Opinion
No. 58907
Submitted: May 15, 2001 Filed: August 28, 2001
APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY THE HONORABLE JOSEPH P. DANDURAND, JUDGE
Arguing on behalf of Appellant: Bruce W. Simon, Kansas City, MO
Arguing on behalf of Respondent: Ann Edington, Asst. Prosecuting Attorney, Jefferson City, MO; Lisa Sutherland, Asst. Prosecuting Attorney, Jefferson City, MO joins on the briefs for Respondent
Before Edwin A. Smith, P.J., James M. Smart, Jr., and Victor C. Howard, JJ.
Shelby A. Crawford appeals his conviction on two counts of the class B felonies of possession with intent to distribute, deliver or sell marijuana and cocaine, in violation of § 195.211, RSMo 2000. On July 24, 2000, the court sentenced Crawford to seven years' imprisonment in the Missouri Department of Corrections on each count, to be served concurrently. Crawford appeals his convictions and sentences.
Section 195.211, RSMo 2000, states:
1. Except as authorized by sections 195.005 to 195.425 and except as provided in section 195.222, it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.
2. Any person who violates or attempts to violate this section with respect to any controlled substance except five grams or less of marijuana is guilty of a class B felony.
3. Any person who violates this section with respect to distributing or delivering not more than five grams of marijuana is guilty of a class C felony.
The judgment is reversed.
Factual and Procedural Background
Prior to trial, a hearing on Crawford's motion to suppress physical evidence was held on January 28, 2000. Crawford based the motion on the fact that the police had conducted a search and seizure without a warrant, probable cause, or consent. After testimony was presented, the court denied the motion. Crawford waived his right to a jury.
The State presented the following evidence: On March 12, 1999, while the Belton police were executing a search warrant at a house located at 16 Jasmine Street in Belton, the telephone rang and one of the officers answered it. On the telephone was a person identifying himself as "Dray," who, according to the officer, said he was on his way over. Approximately fifteen minutes later, a red Pontiac Firebird pulled up in front of the house. Crawford was driving the vehicle. Two other passengers were in the vehicle. Crawford got out of the Firebird, walked up to the house, and identified himself as "Dray" to the officer who opened the door. Crawford and one of the passengers, a male, were arrested and taken to the police station to be questioned; the other passenger, a juvenile female, was questioned at the scene. A police K-9 unit was called to the scene to search the outside of the car. The K-9 dog scratched at the driver side door, which indicated to the officers there were narcotics in the vehicle. One of the officers prepared an affidavit for a search warrant. After the warrant was obtained, the officers found, in the hub of the steering wheel of the car, a bag that held seven individually packaged smaller bags of marijuana, another bag containing two small bundles of cocaine base, and over a thousand dollars in cash. The serial numbers on one of the bills (a twenty-dollar bill) matched those that the officers had earlier used to purchase narcotics in a "controlled buy" at the 16 Jasmine Street residence.
Crawford did not present any evidence at trial. The court found him guilty on both counts, pronouncing sentence on July 24, 2000. Crawford appeals the convictions and sentences arguing there was insufficient evidence to prove he consciously possessed the drugs found in the vehicle.
Standard of Review
When reviewing a challenge to the sufficiency of the evidence, this court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993). This court does not weigh the evidence. Appellate review is limited to determining whether there is sufficient evidence from which reasonable persons could have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo.banc 1989). "[W]e defer to the trial court's superior position from which to determine credibility." State v. Villa-Perez, 835 S.W.2d 897, 901 (Mo.banc 1992). Credibility and weight of testimony are left to the fact-finder. State v. Shinn, 921 S.W.2d 70, 73 (Mo.App. 1996). The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case, and is entitled to accept the state's evidence as true and to make reasonable inferences based upon that evidence. Id.
Sufficiency of the Evidence
In his sole point on appeal, Crawford contends the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence in that there was insufficient evidence to show an adequate "nexus" between the defendant and the controlled substances found in the steering wheel of the car he was driving to support either actual or constructive possession of the materials. Crawford argues the State's evidence shows only that while the police were executing a search warrant, Crawford drove up in front of the house being searched; was arrested as he approached the premises; that the car was then seized without a warrant and later searched pursuant to a warrant. In the hub of the steering wheel of the car, the police found marijuana, cocaine, and $1,000.00 in cash. There was no evidence Crawford owned the car, and the police evidence indicated the car was owned by some other party.
Crawford contends that because he did not own the car, and because the State did not show how long he had possession of the car, and because there were others present in the car, this is merely a case of "circumstantial possession." The evidence, therefore, he says, is insufficient to support the charge that he possessed or had knowledge of the drugs. Crawford argues the only affirmative evidence against him is the fact that he was operating the vehicle and that he arrived as the premises were being searched as a result of previous allegedly illegal activity. He asserts these facts alone are not enough to establish that he was aware of the presence of the contraband in the vehicle's steering wheel.
Crawford primarily relies upon two Missouri cases to support his arguments: State v. Bowyer, 693 S.W.2d 845 (Mo.App. 1985), and State v. Allen, 744 S.W.2d 865 (Mo.App. 1988). In both cases, the defendant's conviction was overturned because the appellate court found insufficient evidence to support charges that the defendant had knowledge of the presence of controlled substances found in the vehicle he was driving, and, therefore, neither actual nor constructive possession could be established.
In the first of those two cases, State v. Bowyer, 693 S.W.2d 845, 846 (Mo.App. 1985), Bowyer was stopped by a highway patrol trooper for excessive speed. The trooper observed marijuana paraphernalia, searched the vehicle, and found marijuana cigarettes. Id. At trial, the defendant's wife, who was the vehicle's owner as well as a passenger, testified that the defendant and she were separated, he had not been in her vehicle for six months, the marijuana belonged to her brother, and that the defendant lacked any knowledge that the marijuana was in the vehicle. Id. at 846-847. She testified also that Bowyer was driving the car at her request. Id.. Bowyer's wife said she confiscated the marijuana from her brother, put it in her car, and intended to turn it in to the police. Id. She was aware of the marijuana; her ex-husband was not. Id. at 846-847.
The court concluded Bowyer never had possession of the marijuana and held that insufficient evidence existed to sustain the conviction. Id. at 849. The court reasoned that under the circumstances the mere presence of drug paraphernalia in the vehicle could not be used to impute knowledge and possession of the marijuana cigarettes to the defendant. Id. at 847. The court listed circumstances which had sufficed in similar cases to prove a conscious possession of contraband by a person in joint control of premises where contraband was found. Those circumstances include: ". . . routine access to an area in which contraband substances are kept [ State v. Kerfoot, 675 S.W.2d 658, 661 (Mo.App. 1984)]; the presence of large quantities of the substance at the scene where the accused is arrested [ State v. Barber, [ 635 S.W.2d 342] 344 [(Mo.App. 1982)]; and admissions to the police by the accused [ State v. Wiley, 522 S.W.2d 281, 292 (Mo.banc 1975)]. . . ." Id.
The Bowyer court stated that the mere presence of the accused on shared premises where the drugs are found does not suffice to convict for possession. Id. Nor does proximity to the contraband, alone, even where the substance is in plain sight, tend to prove ownership or possession as among several persons who share the premises. Id.
While "constructive possession is sufficient" and possession by a defendant who has "an immediate right to exercise dominion and control over the narcotic will support a conviction," such possession is not shown by the defendant's mere presence on premises which are not exclusively possessed. Id. at 848. Nor will a conviction stand where there is evidence that the defendant was merely present and associated with the person who controlled the drug in an automobile where the illegal substance was found. Id.
Here, the State says, Crawford called ahead and said he was "bringing some drugs by." This is an inaccurate interpretation of the transcript. The testimony at trial by Officer Billy Jones was as follows: "I answered the phone and, uh, someone told me that their name was Dray, and that he was on his way over." Later, Officer Jones said at trial that he "had been told by a confidential informant that [Dray] was a supplier of narcotics" and, Jones said, the informant had told Jones that Crawford was coming to the residence on that particular date "to deliver more narcotics." There was no testimony in the suppression hearing or the trial itself that Crawford said he was bringing drugs with him. Police Chief James Person also testified at trial that one of the detectives [presumably Billy Jones] had a conversation on the phone with "an individual," who told the detective that "Dray" (referring to Crawford) would be "coming out to the trailer to deliver some drugs." (See the trial testimony set forth in the attached appendix.) The double hearsay testimony was offered by the State to show why the officer called the K-9 unit. The trial court had responded to Crawford's objections earlier by stating that the hearsay evidence would not be considered on the issue of Crawford's guilt. Neither side addresses the issue of whether the informant's hearsay statement was actually in the case for purpose of guilt or innocence. The state simply argues incorrectly that Crawford himself said he was bringing drugs by. The defense, on the other hand, simply treats the hearsay evidence as excluded, presumably considering it a fairly obvious conclusion. Neither side discusses the colloquy in the transcript:
Under the particular circumstances, and in context, it appears that there was an understanding between the court and the defense that the trial court was allowing hearsay evidence on the continuing issue of the validity of the seizure, but was not considering it on the issue of guilt. See appendix attached to this opinion. Accordingly, we believe it would be unfair to say that counsel's objection to consideration of the hearsay in the issue of guilt was not preserved.
Q. And why did you have [the K-9 unit] come to the residence?
A. I had been told by [the informant] the night before that —.
[Defense]: Object to hearsay, your
Honor.
THE COURT: You know, I — I acknowledge that he's entitled to talk about why he did what he did, because of the information he got from a confidential informant. Is this person coming to testify; the CI?
[Prosecution]: No, your Honor.
THE COURT: It's hard for me to — Of course, I can tell you right now if there were a jury here, without an offer of proof I would sustain the objection. There isn't a jury here. I don't know what he's going to say.
We can either — As far as I'm concerned he probably ought to just testify to it and you can object if you believe what comes out of his mouth is objectionable. But for identification purposes and the reasons that he took the action that he took, the evidence is admissible, but not for evidence of guilt. . . . I'm going to reserve ruling on the objection. (emphasis added)
* * *
Q. Okay, why did you call Officer Peterson with the K-9 unit?
A. I had previously been told that the subject that went by the moniker of "Dray" was a supplier of narcotics. I had also been told that he was coming to the residence on that particular date to deliver more narcotics, and I felt there was a possibility that narcotics might be in the vehicle. I was also told that [Crawford's cousin], who was in the back seat, had informed another officer that there were hidden compartments —.
[Defense]: Same objection, your Honor.
THE COURT: That will be sustained.
That goes too far.
* * *
Under the circumstances, we think the most accurate interpretation is that the court was informing counsel that the court was not considering this hearsay statement for purposes of guilt or innocence. Thus, it appears the only evidence considered by the trial court on the issue of Crawford's knowing possession of the items in the steering wheel is the evidence that: 1) he was driving the car that particular day; 2) he came by the house being searched pursuant to a warrant; 3) someone had driven the same car earlier in connection with probable drug transactions; and 4) a bill found in the steering wheel had previously been used in connection with a drug transaction. Crawford had no drugs or paraphernalia on his person, and made no admissions. There is no evidence whether he had possession of the car, or was simply driving it at the request of one of the passengers.
In State v. Allen, 744 S.W.2d 865 (Mo.App. 1988), Allen was stopped by a trooper for speeding. The female passenger, who was seated in the right front seat, presented an automobile-rental agreement to the car showing she had rented the car. Id. at 866. The trooper asked the defendant to accompany him back to the patrol vehicle, which he did. Id. After receiving oral consent from both appellant and the female passenger, the trooper searched the vehicle and found in the trunk a large trash bag containing what turned out to be marijuana. Id. at 867. Both appellant and the passenger were placed under arrest. Id. There was no evidence that there were any of appellant's belongings in the trunk. The trooper testified that he found only women's clothing in the trunk. There was no evidence of any controlled substance anywhere else in the vehicle. There was no evidence of exclusive control of the vehicle by appellant. The Allen court thus concluded that the evidence adduced at trial failed to establish either actual or constructive possession of a controlled substance by appellant. Id. at 868.
This case bears some similarities to Allen. The car in question in this case was not owned by Crawford. There was no evidence presented as to whether one of the other individuals with him may have owned the car. There was also no evidence that, even if he had possession of the vehicle, he had enjoyed possession of the vehicle for longer than the day in question. The drugs were concealed in the hub of the steering wheel. Crawford, therefore, contends that his situation is analogous to that of the defendant in Allen, in that the circumstantial evidence was insufficient to support the conclusion he had knowledge of the presence of the controlled substances found concealed in the steering wheel of the vehicle he was driving.
In response to Crawford's contentions, the State argues that Crawford had "superior access" to the concealed drugs as the driver of the vehicle. The State also points out that there was testimony at trial from a daughter of the occupant of 16 Jasmine Street that a "red Firebird drove out to her house at least twice a week, at which time her father would walk to the car and then return to the house not more than ten minutes later." The State also argues that the officers found a twenty dollar bill, the serial numbers of which matched one they had used for a "controlled buy" of narcotics at 16 Jasmine Street earlier. There was no evidence as to when the controlled buy occurred. The State contends all these facts demonstrate Crawford's awareness of the presence and nature of the drugs and his conscious and intentional control over them. We disagree. In the absence of evidence that Crawford had enjoyed possession of the vehicle for a significant length of time, and evidence that the bill found in the hub was utilized in a recent controlled buy at 16 Jasmine Street, we cannot agree that the circumstances prove either constructive possession or conscious possession. The evidence shows beyond a reasonable doubt that the red Firebird was associated with drug transactions. But it is not the red Firebird that was on trial; it was Crawford. And the question that the evidence does not answer is: how closely associated with the red Firebird was Crawford?
This case differs from State v. Booth, 11 S.W.3d 887, 892 (Mo.App. 2000), in which the defendant was the owner and operator of the truck in which drugs were found in a toolbox. Although there was also a passenger in the truck, the court found that defendant had "superior access" to the box; the defendant was also found to be in personal possession of drug paraphernalia. Id. The court upheld the conviction of possession.
In this case, while there may have been "superior access," there was very little else to show that Crawford had actual or constructive possession of the drugs and related items. The facts indicating that someone apparently came regularly to that residence for probable drug transactions, driving the Firebird, combined with the fact that on the day in question Crawford called ahead, said he was coming by, and was driving the same Firebird, gave rise to suspicion and a permissible inference that Crawford was engaged in drug transactions. Certainly, Crawford's actions were suspicious under the circumstances. However, excluding consideration of the hearsay statements of the confidential informant, we believe there remains a reasonable inference that Crawford had some non-drug reason for coming to the residence, and that he had only recently borrowed the car, or that perhaps the owner of the car was one of the passengers and had asked Crawford to drive. Because here the evidence does no more than establish substantial suspicion of guilt, we do not think that, in the absence of the hearsay statements of the confidential informant, his guilt can be inferred beyond a reasonable doubt. A verdict based upon suspicion will not be permitted to stand. State v. Hardy, 326 Mo. 969, 34 S.W.2d 102, 103 (1930).
The judgment of conviction is reversed.
Smith and Howard, JJ., concur.