Glaze also relies on Buford for the settled principle that "[w]hile nervous conduct may be probative of the defendant's awareness of [illegal] drugs, such conduct alone is not sufficient evidence to prove the defendant's unlawful possession." Id. at 358 (quoting State v. Villaneuva , 147 S.W.3d 126, 130 (Mo. App. W.D. 2004) ). But as Buford noted, " ‘[n]ervousness is one incriminating fact that will support a conviction if consistent with the totality of the circumstances.’ "
"While nervous conduct may be probative of the defendant's awareness of [illegal] drugs, such conduct 'alone is not sufficient evidence' to prove the defendant's unlawful possession." State v. Villaneuva, 147 S.W.3d 126, 130 (Mo.App. W.D. 2004) (quoting State v. Johnson, 81 S.W.3d 212, 216 (Mo.App. S.D. 2002)). "Nervousness is one incriminating fact that will support a conviction only if consistent with the totality of the circumstances."
Our review of these points is limited to a determination of whether there was sufficient evidence from which a reasonable trier of fact could have found Morrison guilty beyond a reasonable doubt. State v. Villaneuva, 147 S.W.3d 126, 128 (Mo.App. 2004). We must accept as true all of the evidence and inferences favorable to the State and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact.
"Hayes, 175 S.W.3d at 594 (citing State v. Villaneuva, 147 S.W.3d 126, 130 (Mo. Ct. App. 2004)) (emphasis added). Thus, to meet its burden of proof the Commonwealth had to satisfy a heightened standard in demonstrating that McAlpin (1) knew the substance was present, and (2) had it under his control to prove he had constructive possession of it.
Harrison did not have exclusive access to the area outside the trailer where the motorcycle was found. United States v. White, 932 F.2d 588, 589-90 (6th Cir. 1991) (evidence insufficient to show even constructive possession where, although patch of marijuana was found three feet from defendant's trailer, defendant did not own the land or live on the land exclusively); Kenney v. Commonwealth, 199 Ky. 79, 250 S.W. 494, 495 (1923) (mere fact that recently stolen tobacco was found in defendant's unlocked barn, to which not only members of his own family, but also more distant relatives and mere acquaintances, had free access, insufficient to justify inference of guilt or to require him to explain its presence); State v. Villaneuva, 147 S.W.3d 126, 130 (Mo.Ct.App. 2004) ("A defendant's exclusive control over the premises is sufficient to raise an inference of possession and knowledge. However, joint control of the premises requires further evidence to prove the defendant knew the substance was present and had it under his control.").
While "[a] defendant's exclusive control over the premises is sufficient to raise an inference of possession and knowledge[,]... joint control of the premises requires further evidence to prove the defendant knew the substance was present and had it under his control." Hayes v. Commonwealth, 175 S.W.3d 574, 594 (Ky. 2005) (quoting State v. Villaneuva, 147 S.W.3d 126, 130 (Mo. Ct. App. 2004)). Malone argues that the Commonwealth offered no evidence whatsoever to show that any particular person possessed the "well-hidden drugs."
While visible nervousness is probative of a defendant's awareness of the controlled substance, it is merely one incriminating fact that will support a conviction if consistent with the totality of the circumstances. State v. Villaneuva, 147 S.W.3d 126, 130–31 (Mo.App. W.D.2004); Franco–Amador, 83 S.W.3d at 558. When a defendant has another equally probable reason for marked nervousness, there must be additional incriminating evidence before a permissible inference can be drawn that the defendant had knowledge of and control over drugs located in a vehicle.
Additionally, we agree with Appellant that "nervousness alone is not sufficient evidence from which reasonable jurors could find [him] guilty . . .," however, the case law is clear that "[v]isible nervousness is probative of [a] defendant's awareness of the controlled substance." State v. Mishler, 908 S.W.2d 888, 892 (Mo.App. 1995); see also State v. Villaneuva, 147 S.W.3d 126, 131 (Mo.App. 2004) (quoting State v. Johnson, 81 S.W.3d 212, 215 (Mo.App. 2002)) (holding that "[w]hile nervous conduct may be probative of the defendant's awareness of drugs, such conduct alone is not sufficient evidence to prove the defendant's unlawful possession. 'Nervousness is one incriminating fact that will support a conviction only if consistent with the totality of the circumstances'").
Our review is limited to a determination of whether there was sufficient evidence from which a reasonable trier of fact could have found Nichols guilty beyond a reasonable doubt. State v. Villaneuva, 147 S.W.3d 126, 128 (Mo.App. 2004). We must accept as true all of the evidence and inferences favorable to the State and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact.
However, joint control of the premises requires further evidence to prove the defendant knew the substance was present and had it under his control." State v. Villaneuva, 147 S.W.3d 126, 130 (Mo.App. 2004) (citation omitted). Here, Vargas and Defendant were both in the Buick where the marijuana was found.