STATE OF MISSOURI,
JOSHUA RAY POLITTE,
Case No. SD31469
FILED: February 25, 2013
APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY
Honorable Randall Louis Head, Judge
REVERSED AND REMANDED WITH DIRECTIONS
Officers got a search warrant for a double-wide trailer with detached garage
“occupied by Kyle T. Kientzel and others.” The basis was an informant’s tip that he
had been there, “had talked to Kyle Kientzel and several others, and had seen
Kientzel go outside the residence and within seconds, bring in marijuana, which he
believe [sic] to be about a quarter pound.”
The search took place the next morning. Kientzel was not there, but the
trailer owner and other occupants were. Joshua Politte was among those in the
living room, where loose marijuana and paraphernalia were in plain view on a coffee
A bagged quarter-pound of compressed, brick-like marijuana was found
under the back corner of the couch.
Paraphernalia and loose marijuana were plainly visible near the bed and on a
dresser in the bedroom that Politte and his girlfriend shared.
Search of the detached garage yielded a duffel bag containing three marijuana
bricks similar in consistency to the quarter-pound found behind the couch.
Politte, when questioned about the marijuana that was found, said officers
“should talk to Kyle.”
The state charged Politte with possession with intent to distribute, a class B
felony. See § 195.211.1 After a bench trial, he was found guilty of the lesser felony of
possessing more than 35 grams of marijuana. See § 195.202.
Challenge to Felony Conviction
As Politte candidly concedes, the record supports a misdemeanor conviction
for possessing less than 35 grams of the loose marijuana. He urges, however, that
the state did not prove that he “knowingly possessed and exercised dominion and
control over a felonious amount of marijuana,” i.e., the compressed, brick-like
quantities found in the garage or under the couch.2
Our review for sufficiency of evidence is as in jury-tried cases. State v.
Buford, 309 S.W.3d 350, 354 (Mo.App. 2010). We accept evidence and reasonable
inferences favoring the conviction and disregard those to the contrary, but we cannot
Statutory references are to RSMo 2000, as amended through 2008.
2 The state’s theory was constructive possession. “A person who, although not in
actual possession, has the power and the intention at a given time to exercise
dominion or control over the substance either directly or through another person or
persons is in constructive possession of it.” § 195.010(34) (our emphasis).
supply missing evidence or give the state the benefit of unreasonable, speculative, or
forced inferences. State v. Moses, 265 S.W.3d 863, 865 (Mo.App. 2008).
To support any charge of possession, “it is necessary to prove that the accused
knew of the presence of the forbidden substance and that the same was under his
control.” State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975). The compressed
marijuana was hidden on jointly occupied premises. Thus, the state acknowledges
its need for additional evidence that Politte knew of and controlled these drugs.
Where a person is present on premises where drugs are found but
does not have exclusive use or possession of the premises, it may not
be inferred that he had knowledge of the presence of the drugs or
had control, so that no submissible case is made. Additional factors
Id. See also State v. Hendrix, 81 S.W.3d 79, 83 (Mo.App. 2002); State v. West,
21 S.W.3d 59, 63 (Mo.App. 2000).3
As proof that it carried this burden, the state cites (1) Politte’s routine access
to the living room and shared bedroom where drugs were found; (2) his proximity to
paraphernalia and loose marijuana in plain view on the coffee table; and (3) the
large quantities of marijuana in the detached garage.4
Factors may include self-incriminating statements; consciousness of guilt; a great
quantity of the illegal substance at the scene; or the subject of the controversy being
in public view, or commingled with the accused’s personal belongings, or in a place
where the accused has routine access. Hendrix, 81 S.W.3d at 83-84; West, 21
S.W.3d at 63. We consider the totality of circumstances in determining if sufficient
additional incriminating circumstances were proved. West, 21 S.W.3d at 63.
4 The record does not support the state’s claim to have shown that marijuana was
commingled with Politte’s personal belongings. Compare State v. Ramsey, 358
S.W.3d 589, 592 (Mo.App. 2012), and cases cited therein. This failure, among other
We agree that these facts, viewed favorably to the state, reasonably indicate
Politte’s knowledge of the marijuana. That he did not feign surprise or ignorance,
but told officers to talk to Kientzel, may also suggest such knowledge.
Yet it is one thing to infer knowledge of drugs, and another to infer control or
ownership of them. West and Hendrix are instructive.
West co-owned and jointly occupied her home. West, 21 S.W. 3d at 61.
When police arrived with a search warrant, she surrendered marijuana from her
Id. at 62.
A jar of liquid hidden in the freezer tested positive for
methamphetamine. Id. In reversing West’s meth-related convictions, our western
district noted that “[w]hile Ms. West had routine access to the freezer, the jar of
black liquid was in the back of the freezer,” and “even if Ms. West knew about the
methamphetamine in the freezer and recognized it as a controlled substance, this
knowledge alone fails to support a finding that Ms. West possessed the
methamphetamine.” Id. at 66.
In Hendrix, police found marijuana in the living room, a “yellow rock
substance” in a bedroom then occupied by Hendrix, and 37 rocks of cocaine base
hidden in the other bedroom. 81 S.W.3d at 81-82. Hendrix arrived during the
search, a crack pipe containing cocaine concealed on her person. Id. She admitted
using crack that day, but told officers that any “dope” in the apartment either “wasn’t
hers” or “couldn’t be pinned on her.” Id. at 81. She was charged with trafficking,
factors, distinguishes State v. Richardson, 296 S.W.3d 21 (Mo.App. 2009), the
case upon which the state principally relies.
based on the 37 rocks, and found guilty. Id. at 81-82. Her conviction was reversed
with repeated citation to West. Id. at 83, 85, 86.
West and Hendrix were stronger cases than this one. West co-owned the
house and, presumably, the freezer where the meth was found and had other drugs
in her purse. Hendrix, an admitted crack user who was arrested possessing a pipe
containing cocaine, occasionally delivered drugs for a dealer and sometimes kept the
dealer’s “stash” on her person. Hendrix, 81 S.W.3d at 82, 85. By contrast, any
proof of drug dealing here, or of handling a quarter-pound quantity, or of exiting the
trailer and returning with marijuana, involved Kyle Kientzel. Even if we ignore that
evidence, per our standard of review, nothing shows that Politte, rather than
Kientzel or any other occupant, controlled the compressed marijuana in the garage
or, for that matter, under the couch.
The record may indicate Politte’s familiarity with drugs and Kientzel’s illegal
activities, and Politte’s knowledge that drugs were on the premises, but does not
justify an inference that he possessed or controlled the felonious quantities of
compressed marijuana. Compare Hendrix, 81 S.W.3d at 85. Even if Politte had
routine access to the living room, “the evidence showed many others did as well,”
Moses, 265 S.W.3d at 866, and there was no showing that Politte used the detached
“This case, like West, presents circumstances that might indicate that the
defendant had knowledge of the substance, but no circumstances that could indicate
that the defendant exercised control over the substance.
Evidence of both is
required to support a conviction.” Hendrix, 81 S.W.3d at 86. We grant Politte’s
That said, Politte
is not entitled to be discharged because we found that the evidence
was insufficient to establish the State’s prima facie case for the class
C felony of possession. Well-established law states that, when we
overturn a conviction for insufficient evidence, we may enter a
conviction for the lesser offense if the evidence was sufficient for the
jury to find all the necessary elements for that offense.
State v. McClain, 301 S.W.3d 97, 103 (Mo.App. 2010). That is the case here, as
indicated above, regarding possession of marijuana, a class A misdemeanor. Per
McClain, therefore, we reverse this felony conviction and remand with directions to
enter judgment convicting Politte of possession of marijuana, a class A misdemeanor
under § 195.202.3, and to sentence him accordingly.
DANIEL E. SCOTT, P.J., - OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
DON E. BURRELL, C.J. – CONCURS