State v. Vitale

795 S.W.2d 484, 1990 Mo. App. LEXIS 1061, 1990 WL 94142
CourtMissouri Court of Appeals
DecidedJuly 10, 1990
DocketNo. 57444
StatusPublished
Cited by4 cases

This text of 795 S.W.2d 484 (State v. Vitale) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vitale, 795 S.W.2d 484, 1990 Mo. App. LEXIS 1061, 1990 WL 94142 (Mo. Ct. App. 1990).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, James Jon Vitale, appeals from his January 9, 1987, bench tried conviction for possession of a schedule II controlled substance pursuant to RSMO section 195.020 (1986). On January 9, 1987, [485]*485the court suspended imposition of sentence and placed appellant on three years probation. Appellant violated his probation and, on September 27, 1989, the court sentenced him to a one year term of imprisonment. Appellant contends in this appeal that there was insufficient evidence to convict him and that the trial court erred in failing to suppress the controlled substance as evidence because it was the fruit of an unlawful search. We affirm.

We begin by noting that where a defendant waives his right to have his fate determined by a jury and selects, instead, to allow the court to decide, the court’s findings shall have the force and effect of a jury trial. State v. Robinson, 664 S.W.2d 543, 545 (Mo.App., E.D.1983). We, therefore, accept as true the evidence propounded by the State, together with all reasonable inferences drawn from this evidence and disregard all contrary evidence and inferences. Id. With this in mind, the relevant facts of the case are as follows.

On the afternoon of June 6, 1985, the appellant went to Body Builders, Inc., a local gym, for his normal workout. Appellant placed his blue, Body Builders jacket on a coat rack inside the gym. When he left the gym at around 4:00 p.m., the appellant grabbed his jacket from the rack. Appellant then drove to his girlfriend’s house and she drove him to work.

Appellant arrived at United Parcel Service, his place of employment, at approximately 5:00 p.m. He took the jacket, placed it on a coat rack, went and bought a soda and then put his jacket back on and walked to his work station. As he arrived, three Secret Service Agents appeared with a federal warrant for his arrest on counterfeiting charges. Appellant was advised by the agents to place his hands up in the air. He was also told that the agents would be searching him. Appellant then immediately began to try to take his jacket off and proclaimed that the jacket did not belong to him.1

Agent John Britt again told the appellant to put his hands up but the appellant continued to attempt to take off the jacket. Agent Britt then physically secured appellant’s hands against a wall and Agent Britt removed appellant’s jacket, concerned that it may contain weapons or contraband. Appellant continued to deny ownership.

Agent Britt felt the jacket and noticed that something was inside both pockets. Agent Britt removed appellant’s wallet from one pocket and from the other pocket Agent Britt found a white paper packet which contained white powder (later determined to be cocaine), a drinking straw, and lip balm. Agent Britt testified that a straw was sometimes used to snort cocaine and that lip balm was sometimes placed around the nose to reduce irritation when snorting. Appellant challenges the sufficiency of this evidence.

In order to sustain a conviction for possession of a controlled substance under RSMo § 195.020, the State must prove the defendant knowingly and intentionally possessed the substance and was aware of its presence and nature. State v. Webster, 754 S.W.2d 12 (Mo.App., E.D.1988). Knowledge can be proven by circumstantial evidence. State v. Sand, 731 S.W.2d 488, 491 (Mo.App., S.D.1987).

Appellant claims that there was no evidence establishing his knowing possession of cocaine. Appellant’s defense at trial was that he picked up someone else’s jacket as he left Body Builders and did not realize his mistake until he saw Agent Britt remove the cocaine, straw and lip balm.

In Sand, police officers noticed the defendant’s automobile in the middle of the road and discovered that there was an outstanding arrest warrant for the defendant. Sand, 731 S.W.2d at 489. The police had defendant and his female companion get out of the vehicle and when the police attempted to have the defendant place his hands on the trunk of his car, the defendant fled and discarded the jacket he was wearing. Id. Defendant’s female compan[486]*486ion retrieved the jacket which was later found to have contained marijuana and metamphetamine. Id. Defendant’s companion testified that she had placed the drugs in defendant’s jacket pocket and that the defendant did not know the drugs were there. Id. at 489-90.

Despite this testimony, the Southern District found sufficient evidence to support defendant’s conviction for possession of a controlled substance. Id. at 492. Specifically, the court noted that defendant’s exclusive possession of the jacket (his wearing it) and his fleeing when it was evident he would be searched constituted circumstantial evidence supporting a finding of knowing possession of the drugs. Id. The finder of fact, a jury in Sand, could simply have chosen not to believe the testimony of defendant’s companion. Id. at 491-92.

In the case at bar, appellant had exclusive possession of the jacket upon the agent’s arrival and appellant began denying ownership of the jacket as soon as it was apparent that he would be searched. We also note that he testified that he trav-elled to his girlfriend’s house and was taken to work while wearing the jacket. Further, he stated that upon his arrival at work, he momentarily took off the jacket without recognizing that it was not his. His sudden realization that he had the wrong jacket upon being arrested is suspect given these facts. Moreover, the credibility of testimony is a matter for the trial court and not a proper subject for our review. Webster, 754 S.W.2d at 13. The trial court was entitled to not believe appellant’s testimony.

Likewise, appellant claims that there was no evidence to support a finding that he knew the nature of what he possessed. However, we have held that evidence of a defendant’s efforts to conceal, dispose of or discard controlled substances when confronted by police is sufficient to raise a jury question (question of fact) as to defendant’s knowledge of the nature of the substance. Webster, 754 S.W.2d at 13. State v. Jones, 760 S.W.2d 536, 538 (Mo.App., E.D.1988).

In State v. Webb, 646 S.W.2d 415 (Mo.App., W.D.1983), the defendant was sitting with friends at a restaurant when police arrived with a search warrant for the premises. Id. at 416. During the course of the police search, they realized there was an arrest warrant for Ms. Webb. Id. When Ms. Webb realized that she was about to be arrested, she handed her purse to her friend. Id. The defendant claimed at trial that the purse, which contained P.C.P., belonged to her friend even though it contained defendant’s identification cards. Id. at 417. The Western District found this evidence sufficient to convict Ms. Webb. Id.

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Bluebook (online)
795 S.W.2d 484, 1990 Mo. App. LEXIS 1061, 1990 WL 94142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vitale-moctapp-1990.