" so no expert

was needed so long as the State did not go into the methods used by the laboratory

technician in performing the analysis. The argument was essentially that, because the

Trooper has personal knowledge that the substances he seized did test positive for the

substances he suspected they were, he could testify to what the test results showed. "We

got a certified record from the Highway Patrol. Something that is completely routine.

[Trooper] works for the Highway Patrol. This is something they do all of the time and

this is something of which [Trooper] has personal knowledge."

Trooper testified that he had significant training on "narcotic related incidents,"

including a recent two-day canine and narcotics training, and he had attended "over 200

hours of narcotic classes." Trooper was allowed to testify, over objection, as to what he

believed the substances to be, and his opinions were based on the appearance of the

substances and Mother's comment.

The jury found Foster guilty of all four counts, and the court sentenced Foster to

concurrent sentences of thirteen years in the Department of Corrections on each of the

trafficking counts, four years for resisting arrest, and one year in the county jail for

careless driving. This appeal follows.

4 Standard of Review

"When reviewing the sufficiency of evidence supporting a criminal conviction, the

Court does not act as a 'super juror' with veto powers, but gives great deference to the

trier of fact." State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). We examine

whether sufficient evidence was presented at trial to permit a reasonable fact finder to

find the defendant guilty beyond a reasonable doubt. State v. Berwaldt, 652 S.W.3d 793,

796 (Mo. App. W.D. 2022). We accept as true all evidence favorable to the verdict,

including all favorable inferences properly drawn therefrom, and we disregard all

evidence and inferences to the contrary. Id. "The inquiry does not require a court to ask

itself whether it believes that the evidence at trial established guilt beyond a reasonable

doubt." State v. Woods, 284 S.W.3d 630, 639 (Mo. App. W.D. 2009) (internal quotation

omitted). Instead, the relevant question is whether "any rational fact-finder could have

found the essential elements of the crime beyond a reasonable doubt." Berwaldt, 652

S.W.3d at 796 (internal quotation omitted).

Sufficiency of the Evidence

Foster raises two points on appeal that make essentially the same argument as to

the two counts of drug trafficking, and we will discuss the two points together. Foster

contends that there was insufficient evidence to prove beyond a reasonable doubt that the

substances Trooper collected from the vehicle were, in fact, methamphetamine and crack

cocaine, respectively. A charge of trafficking drugs pursuant to section 579.065 requires

proof that the defendant distributed, delivered, manufactured, produced or attempted to

distribute, deliver, manufacture or produce certain threshold amounts of specific

5 controlled substances. State v. Massey, 60 S.W.3d 625 (Mo. App. W.D. 2001). Pursuant

to the statute, the threshold amounts vary depending on the specific controlled substance.

"Proof that a substance is contraband drug does not always require expert

testimony, but the proof must be sufficient to support a finding by the trier of fact that the

substance was the charged contraband beyond a reasonable doubt." State v. Eyman, 828

S.W.2d 883, 886 (Mo. App. W.D. 1992) (emphasis added, internal citation omitted).

Where the alleged contraband was marijuana plants, an officer having considerable

experience in investigating marijuana cases could testify that, in his opinion, the

substance was marijuana. State v. Roper, 591 S.W.2d 58, 61 (Mo. App. E.D. 1979).

However, in Roper, the Court noted that marijuana, unlike other substances, was not "an

extract or preparation difficult or impossible to characterize without chemical analysis,

but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably

familiar therewith should be able to identify." Id. (quoting State v. Maupin, 330 N.E.2d

708, 713 (Ohio 1975)). This analysis is unique and limited to marijuana in its natural

state.

Proof of the identity of a substance as a contraband drug may also, in very limited

circumstances, be established by having someone who used or sold the substance testify

as to its identity. In State v. Krutz, a conviction for cocaine possession was affirmed

where there had been no chemical analysis, but two "user-experts" who had ingested the

exact substance that was the subject of the offense and testified that the substance was

cocaine. State v. Krutz, 826 S.W.2d 7, 8 (Mo. App. W.D. 1991). In Krutz, this Court

6 stated that the nature of an illegal substance could be proven with circumstantial

evidence, and found that

[s]uch circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.

Id. (quotation omitted). See also State v. Neal, 624 S.W.2d 182, 182 (Mo. App. S.D.

1981) (buyer of substance testified that he bought ten pounds of the marijuana from the

defendant, knew what marijuana looked like, had smoked "10-12 joints" per day over the

last two years, and had smoked three "cigarettes" from the marijuana defendant sold

him).

However, an officer's testimony about the appearance of a substance other than

marijuana has been found insufficient to establish that the substance was a particular

contraband drug. In State v. Keel, the defendant was charged with possessing drug

paraphernalia for having scales that the State charged she had intended to use to weigh

drugs. State v. Keel, 565 S.W.3d 755, 756 (Mo. App. W.D. 2019). The only proof that

the defendant intended to use the scale to weigh drugs was the presence of "a crystal-like

residue" that the officer observed and "field test[ed]" to be methamphetamine. Id. at 758.

This testimony was found to be insufficient. Keel's challenge to the sufficiency of the

evidence was granted and the conviction was reversed even though in that matter a field

test was completed indicating the substance to be methamphetamine. Id. at 759.

7 In the present case, the only admissible evidence that the substances collected

were methamphetamine and crack cocaine, respectively, was the testimony of Trooper.

The State concedes that at trial they did not put the lab report into evidence or the results

of any drug testing and "did not rely on such a test to prove the nature of the pills and

powder." Trooper testified that one substance resembled rainbow- or multi-colored

powder and pills, while the other had the appearance of "chunky soap, but also like a

powder." Trooper did not testify that he had ever personally observed any

methamphetamine made up of multi-colored powder or pills himself, but only testified

that "recent training that we've been through and they've been pushing out a rainbow-

colored powder which has been linked to fentanyl during the majority of the testing that

other agencies have done." Trooper did not testify that he had ever even heard of multi-

colored powder or pills containing methamphetamine. In fact, he testified he changed his

opinion that the pills contained methamphetamine instead of fentanyl because Mother

told him that Foster had a "meth problem." The State's argument regarding the

admissibility of the laboratory report without having first called an expert is telling, "As a

matter of fact, we discussed very early on in the case when the lab test came back

negative for fentanyl. We were amending the information to show what the drug actually

was, which was methamphetamine." The State relied on the Trooper's belief that the

substance was fentanyl in making its original charging decision. After the laboratory

report was completed, the State amended the charge to methamphetamine because the

Trooper's belief as to the nature of the substance was inaccurate. Similarly, the original

charges included a charge that methadone was found in Foster's automobile, but the

8 laboratory analysis of the substance the Trooper believed to be methadone came back

negative for that substance.

As for the alleged crack cocaine, Trooper described the substance, but he did not

expressly testify that it appeared to resemble any crack cocaine he had previously

personally observed. Unlike other cases, there was no testimony from any other person

who had sold, bought, or used the substances, under what circumstances, or that the

substance had the character of the drugs they were alleged to be other than surface

appearance. The State's evidence that the substance was crack cocaine was based solely

on the Trooper’s visual examination. Trooper's experience with the substances in this

case was insufficient for a reasonable person to conclude based on his testimony that the

substances were, beyond a reasonable doubt, methamphetamine and crack cocaine. See

Eyman, 828 S.W.2d at 887. The State failed to introduce sufficient evidence that the

items were in fact the controlled substances Foster was charged with trafficking.4 See

Keel, 565 S.W.3d at 758–59.

"The State bears the burden to prove each and every element of a charged offense

beyond a reasonable doubt." State v. Perrey, 711 S.W.3d 483, 488 (Mo. App. E.D.

2025). The evidence in this case is insufficient to establish, beyond a reasonable doubt,

that the substances seized from Foster were methamphetamine and crack cocaine without

the evidence of a laboratory analysis.

4 It is worth reiterating that Foster was charged with trafficking and not mere possession of the substances, and therefore the State was required to prove that the substances found in Foster's possession were both the substances alleged and were present in the threshold quantities. 9 Foster's Points I and II are granted.

Conclusion

For the above-stated reasons, we reverse the judgment of the trial court as to

Counts I and II, and affirm the judgment as to the remaining counts.

_________________________________ Gary D. Witt, Presiding Judge

All concur