In his first point, Ross contends that the circuit court erred in overruling his Motion for Judgment of Acquittal at the close of the evidence because the State failed to prove he possessed the baggie of Ecstasy. In State v. McLane, 136 S.W.3d 170 (Mo.App. 2004), the court explained the requirements for finding a person guilty of possessing controlled substances: "To convict a person of possessing a controlled substance, the state must prove that the person had conscious and intentional possession of the substance, either actual or constructive, and was aware of the substance's presence and nature."
State v. Elmore, 43 S.W.3d 421, 427 (Mo.App.2001).State v. McLane, 136 S.W.3d 170, 173 (Mo.App.2004). “ ‘[C]ircumstantial evidence is afforded the same weight as direct evidence.’ ”
State v. Elmore, 43 S.W.3d 421, 427 (Mo.App.2001). State v. McLane, 136 S.W.3d 170, 173 (Mo.App.2004). “ ‘[C]ircumstantial evidence is afforded the same weight as direct evidence.’ ”
This court agrees that the principles applicable to possession of controlled substances are apropos to possession of other illegal materials; that those principles are applicable to this case. In State v. McLane, 136 S.W.3d 170 (Mo.App. 2004), the court explained the requirements for finding a person guilty of possessing controlled substances. "To convict a person of possessing a controlled substance, the state must prove that the person had conscious and intentional possession of the substance, either actual or constructive, and was aware of the substance's presence and nature."
"The State is not required to show actual, physical possession of the substance to establish possession, but may show constructive possession by circumstantial evidence." State v. Powell, 973 S.W.2d 556, 558 (Mo.App. 1998); see also State v. McLane, 136 S.W.3d 170, 173 (Mo.App. 2004) (holding there was sufficient evidence that a vehicle passenger was in possession of a controlled substance where the police officer saw the passenger side window roll up and down and then located a change purse containing methamphetamine on the ground beneath the window). In the present matter, the State adduced sufficient evidence to prove Appellant possessed the keycase at issue.
As stated above, Ashley Ross acknowledged that she had given a statement to the police that [petitioner] handed her the drugs; thus, [petitioner] had actual possession. [Petitioner] argues that that is somehow insufficient because his possession was so transitory. We find relying on [State v. Webster, 754 S.W.2d 12 (Mo. App. 1988)], [State v. Camerer, 29 S.W.3d 422 (Mo. App. 2000)], [State v. McLane, 136 S.W.3d 170 (Mo. App. 2004)], and [State v. Belton, 108 S.W.3d 171 (Mo. App. 2003)], supra at pp. 4-6, that his possession, although fleeting, when coupled with his statement to his niece to conceal the drugs before they were detected, is sufficient evidence for a reasonable juror to find beyond a reasonable doubt that [petitioner] had actual possession of the baggie of Ecstasy. The only distinctions that can be drawn between the cited cases and the case at bar is that the witnesses in the cited cases were police officers, while here the witness was [petitioner]'s niece, a passenger in the car, and that, instead of throwing the drugs from the car, [petitioner] directed his niece to conceal them to avoid detection. These distinctions are of no consequence. Point I is denied.
The Court further held, "In completing his attempted concealment or disposal of the illicit materials, Defendant necessarily would have had those materials within his easy reach and convenient control, i.e. , in his actual possession." Id. Similarly, in State v. McLane , 136 S.W.3d 170 (Mo. App. S.D. 2004), the defendant was sitting in the passenger seat of a vehicle during a traffic stop. The officer noticed the passenger window open and then close, so he walked around the vehicle to the passenger side.
We begin and end our analysis with the evidence that supports findings of Defendant's actual possession of a controlled substance and drug paraphernalia. State v. McLane , 136 S.W.3d 170 (Mo.App. 2004), is instructive on the issue of actual possession when, like here, the evidence is circumstantial. In that case, a law enforcement officer, after initiating a traffic stop, discovered a change purse containing a controlled substance laying on the ground two feet away from the stopped vehicle.
§ 195.010(34); State v. McLane, 136 S.W.3d 170, 173 (Mo.App.S.D.2004). The parties agree that Koch did not have actual possession of the one-pot meth lab.
Courts from other jurisdictions have upheld jury verdicts on similar evidence showing recent possession through the temperature of the contraband. See, e.g., State v. McLane, 136 S.W.3d 170, 173–74 (Mo.Ct.App.2004) (finding sufficient evidence that defendant “undertook to surreptitiously dispose” of contraband where change purse containing methamphetamine was found two feet from defendant's vehicle and “remained warm to the touch” though the temperature was about 30 degrees); State v. Barksdale, 638 S.E.2d 579, 582 (N.C.Ct.App.2007) (concluding ample evidence existed for possession of firearm by a felon where warm, dry handgun was found in wet grass six inches from defendant's hand); Doherty v. State, 131 P.3d 963, 969 (Wyo.2006) (finding reasonable inference to support possession of controlled substance from fact methamphetamine was discovered inches away from defendant and was “warm to the touch”). In addition, Officer Nissen did not see anyone else in the area from the time he first noticed Pfaltzgraff walking in the downtown area at 3:30 a.m. through the time of the stop.