State v. Metcalf

182 S.W.3d 272, 2006 Mo. App. LEXIS 111, 2006 WL 162790

• Court: Missouri Court of Appeals
• Decided: January 24, 2006
• Docket: ED 85803
• Status: Published

Opinions

OPINION

MARY K. HOFF, Presiding Judge.

Edwin L. Metcalf (Defendant) appeals the trial court’s judgment and sentence imposed following a jury verdict convicting him of Class C felony possession of a controlled substance, in violation of Section 195.202 RSMo 2000.¹ The trial court sentenced Defendant, as a prior and persistent offender in accordance with Section 558.016, to a term of ten years’ imprisonment. We reverse.

Facts

The State presented the testimony of Warrenton Police Officer Eric Schleuter (Schleuter) and Missouri Highway Patrol Crime Laboratory (Lab) Criminalist Supervisor Sid Popejoy (Popejoy). Schleuter testified as follows: On March 3, 2003, Schleuter and two other police officers, pursuant to a search warrant, requested entry to a Budget Host Inn hotel room occupied by Defendant and his wife (Wife). When Wife opened the door to admit the officers, Schleuter observed Defendant sitting on a bed in the room.

After entering the room, Schleuter read the warrant to Defendant and Wife. Wife and Defendant were cooperative with the officers. The officers patted down Defendant and Wife and asked them to empty their pockets; both complied. The officers seized from Wife’s person a piece of aluminum foil with burned residue. The officers seized a notebook from one of Defendant’s pockets. The notebook was turned to a page containing a partial list of items used in the production of methamphetamine: one bowl, two small jars, one big jar, hose, muriatic, filters, Dremel. One item on the list, “hose” was scratched off, and a hose was found on a table in the hotel room.

During their subsequent search of the room, the officers found a second piece of aluminum foil containing burned residue and a straw with residue in it. When Schleuter performed field tests on these retrieved items, the tests indicated a positive result for methamphetamine. The second piece of aluminum foil was found next to or in a trash can next to one of the beds in the room, and the straw was found near a black bag on a dresser countertop. The black bag contained women’s clothing, a box of aluminum foil, a bag of individual packets of salt, and six straws. The officers also retrieved two additional pieces of aluminum foil and a mirror with residue from the room.

After the officers received permission to search a vehicle located in front of the hotel room, they seized a digital scale, two walkie-talkie radios, and a night-vision device from the vehicle. Schleuter testified that these items are often found on individuals who steal anhydrous ammonia, which is used in manufacturing methamphetamine.

Following their search and seizure of items in the room and vehicle, the officers arrested Defendant and Wife for possession of a controlled substance. Wife subsequently pleaded guilty to her possession charge.

Popejoy testified that his Lab received from the Warrenton police agency a packet of four items: the mirror, the straw, and the two pieces of foil containing burned residue. However, Popejoy tested only the mirror and straw. He indicated that his testing confirmed that the straw contained methamphetamine residue which “was too small to weigh with the balance that we routinely use.”

Defendant moved for a judgment of acquittal at the close of the State’s evidence due to failure to prove the element of possession, which was denied. Defendant presented no evidence. The jury returned a verdict finding Defendant guilty of possession of a controlled substance. Defendant again challenged the sufficiency of the evidence in his motion for new trial, which was denied. This appeal follows.

Analysis

Defendant raises three points on appeal. Because we find Defendant’s first claim of error dispositive, we need not address his remaining points, which claim error in the trial court’s admission of certain testimony and evidence. In his first point, Defendant contends the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to establish beyond a reasonable doubt that Defendant’s mere presence in the hotel room showed that he had the power and intention to exercise dominion or control over the controlled substances found in the room, and, thus, the jury could not have reached a “subjective state of near certitude” that Defendant was in constructive possession of any controlled substance.

When a defendant challenges the sufficiency of the evidence to support his conviction, we review to determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty of the charged offense beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). Taking the evidence in the light most favorable to the State and granting the State all reasonable inferences, we must consider whether a reasonable juror could find each of the crime’s elements beyond a reasonable doubt. Id.

To sustain a conviction for possession of a controlled substance under Section 195.202, the State must prove that Defendant knowingly and intentionally possessed the illegal substance. State v. Morris, 41 S.W.3d 494, 497 (Mo.App. E.D. 2001). When, as here, actual possession is not present, the State must prove constructive possession and must show other facts that buttress the inference of possession. Id. A person constructively possesses a substance when he “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[.]” Section 195.010(32).

At a minimum, constructive possession necessitates proof that a defendant had access to and control over the premises where the drugs were discovered. Moms, 41 S.W.Sd at 497. In cases where a premises is jointly possessed, further evidence is required to connect a defendant to the controlled substance. Id. Such evidence might include routine access to the area where the substances are kept, the presence of large quantities of the substance at the arrest scene, admissions by the accused, being in close proximity to the substances or drug paraphernalia in plain view of the law enforcement officers, the mixing of defendant’s personal belongings with the drugs, or flight by a defendant upon realizing the presence of law enforcement officials. Id. In making our determination as to whether sufficient additional incriminating circumstances have been proven, we consider the totality of the circumstances. Id.

The State’s evidence failed not only to prove control, a necessary element to prove constructive possession, but also to show sufficient facts to establish an inference of possession. Id. Here, although Defendant had access to the area where the residue was found, he possessed the premises jointly with Wife, who pleaded guilty to possession of methamphetamine. Only Wife, not Defendant, had actual, physical possession of any item containing the controlled substance. Defendant’s personal belongings were not commingled with the items containing residue. Although cooperative with the law enforcement officers, Defendant made no incriminating admissions.

Furthermore, only methamphetamine residue was retrieved during the search. Considering the minute quantity of methamphetamine residue actually retrieved and the fact this residue was found in a straw, we cannot conclude that the substance was in plain view of Schleuter and that Defendant’s relatively close proximity to these items established an inference of possession.

As to the notebook found in Defendant’s pocket and containing a partial list of items used in methamphetamine production, this evidence, while possibly relevant to a charge of manufacturing, did not show Defendant’s knowledge of the presence of or control over a controlled substance. Thus, the notebook was not an additional incriminating factor that would buttress the inference of possession.

Considering the totality of the circumstances, we conclude the State failed to produce sufficient evidence from which a reasonable juror could have found Defendant guilty beyond a reasonable doubt. Whalen, 49 S.W.3d at 184. We reverse and order that Defendant be discharged.

PATRICIA L. COHEN, Judge, concurs. CLIFFORD H. AHRENS, Judge, Dissents in separate opinion.

1 . Subsequent statutory citations are to RSMo 2000, unless otherwise indicated.