In the Missour Cour of Ap
ri rt ppeals
s
Western Distr
rict
STATE OF MISSO
OURI, )
Responden
R nt, )
v. ) WD76769
) FILED: J
June 17, 2
2014
RLY PAUL,
KIMBER , )
Appellan
nt. )
APPEAL FROM TH CIRCU COUR OF CLINTON COUNTY
A F HE UIT RT
THE HONORA
H ABLE PAUL T. LUCKE
L ENBILL, JR., JUDGE
BEFORE DIV
VISION FOU : JAMES E. WELS , CHIEF J UDGE PR
UR S SH RESIDING,
VICTO C. HOW
OR WARD AND LISA WHIT HARDW
TE WICK, JUDGGES
Following a bench trial, Kimberly Paul was co
F , P onvicted of possessing the contro
f olled
substance of synthetic marijua
ana, a misd violation of Section 195.202.1 Th
demeanor v he
circuit co senten
ourt nced her to forty-eight hours in the Clinton C
e County Jail. On appea
al,
Paul con
ntends the State failed to prove th she had knowledg of the na
d hat d ge ature of the
controlle substanc For rea
ed ce. asons expla
ained herein we affirm
n, m.
FAC
CTUAL AND PROCEDURA HISTORY
AL
1
All statut
tory reference are to the Revised Statu
es utes of Misso 2000, as u
ouri updated by th Cumulative
he e
Suppleme 2013, unle otherwise indicated.
ent ess e
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.
STANDARD 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).
2
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.
ANALYSIS
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
3
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.
4
In addition to her argum
n o ments regar
rding her ig
gnorance of the illegali of the
f ity
substance, Paul as
sserts that "she genuin
" nely believe the cigar
ed rette contained a form of
incense." To the extent Paul is arguing that there w insufficient evidence to prove
t was e
that she had knowledge of the substance general character, that argum
e e's ment also fails.
While th
here was tes
stimony at trial suppor
rting Paul's position, w
when properly viewing the
record in the light most favora
n m able to the verdict, the evidence is sufficient to prove
v s
beyond a reasonab doubt th Paul had knowledg of the ge
ble hat d ge eneral natur of the
re
substance found in her kitchen. When Chief Garton found the substance in Paul's
n C n e e
home, it was in an ashtray and was rolled up in a pa
t d d aper in a m
manner com
mmonly used to
d
smoke marijuana. Additionally, Paul test
m tified that th "Mr. Hap
he ppy" packag referred to
ge
its conte
ents as "has
sh"— a com
mmon slang term for m
g marijuana a the short form of
and
"hashish which is the resin extract of the cannabis plant. See State v. R
h," e s e Reiley, 476
S.W.2d 473, 473 (M banc 19
Mo. 972). Finally, the subs
stance's lab made m
bel multiple
statements regarding its legality. Based on this evid
dence, the circuit cour could
rt
reasona
ably infer tha Paul was not under the impres
at s r ssion that th "Mr. Hap
he ppy" produc
ct
was sim
mply incense and that she was aw
e s ware of the s
substance's drug-like nature.
s
Accordin
ngly, the co did not err in failing to sustain Paul's mo
ourt g n otion for jud
dgment of
acquittal. The poin on appea is denied.
nt al .
CONCLUSION
O
The judgment of convic
T ction is affir
rmed.
____________________________
_________
___
LISA WHITE HARDWICK, JUDGE
E K
5
ALL CONCUR.
6