Patricia Breckenridge, Chief Justice.
Factual and Procedural Background
On February 6, 2013, Officer Jeffrey Ford responded to a 911 hang-up call from a residence in Marshfield. The call had been reported as an assault in progress. Upon his arrival at the residence, Officer Ford made contact with A.D., who appeared to have been assaulted. When Officer Ford asked her if anyone else was present in the residence, A.D. motioned with her head toward the rear of the house. Sergeant Richard Neal arrived at the residence shortly thereafter.
During the investigation of the residence, Officer Ford found Adriano Clark sitting on the side of a bed in the residence's small east bedroom, which also appeared to be the residence's main living area. Officer Ford and Sergeant Neal observed large men's tennis shoes next to the bed. A cell phone and a closed black velvet pouch were on a nightstand that was right next to Mr. Clark. The top of the nightstand was cluttered with numerous other items, including a desk lamp, two television remote controls, a coaster, a mouse pad, a used ashtray, a bottle of medication, and a glass filled with pens and other items. A larger closed brown pouch was hanging on the wall near photographs of A.D. and Mr. Clark. The contents of the two pouches were not visible to the officers, and they did not observe any drugs in plain sight.
As the officers entered the bedroom, Mr. Clark stood up and moved toward the foot of the bed. Officer Ford handcuffed and arrested Mr. Clark and then searched him.
After Mr. Clark was placed in a patrol car, A.D. gave the officers written consent to search the residence, which she said was her residence. She said Mr. Clark was her boyfriend. Detective Joseph Taylor, who obtained A.D.'s consent for the search, testified that A.D. was holding a cell phone when he spoke to her.
During their search of the east bedroom, the officers opened the two pouches and found plastic bags with crystalline substances that appeared to be methamphetamine, scales, and numerous items of drug paraphernalia. The state highway patrol crime laboratory later confirmed that the crystalline substances were methamphetamine. Police did not find Mr. Clark's wallet, any identification with Mr. Clark's
Mr. Clark was subsequently charged with the class C felony of possession of a controlled substance, punishable as a class A felony due to his status as a prior and persistent offender. Following a bench trial, the trial court found him guilty as a prior and persistent offender and sentenced him to ten years in prison. Mr. Clark appeals, contending there was insufficient evidence to prove beyond a reasonable doubt that he had knowledge and control over the drugs in the pouches. This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, sec. 10.
Standard of Review
"To determine whether the evidence presented was sufficient to support a conviction and to withstand a motion for judgment of acquittal, this Court does not weigh the evidence but rather accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences." State v. Ess, 453 S.W.3d 196, 206 (Mo.banc 2015) (internal quotations omitted). This Court, however, "may not supply missing evidence, or give the [state] the benefit of unreasonable, speculative or forced inferences." State v. Whalen, 49 S.W.3d 181, 184 (Mo.banc 2001) (internal quotations omitted). Evidence is sufficient to support a conviction when "there is sufficient evidence from which a reasonable [fact-finder] might have found the defendant guilty beyond a reasonable doubt." State v. Coleman, 463 S.W.3d 353, 354 (Mo.banc 2015); see also Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016).
Insufficient Evidence to Support the Conviction
Mr. Clark contends that the state did not prove beyond a reasonable doubt that he possessed the methamphetamine found in the pouches in the residence's east bedroom. Mr. Clark asserts that the state failed to prove beyond a reasonable doubt that he "knew about the drugs" or "that he exercised control over them" because the "drugs were found in closed pouches and there was no further evidence presented connecting Mr. Clark to the drugs."
Section 195.020 makes it "unlawful for any person to possess or have under his control a controlled substance." "[P]ossessed" or "possessing a controlled substance" is defined by the legislature as:
Section 195.010(34) (emphasis added). "When interpreting a statute, the primary goal is to give effect to legislative intent as reflected in the plain language of the statute." Stiers v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo.banc 2016). By the plain language of the statute, a person must have knowledge of the presence and nature of the substance to have actual or constructive possession. Section 195.010(34). In accordance with this statutory
"Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." State v. Purlee, 839 S.W.2d 584, 588 (Mo.banc 1992). The state, therefore, had the burden to prove that Mr. Clark constructively possessed the methamphetamine found in the closed pouches.
To have constructive possession of a controlled substance, a person must have both "knowledge of the presence and nature of a substance" and "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[.]" Section 195.010(34). Proof of constructive possession requires:
Here, Mr. Clark did not have exclusive control over the residence or the east bedroom. A.D. was present at the residence when the police arrived. She told Detective Taylor that it was her residence and that Mr. Clark was her boyfriend.
The state presented the following evidence in its attempt to link Mr. Clark to the drugs found in the two closed pouches in the east bedroom: (1) Mr. Clark was sitting on the side of the bed in the east bedroom next to the nightstand in close proximity to the two pouches containing the methamphetamine; (2) a large pair of men's tennis shoes was by the side of the bed where he was seated; (3) a cell phone was on the nightstand near Mr. Clark; and (4) Mr. Clark had $560 on his person, consisting of five $100 bills and three $20 bills.
The state asserts that Mr. Clark's proximity to the pouches where the drugs were found, along with the above additional incriminating evidence, was sufficient to prove that he constructively possessed the methamphetamine. Although Mr. Clark was found sitting on the bed near the two closed pouches that contained the drugs, neither "[t]he mere fact that a defendant is present on the premises" nor a defendant's "proximity to the contraband alone" proves constructive possession. Id.
Withrow, a case with facts similar to those presented here, provides guidance on this point. In that case, while the police had a suspected drug house under surveillance for a two-day period, the police observed approximately 30 persons coming and going from the house. They observed the defendant's car parked in front of a house at least twice. Id. at 77. The defendant entered and exited the house five or six times during this period of time. Id. When officers searched the house, the officers found the defendant leaving a bedroom that "emitted a solvent-like odor, commonly associated with the production of methamphetamine." Id. This bedroom contained weapons and numerous items used to manufacture methamphetamine, including ingredients and a
Likewise, in this case, because Mr. Clark had shared access to the east bedroom, his presence in the east bedroom and his proximity to the closed pouches do not support a reasonable inference that he had knowledge and control over the drugs found in the pouches. See id. at 80. The state asserts, however, that the totality of the evidence presented, including the presence of men's shoes and a cell phone near the drugs and Mr. Clark's possession of $560, were sufficient to prove that he constructively possessed the methamphetamine.
The state is correct that the "presence of a defendant's personal belongings in close proximity to the drugs may support an inference that he possessed the drugs." Glover, 225 S.W.3d at 428. But, in this case, such evidence was not sufficient. Detective Taylor testified that he believed the cell phone on the night stand near the pouches was Mr. Clark's because he thought A.D. was holding a cell phone when he spoke to her.
On this evidence, the officer was merely speculating that the cell phone belonged to Mr. Clark. Speculative inferences, however, may not be used to support a verdict. Whalen, 49 S.W.3d at 184. For example, in a similar case, an open manicure case that contained a small baggie of methamphetamine could not be inferred to belong to a woman who shared her bedroom with her ex-husband when "the [s]tate neither presented any evidence showing to whom the manicure case belonged nor identified any characteristics of the manicure case indicating whether it belonged to a man or a woman." State v. Tomes, 329 S.W.3d 400, 403 (Mo.App. 2010). The defendant's sharing of the bedroom and dresser where the drugs were found was not alone sufficient to prove that she constructively possessed the methamphetamine. Id. at 404. As in Tomes, the state did not present evidence that supports a reasonable inference that the cell phone found near the methamphetamine belonged to Mr. Clark. See id. at 403-04. Accordingly, this Court cannot give the state the benefit of the speculative inference that the cell phone belonged to Mr. Clark. See Whalen, 49 S.W.3d at 184.
Likewise, even if it were reasonable to infer that the men's shoes, which were found near Mr. Clark and in close proximity to the two closed pouches containing the methamphetamine, belonged to Mr. Clark, a single pair of his shoes found near him as he was sitting on the bed was insufficient to infer the drugs were his. As discussed above, Mr. Clark's mere presence in proximity to illegal drugs does not in itself establish his knowledge or control over the closed pouches containing the methamphetamine. Withrow, 8 S.W.3d at 80. The fact that his shoes were near him does not establish his knowledge or control over the drugs.
The cases in which the proximity or commingling of a defendant's personal belongings supported an inference of the defendant's awareness and control of the drugs have very different facts. In State v. Cline, 808 S.W.2d 822, 823-24 (Mo.banc 1991), methamphetamine was found in a dresser in a bedroom shared by the defendant
Additionally, an inference of a defendant's knowledge and control of illegal drugs or drug paraphernalia was also supported when: (1) a defendant's duffel bag was next to two bags of raw marijuana, Purlee, 839 S.W.2d at 588; (2) a defendant's birth certificate found with methamphetamine locked in a safe under a desk in attic, State v. Richardson, 296 S.W.3d 21, 25 (Mo.App.2009); and (3) a defendant's wallet, driver's license, and handgun and only male hygiene items and clothing were found in the master bedroom and adjoining bathroom in a residence shared with two women and drugs were found in the bathroom, State v. Bacon, 156 S.W.3d 372, 378-79 (Mo.App.2005). Unlike in these cases, a single pair of Mr. Clark's shoes next to where he was sitting in proximity to the two closed pouches containing drugs was not sufficient to support the inference that Mr. Clark was either aware of or in control of the illegal drugs found in the two closed pouches.
The state further asserts that Mr. Clark's contemporaneous possession of $560, along with the other evidence, created an inference that he had knowledge and control over the methamphetamine. The state cites State v. Jackson, 419 S.W.3d 850, 856-57 (Mo.App.2013), as support for its contention that the money found on Mr. Clark is incriminating evidence that would support a reasonable inference that he had knowledge and control of the drugs. In Jackson, the court of appeals held that "[t]he presence of large sums of money held in small denominations may be consistent with drug dealing," which may in turn be used to infer the defendant's constructive possession of illegal drugs found in a residence. Id. at 856.
Here, Mr. Clark was in possession of a large sum of money, but that money was not held in small denominations. Instead, he possessed five $100 bills and three $20 bills, denominations that are not indicative of drug dealing. Because Mr. Clark's possession of $560 in five $100 bills and three $20 bills does not indicate that he was dealing drugs, it likewise does not support an inference that he had knowledge or control over the methamphetamine found in the pouches. See Whalen, 49 S.W.3d at 184.
The totality of the facts presented by the state, and the reasonable inferences drawn from these facts, fail to show that Mr. Clark had constructive possession over the methamphetamine concealed in the closed pouches. Accordingly, no rational trier of fact could have found that the state proved beyond a reasonable doubt the essential elements of possession of a controlled substance. See Withrow, 8 S.W.3d at 81.
Conclusion
The trial court erred in finding that there was sufficient evidence to prove beyond
Stith, Draper and Teitelman, JJ., concur; Wilson, J., concurs in result in separate opinion filed; Fischer and Russell, JJ., concur in opinion of Wilson, J.
Paul C. Wilson, Judge, Concurring.
I concur in the result reached by the majority opinion, but not its reasoning. The evidence in this case was sufficient to prove that Mr. Clark had actual possession of the two pouches and their contents, but it was not sufficient to prove that he had "knowledge of the presence and nature" of those contents, i.e., that he knew the pouches contained the controlled substance methamphetamine. Accordingly, I would reverse Clark's conviction on that basis.
Section 195.010(34) provides that a person is in possession of a controlled substance if that person, "with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance." As a result, to "prove possession of a controlled substance, the state must show [1] conscious and intentional possession of the substance, either actual or constructive, and [2] awareness of the presence and nature of the substance." State v. Zetina-Torres, 482 S.W.3d 801, 807 (Mo.banc 2016) (quoting State v. Stover, 388 S.W.3d 138, 146-47 (Mo.banc 2012)).
The verdict director approved by this Court for the crime of possession of a controlled substance reflects the same two statutory elements of possession and knowledge:
If you find and believe from the evidence beyond a reasonable doubt that:
MAI-CR 3d 325.02 (2013) (emphasis added).
As a result, it is clear that the statutory language, this Court's precedents, and the jury instruction quoted above uniformly require proof of two separate and distinct elements for the crime of possession of a controlled substance: (1) possession of a substance and (2) "knowledge of the presence and nature" of that substance. Despite this uniformity, the majority opinion blurs this distinction by calling the latter a "condition precedent" to the former.
The question in this case is not whether the evidence was sufficient to prove that Clark physically possessed the pouches and their contents. It was. Instead, the question is whether the same evidence establishing Clark's possession of the pouches and their contents (i.e., evidence that the pouches were within his easy reach and control) also was sufficient to prove Clark actually knew of the presence and nature of the contents of those pouches, i.e., that he actually knew they contained methamphetamine. It was not, and Clark's conviction should be reversed on that basis.
The majority opinion seemingly agrees with this conclusion, Slip Op. at 709 ("because the drugs were concealed in closed pouches, mere proximity to the drugs does not create a reasonable inference that Mr. Clark had knowledge of the presence and nature of the methamphetamine in the pouches"), but holds that this constitutes a failure to prove the element of possession. In other words, the majority opinion holds that the evidence was not sufficient to prove that Clark possessed the two pouches and their contents — which were found next to the bed on which he was sitting when the officers arrived — even though section 195.010(34) provides that the element of possession may be proved by evidence that the substance was on the defendant's "person" or "within easy reach and convenient control" of the defendant. Because the evidence was sufficient for a reasonable factfinder to believe that these pouches and their contents were within Clark's "easy reach and convenient control,"
Two illustrations may be helpful. Imagine that the pouches had been clear plastic bags or, more to the point, suppose the outside of the pouches had been emblazoned with the words: "Methamphetamine Inside!" With the addition of such evidence, the majority opinion surely would hold that the conviction was supported by sufficient evidence. But this hypothetical new evidence has no logical relevance to the element of whether Clark possessed
On the other hand, imagine that the evidence of possession was strengthened by evidence that the pouches were lying on the bed six inches from where Clark was sitting when the officers first saw him (rather than lying on, or hanging above, a table "a few feet" away). If the evidence actually presented in this case was insufficient to prove the element of possession, as the majority opinion holds, then the addition of this hypothetical evidence surely would cure that deficiency. If the majority opinion agreed, then its holding would stand only for the modest proposition that the statutory definition of actual possession being "within easy reach and convenient control" of the defendant is met by distances of less than one foot but not by distances of "a few feet." However, nothing in the majority opinion suggests that this hypothetical evidence would change its result because the analysis in the majority opinion is not based upon any physical limitations on the statutory phrase "within easy reach and control." As above, therefore, this hypothetical illustrates that the result reached in the majority opinion is driven by the lack of evidence on the element of knowledge, not the element of possession.
But possession need not be so intimate. Under section 195.010(34), the element of possession may be proved — as it was in this case — by evidence that the substance was "within easy reach and convenient control" of the defendant, even though it was not on the defendant's "person." In such cases, however, additional evidence may be needed before the finder of fact will be allowed to infer the knowledge element, i.e., that the defendant knew the nature and presence of the substance possessed. This will be so where — as here — the circumstances establishing the defendant's actual possession of a substance simply do not reasonably support the inference that the defendant knew of the presence and nature of the controlled substance he possessed.
Finally, even when the defendant does not have actual possession of the substance, evidence can be sufficient to prove "constructive possession" of a substance if it shows that the defendant had "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[.]" § 195.010(34). In those cases, however, evidence sufficient to establish the element of constructive possession likely will not be sufficient to support the inference required by the second element, i.e., that the defendant knew of the presence and nature of the substance. This is so because, when the element of possession is proved by facts showing constructive possession, the defendant's relationship to the substance possessed is far more attenuated than when there is proof of actual possession (i.e., when a substance is found on the defendant's person or within his easy reach and convenient control). Without more, such evidence may well be insufficient to support a reasonable inference that the defendant knew of the presence and nature of the controlled substance he constructively possessed.
Here, the evidence was sufficient to prove Clark possessed the pouches and their contents because they were within his easy reach and convenient control when the officers first observed him in the bedroom. This same evidence was not sufficient to support the inference required by the knowledge element, however, because it provides no reasonable basis from which to infer that Clark actually knew both that there was something in those pouches and that the "something" was methamphetamine. Accordingly, I would reverse Clark's conviction on that basis.
FootNotes
The concurring opinion, in fact, favorably cites the holding in Zetina-Torres for the proposition that "to prove possession of a controlled substance, the state must show [1] conscious and intentional possession of the substance, either actual or constructive, and [2] awareness of the presence and nature of the substance." (Emphasis added). Accordingly, as stated by the concurring opinion, the element "possession" requires "conscious and intentional possession of the substance," regardless of whether the possession is actual possession or constructive possession. Yet, in direct contradiction of the law it purports to rely on, the concurring opinion states that "a person can possess a substance without being `conscious' of its `existence' or `nature.'" Based on this misstatement of law, the concurring opinion erroneously draws the conclusion that Mr. Clark "possessed" the contents of the pouches, i.e. the methamphetamine, even though, as the concurring opinion agrees, the evidence was not sufficient to establish he was conscious that the pouches contained methamphetamine. Because the analysis and conclusions drawn by the concurring opinion are diametrically opposed to the holding in Zetina-Torres, the concurring opinion would require Zetina-Torres to be overruled, despite being handed down by this Court on March 1, 2016.
Moreover, the interpretation of section 195.202 urged by the concurring opinion would lead to the absurd and unjust result that a person with no connection or intention to possess a controlled substance would be legally guilty of actual possession. Under the concurring opinion's analysis of section 195.010, if Jane Doe sits next to John Doe and puts her purse between them with a clear plastic baggie of methamphetamine visible on the top of the contents of her purse, which John sees and recognizes as methamphetamine, John would be guilty of the crime of possession of a controlled substance because he would have: (1) actual possession of the controlled substance because it was within his easy reach and convenient control, and (2) knowledge of the presence and nature of the methamphetamine. This Court's prior interpretation of the statute to hold that "actual possession" requires conscious knowledge and intentional possession of the controlled substance avoids this absurd result. See McCollum v. Dir. of Revenue, 906 S.W.2d 368, 369 (Mo.banc 1995) (a statute "should be interpreted to avoid absurd results").
Additionally, the legislature has amended section 195.010 several times since this interpretation of "actual possession" by the Court, but the legislature has not amended either the language or structure of this definition. Specifically, the definition of possessing a controlled substance was first included in section 195.010 in 1989. Section 195.010 has since been reenacted in 1998, 2001, and 2011, with no change in the language of the definition of possessing a controlled substance. This definition will also not be modified when the new criminal code becomes effective on January 1, 2017. 2014 Mo. Legis. Serv. S.B. 491. Accordingly, "where a court of last resort construes a statute, and that statute is afterwards re-enacted, or continued in force, without any change in its terms, it is presumed that the legislature adopted the construction given to it by the court." State v. Grubb, 120 S.W.3d 737, 740 (Mo.banc 2003).
By the same token, the discussion of "constructive possession" in the majority opinion also adds nothing to the analysis of whether the evidence was sufficient to prove the element of possession. When the substance is not found on the defendant's person or within his easy reach and convenient control, the evidence still can be sufficient to prove the element of possession if it shows that the defendant had "the power and the intention at a given time to exercise dominion or control over the substance" located somewhere else. § 195.010(34). But, as discussed below, evidence showing a substance was constructively possessed may not be sufficient — without more — to support the inference required by the knowledge element.
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