State v. Witt

685 S.W.2d 266, 1985 Mo. App. LEXIS 3908
Missouri Court of Appeals·Decided January 29, 1985·No. No. WD 35626·Published·Cited by 4 cases

Opinion

PER CURIAM:

Defendant Stephen Witt appeals from a conviction upon jury trial of possession of more than 35 grams of marijuana, Section 195.020, RSMo Supp.1982, upon which he was sentenced to five years’ imprisonment.

The judgment is affirmed.

Beginning in July 1982, officers of the Missouri State Highway Patrol, the Randolph County Sheriff’s office, and the Federal Drug Enforcement Administration cooperated in keeping under surveillance a thirty-eight acre tract of land in Randolph [268] County upon which marijuana appeared to be growing in a cultivated manner. Earlier aerial surveillance by the Federal Drug Enforcement Administration had revealed the presence of marijuana. The marijuana was located in the northern and southern fields of the tract, but not in the center portion. The area earlier that season had been planted in corn, which by late summer had grown to approximately eight to ten feet in height. The corn had been cut around each marijuana plant to give the plant room for light and growth. Marijuana plants were not strung out throughout the whole field, but were concentrated in areas. The male plants had been removed, thus increasing the THC (tetrahydrocannabinol, resinous liquid and chief intoxicant in marijuana) value and bushiness of the remaining female plants. In addition, brush had been removed from the area surrounding the marijuana plants. A total of 182 plants was found in these two fields, weighing approximately 500 pounds. These fields were kept under almost constant surveillance, twenty hours per day, from the time of the discovery of the growing marijuana.

I

Defendant first contends there was insufficient evidence to support a finding that he knowingly possessed more than 85 grams of marijuana. On review, we determine whether the evidence and the reasonable inferences arising therefrom, viewed in a light most favorable to the State, support the guilty verdict. State v. Franco, 544 S.W.2d 583, 534 (Mo. banc 1976). Where the evidence is circumstantial, as it is in this case, the facts and circumstances relied upon to establish defendant’s guilt must be consistent with each other and inconsistent with any reasonable hypothesis of his innocence, but, for submission to the jury, need not be absolutely conclusive of guilt or demonstrate the impossibility of innocence. Id. In this light, we review the evidence on this record.

During surveillance on September 7th, officers noted the presence of four people, three men and one woman, in the field, all wearing camouflage clothing, including netting over their faces. One of the men toted a sawed-off shotgun. The woman was later identified as the wife of the defendant. Defendant admitted at trial that he, his wife, and Karryl Hanson had been in or near the cornfield on September 7th, but that he, defendant, and Hanson had been inspecting the land for timber.

Also on September 7th, officers noted the presence of a machete, or corn knife, stuck in the ground in the south field at the end of a row of trees. Each day they checked the location of the machete. It remained in the same position, having been checked as late as the morning of October 4, the date of defendant’s arrest.

On October 4th, an officer of the highway patrol and two deputy sheriffs of Randolph County entered the north field for their surveillance shift and observed that marijuana had been freshly cut. They walked to the south field and heard “what sounded like somebody walking through dry corn and we could hear chopping noises.” They then walked to the center field to radio the sheriff’s department for help but could not transmit from the low-lying area. Two officers, Belshe and Samp, returned to the south field while the third sought higher ground from which to radio the sheriff. After being summoned, 16 to 18 officers took part in surrounding the field. In the south field, Belshe and Samp found a trash bag hidden among large roots of a tree along the creek bank. Inside were two canteens, a hard plastic container of food, a paper sack, and an open box of trash bags from which several bags had been removed. The two officers then crossed the creek and hid in the horse weeds, watching to see whether someone would claim the trash bag.

A short time later, two men came walking along the dry gravel creek bed and as they came near the point where, up along the creek bank, the officers were hiding, Deputy Samp stood up, identified himself, and arrested them.

Once notified by radio of the arrest, the remaining officers who had surrounded the [269] field then began searching for other persons in the field. They found no one else, nor did officers in an airplane which had circled overhead for 15 minutes preceding the arrest detect from their vantage point the presence of anyone else in the field.

In the south field, approximately 150 to 200 yards from the arrest site, officers found two plastic trash bags full of freshly cut marijuana. Two or three feet from the bagged marijuana, they found the machete, or corn knife, stuck in a willow tree. The record is unclear (the trial exhibits not having been filed with this court) whether the marijuana had been cut from plants growing in the north or south field.

At the time of his arrest, defendant Stephen Witt was clad in a camouflage shirt, a white T-shirt, jeans, and a camouflage hat. The palms of his hands were dark green, almost black, and appeared to one of the officers to be sticky. Sgt. Belshe then searched the two men. In defendant’s pocket he found a pair of pink-handled clippers, or wire cutters, that had a green cast to them. On his clothing and in his pockets he found cockleburs and leaves which later tests proved to be marijuana. When Sgt. Belshe pointed to the trash bag nearby containing the open box of trash bags and other items, defendant said the whole trash bag was theirs.

Tests of swabbing of defendant’s palms taken at the Randolph County jail after the arrest showed the presence of THC. The pink-handled clippers also showed the presence of THC.

To sustain a conviction under Section 195.020 for possession of marijuana, the state must prove defendant knowingly and intentionally possessed the marijuana, and that he was aware of the presence and nature of it. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

“Possession” as that term is used ... in its legal sense, means knowingly having the actual control and dominion of the [drug] to the exclusion of others.... [I]t is sufficient if the thing possessed is either carried on [defendant’s] person or is in his presence and custody if the possession is immediate, accessible and exclusive to him, (provided, however, that two or more persons may have joint possession of a [drug] if jointly and knowingly they have the dominion, control and exclusive possession described.)

State v. Sledge, 471 S.W.2d 256, 260 (Mo.1971).

Defendant contends he did not have actual control and dominion over any marijuana other than the fragments found upon him, and that, under a theory of constructive possession, he did not have exclusive access to the area.

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State v. Witt, 685 S.W.2d 266, 1985 Mo. App. LEXIS 3908 (Mo. Ct. App. 1985).

685 S.W.2d 266 (State v. Witt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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