State of Missouri vs. Kimberly Paul

STATE v.

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In OF MISSO RLY PAUL, APPEAL F TH BEFORE DIV VICTO Following a ce of synth ourt senten ntends the ed substanc

tory reference ent 2013, unle the M OURI, R , FROM TH HE HONORA VISION FOU OR C. HOW bench trial, etic marijua nced her to State faile d ce. For rea FAC

es are to the ess otherwise issour West Responden Appellan HE CIRCU ABLE PAUL UR: JAMES WARD AND , Kimberly P ana, a misd forty-eight d to prove th asons expla CTUAL AND P Revised Statu e indicated. ri Cour ern Distr

nt, nt. ) ) ) ) ) ) UIT COUR L T. LUCKE

S E. WELS LISA WHIT Paul was co demeanor v hours in the hat she had ained herein PROCEDURA utes of Misso rt of Ap rict

WD767 F ILED: J RT OF CL ENBILL, JR SH, CHIEF J TE HARDW onvicted of violation of e Clinton C d knowledg n, we affirm AL HISTORY ouri 2000, as u ppeals 69 June 17, 2 INTON C R., JUDGE JUDGE PR WICK, JUDG f possessin Section 19 County Jail. ge of the na m. updated by th s 2014 OUNTY RESIDING, GES g the contro 5.202. 1 Th On appea ature of the he Cumulative olled he al, e

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On November 22, 2011, Chief Glen Garton and Officer Dennis Banks of the Lathrop police department, went to Paul's residence in connection with an unrelated matter. Chief Garton knocked on the door of Paul's residence and identified himself. Paul opened the door and invited the officers in. While inside, Chief Garton observed what appeared to be the burnt end of a marijuana cigarette in an ashtray on Paul's kitchen table. Chief Garton seized the cigarette, which was later determined by laboratory analysis to contain .03 grams of synthetic cannabinoid. The State subsequently charged Paul with the class A misdemeanor of possession of a controlled substance in violation of Section 195.202,

alleging that "on or about November 22, 2011 . . . the defendant possessed a synthetic cannabinoid (synthetic marijuana), . . . knowing of its presence and nature." Following a bench trial, the circuit court denied Paul's motion for judgment of acquittal and took the case under advisement. On August 6, 2013, the court entered its final judgment and sentence, finding Paul guilty of possession of a controlled substance and sentencing her to forty- eight hours in jail. 2 Paul appeals. S TANDARD OF REVIEW Paul's point on appeal challenges the sufficiency of the evidence supporting her conviction. In reviewing the sufficiency of the evidence in a court-tried criminal case, we apply the same standard as in a jury-tried case. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). Our role is limited to determining whether the State presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc

2 The circuit court's final judgment was entered as a result of this Court's dismissal of Paul's previous appeal for lack of a final judgment. State v. Paul, 401 S.W.3d 591 (Mo. App. 2013).

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2002). We consider the evidence and inferences in the light most favorable to the verdict, disregarding all contrary evidence and inferences. Id. at 407–08. A NALYSIS In her sole point on appeal, Paul contends the circuit court erred in failing to grant her motion for acquittal because the evidence was insufficient to prove beyond a reasonable doubt that she had knowledge of the nature of the controlled substance found in her kitchen. Section 195.202 provides that it is unlawful for any person to possess or have under his control a controlled substance. In 2011, the statutory definition of "controlled substance" was amended to include "synthetic cannabinoids." § 195.017.2(4)(ll). "To sustain a conviction for possession of a controlled substance, the State must prove the following two elements: (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. Taylor, 407 S.W.3d 153, 159 (Mo. App. 2013); § 195.010(34). Here, Paul does not dispute that she had possession of the controlled substance, nor does she dispute that she was aware of such possession. Rather, Paul argues that she "lacked the knowledge of the nature of the drug found in her home." The crux of Paul's argument is that she "had no knowledge of the presence of an illegal substance in her home." (Emphasis added). She notes that the possession of synthetic marijuana did not become illegal until August 28, 2011, after the passage of H.R. 641, 96th General Assembly, Regular Session (Mo. 2011). Paul presented testimony at trial that she hosted a "card party" at her home on November 17, 2011. When Paul left her party briefly "for a beer run," her guests called

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her and asked if they could burn "K2" or "Mr. Happy" — both brand names for synthetic marijuana. One of Paul's guests had purchased the "Mr. Happy" at a gas station. Paul testified that she instructed her guests to wait until she got home because she was not familiar with the product. When Paul returned home, she inspected the package. Paul testified that the substance's label warned that its contents were "not for human consumption," and that the label stated "probably three times" that its contents were "one hundred percent legal." After reading the "Mr. Happy" package, Paul allowed the cigarette to be burned in the ashtray "like . . . incense." Paul testified that no one actually smoked the substance. The flaw in Paul's argument is that the State was not required to prove that she knew the subject substance was illegal. The Narcotic Drug Act previously defined "possessing a controlled substance" as occurring when "a person, with the knowledge of the presence and illegal nature of a substance, has actual or constructive possession of the substance." § 195.010(33), RSMo 1997. The Act, however, has since been amended to delete the word "illegal" from the definition of possession. § 195.010(34). Thus, while the State is required to prove that the defendant had knowledge of the general character of the substance — "i.e., that the substance was a drug of some sort, and not just baking power" — the State is not required to prove that the defendant knew the substance was illicit. 32 Mo. Practice Series, Criminal Law §40.4, at 392 (2d ed. 2004). Consequently, Paul's arguments that she believed the substance was legal must fail because a defendant's knowledge of the illegal status of a substance is irrelevant in a prosecution for possession of a controlled substance.

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n addition to ce, Paul as ." To the e had knowl here was tes n the light m a reasonab ce found in t was in an marijuana. ents as "has h," which is 473, 473 (M nts regardi ably infer tha mply incense ngly, the co l. The poin The judgme o her argum sserts that " xtent Paul edge of the stimony at most favora ble doubt th n her kitche ashtray an d Additionall sh"— a com the resin e Mo. banc 19 ng its legal at Paul was e and that s ourt did not nt on appea nt of convic ments regar "she genuin is arguing t e substance trial suppor able to the v hat Paul had n. When C d was rolled y, Paul test mmon slang extract of th 972). Fina ity. Based s not under she was aw err in failing al is denied. CO ction is affir 5 rding her ig nely believe that there w e's general rting Paul's verdict, the d knowledg Chief Garton d up in a pa tified that th g term for m e cannabis lly, the subs on this evid r the impres ware of the s g to sustain . ONCLUSION rmed.

_________ LISA WHITE gnorance of ed the cigar was insuffic character, position, w evidence is ge of the ge n found the aper in a m he "Mr. Hap marijuana a s plant. See stance's lab dence, the ssion that th substance's n Paul's mo _________ E HARDWICK f the illegali rette contai ient eviden that argum when prope s sufficient eneral natur e substance manner com ppy" packag and the sho e State v. R bel made m circuit cour he "Mr. Hap s drug-like otion for jud __________ K, JUDGE ity of the ned a form ce to prove ment also fa rly viewing to prove re of the e in Paul's mmonly used ge referred rt form of Reiley, 476 multiple rt could ppy" produc nature. dgment of _________ of e ils. the d to to ct ___

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A LL CONCUR.