State v. Kerns

KENNETH W. SHRUM, Judge,

dissenting.

Respectfully, I dissent.

In reviewing a challenge to the sufficiency of evidence in a criminal case, appellate review is limited to deciding if there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55[3] (Mo.banc 1989). We are to accept all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. Id. at 55[2], (Emphasis supplied.) “An inference is a logical and reasonable conclusion of a fact not presented by direct evidence but which by the process of logic and reason, a trier of fact may conclude exists from the established facts.” State v. Hyde, 682 S.W.2d 103, 106[8] (Mo.App.1984). Although an inference only satisfies a party’s burden of producing evidence with regard to a particular fact, a trier of fact may accept existence of the assumed fact. Id. at 106[9].

Reviewing this record in the light most favorable to the jury’s verdict, it was an established fact that Defendant had lived with Dorothy Williams in her home at 1315 East Florida, Springfield, Missouri, for approximately eight months prior to November 29, 1999. The house was described as “very small” in size. Both Defendant and Williams described themselves as living together as “boyfriend/girlfriend.” From the situation thus described, i.e., a live-in “boyfriend/girlfriend” relationship in a “very small house” for eight months, the jury could have logically and reasonably concluded that Defendant had routine access to Dorothy Williams’ bedroom where the larger cache of marijuana was discovered. Routine access to the area where drugs are discovered is evidence that tends to connect a defendant with controlled substances found in jointly controlled premises. State v. Buford, 907 S.W.2d 316, 318 (Mo.App.1995).

Other evidence exists here that has been held to link a defendant to controlled substances seized in a home. First, there was the presence of large amounts of contraband at this house, i.e., 12.26 grams of marijuana on the coffee table in the living room, 251.01 grams of marijuana in a filing cabinet in the bedroom closet, roaches (marijuana cigarette remnants) found next to the larger cache of marijuana, and three marijuana smoking pipes found in the filing cabinet next to the marijuana. See Buford, 907 S.W.2d at 318.

Second, Defendant’s conduct and statements connected Defendant with the controlled substances. Id. at 318[8]. For instance, as Defendant was being interviewed in the bedroom where the larger marijuana amount was found, he stated that he knew “it was present” and that “he and Ms. Williams were marijuana smokers.” He further acknowledged he had been smoking a marijuana joint just before officers entered the house with their search warrant.

Third, the metal can with 12.26 grams of marijuana was on a coffee table, within two feet of where Defendant was sitting, when the officers entered the house. Such close proximity to a controlled substance is another incriminating circumstance tending to show possession of a controlled substance. State v. May, 71 S.W.3d 177, 184 (Mo.App.2002); State v. Steward, 844 S.W.2d 31, 33-34 (Mo.App.1992); State v. Hall, 687 S.W.2d 924, 927 (Mo.App.1985). That is a particularly weighty circumstance when, as here, Defendant admitted he had just finished smoking a joint but had no marijuana on his person.

Fourth, in my view Defendant’s consciousness of guilt can be inferred from what Defendant said during the bedroom interview, specifically his statement that “he and Ms. Williams were marijuana smokers but he didn’t have anything to do with the sale or purchase of marijuana.” (Emphasis supplied.) See State v. Dreiling, 830 S.W.2d 521, 524-25 (Mo.App.1992). From this statement, a jury could logically and reasonably conclude that Defendant was conceding his connection to marijuana, but wanted to assure the officers he was only a user and possessor, not a dealer.

In my opinion, there was sufficient additional incriminating evidence to permit this jury to logically and reasonably conclude that Defendant had possession and control over the marijuana. On this record, I would hold that the jury was presented with sufficient evidence from which they could have found beyond a reasonable doubt that Defendant constructively possessed both caches of marijuana.