While it may be a seemingly
straightforward crime, “possession of a chemical with the intent to create a
controlled substance”[1]
leaves significant lingering discord among Missouri courts regarding whether
the requisite element of possession strictly refers to possession at the time of the arrest or whether it
allows for more flexible temporal ranges.
I. Facts
and Holding
Randy E. Twitty was arrested on August 29,
2013,[2]
and subsequently charged and convicted in the Circuit Court of St. Charles
County for possession of a chemical with the intent to create a controlled
substance.[3]
A St. Charles County detective was
reviewing the National Precursor Log Exchange (“NPLX”) for suspicious purchases
of pseudoephedrine when he noticed that Debra Galebach had recently made four
purchases of pseudoephedrine within thirty-eight days.[4] Three task force detectives traveled to
Galebach’s residence in order to inquire about the pseudoephedrine and whether
she still had the pills in her possession.[5] When they arrived at the residence, two
detectives knocked on the front door, while one traveled to the back of the
residence to look through a sliding glass door.[6] Randy Twitty answered the door, and after the
two detectives stated the reason for their presence was to discuss recent pseudoephedrine
purchases, Twitty asked for the detectives to wait outside while he secured his
dog in the house.[7] While Twitty was inside the residence, the
detective looking through the sliding glass window watched as Twitty walked
into the kitchen, tore up cold-medicine boxes, and then placed the remnants of
the torn boxes in the bottom of the kitchen trash bin.[8]
Twitty subsequently consented to a search
of the residence where the detectives searched for and found the torn pieces of
two cold medicine boxes and empty “blister packs.”[9] The writing on the front of the boxes
contained the words “Wal-Phed D” and “Pseudoephedrine Hydrochloride.”[10] The discarded blister packs also contained
the words “Pseudoephedrine Hydrochloride.”[11] Detectives also found a Walgreens pharmacy
bag and two Walgreens receipts showing Wal-Phed D purchases made at 9:23 A.M.
and 9:57 A.M. on that same day.[12] While the medication boxes, pharmacy bag, and
receipts were found in the residence, no actual pseudoephedrine was found
inside the residence.[13]
When they interviewed him on the scene after
finding the torn up boxes, Twitty explained to detectives that he and Galebach
had each purchased one box of Wal–Phed D earlier that day.[14]
Twitty opened the Wal–Phed boxes after
Galebach left for work, then subsequently removed the pills from their blister
packs.[15]
Twitty then drove to a commuter lot
where he traded the pills to an unknown person for a quarter gram of methamphetamine
and $50.[16] After receiving the methamphetamine and the
cash, he drove to a park where he proceeded to smoke the methamphetamine.[17] Twitty admitted to detectives that he had
purchased and then traded pseudoephedrine pills in exchange for methamphetamine three
times in the past month.[18] Twitty also admitted to police that he had
placed the boxes and blister packs in the trashcan.[19]
Next, “[t]he State charged Twitty, acting in concert with
another, with possession of a chemical (i.e., pseudoephedrine) with the intent
to create a controlled substance (i.e., methamphetamine).”[20]
The Circuit Court of St. Charles County found Twitty guilty of
the charge.[21] Twitty
appealed the circuit court’s verdict, and after the verdict was vacated and
reversed by the Missouri Court of Appeals, Eastern District, the Supreme Court of
Missouri transferred the case pursuant to article V, § 10 of the Missouri
Constitution.[22]
II. Legal Background
Twitty was convicted under RSMo § 195.420,
which states: “It is unlawful for any person to possess chemicals listed in subsection 2 of Section 195.400 . . . with
the intent to manufacture, compound, convert, produce, process, prepare, test,
or otherwise alter that chemical to create a controlled substance.”[23] Twitty’s only point on appeal was the
challenge of the element of “possession.”[24] The word “possess” is defined by the General
Assembly to mean:
[A] person, with the knowledge of the presence and nature of a
substance, has actual or constructive possession of the substance. A person has actual possession if he has the
substance on his person or within easy reach and convenient control. 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.[25]
Twitty argued that the judgment against
him was entered erroneously because the State did not present sufficient
evidence that he possessed pseudoephedrine at
the time that detectives searched his house.[26] While they found receipts and packages of pseudoephedrine,
the fact that no actual medication was found could only prove that Twitty possessed
the medication prior to the search, according to
Twitty’s argument.[27] In order to prove that Twitty did, in fact,
possess a controlled substance, the State was required to show “conscious and
intentional possession of the substance, either actual or constructive, and
awareness of the presence and nature of the substance.”[28]
III. Instant
Decision
The Eastern District, relying on RSMo § 195.010(34), held that there was insufficient
evidence to convict Twitty of “actual possession”
of a controlled substance because, at the
time of arrest, Twitty did not hold a controlled substance on his person or
within his easy reach and convenient control.[29] Further, the court held that there was also
insufficient evidence to convict Twitty for “constructive possession” of a
controlled substance, because, at the
time of arrest, he “lacked both the power and intention to exercise
dominion or control over the controlled substance either directly or through
another person or persons.”[30]
The appellate court reasoned that
Twitty’s conviction could only be sustained if, in effect, statutory
definitions of actual and constructive possession were fused, creating a third
category of possession.[31]
It elaborated:
This third category of possession would be one in which
“constructive possession” encompasses “actual possession” (i.e., Defendant’s
conviction would be upheld for past actual possession under the theory
of constructive possession). However,
the statute as written, prescribes two separate and distinct categories of
possession, neither of which fully encompasses the other.[32]
On appeal, the Supreme Court of Missouri analyzed the case
under the question of whether the State presented sufficient evidence from
which a trier of fact could have reasonably found the defendant guilty.[33]
In its analysis, the court found that the issue of whether
Twitty possessed the pseudoephedrine at the time of the search or prior to the
search was indistinguishable.[34] The court noted that no part of the relevant
statutes limited the concept of possession to the specific time when the
defendant is searched or arrested.[35] Therefore, Twitty’s argument that he could
not be convicted because he did not possess the pseudoephedrine at the time of the search was “a
distinction without a difference,” according to the court.[36]
IV. Comment
The casual nature in which the Supreme
Court of Missouri dismissed the fairly lengthy analysis and opinion by the
Eastern District should give Missourians pause.
For as frequently as Missouri men and women are arrested and charged
with possession of a chemical with the intent to create a controlled substance,
it is imperative that Missouri courts be consistent when
defining
the temporal limits regarding possession.
The dreaded fear of the slippery slope should require the element of
possession of a controlled substance to be possession at the time the defendant was arrested. If the temporal lapse in time between
possession and arrest is lengthened, the possibility remains that, any time a
defendant admits to possessing a chemical in the past, he or she may still be
arrested, charged, and subsequently convicted. While an entirely new statute may not need to
be effectuated, such as suggested by the Eastern District, every jurisdiction
should at least agree regarding what point in time a defendant needs to have
either actual or constructive possession of a chemical in order to be convicted
under Missouri law.
- Sheaffer Fennessey
[1] Mo. Rev. Stat. § 195.420 (2000) (current version at Mo. Ann. Stat. § 579.110 (West 2017)).
[2] State v. Twitty, No. ED 102606, 2016 WL 2731943, at *1 (Mo.
Ct. App. May 10, 2016), reh’g and/or
transfer denied (June 30, 2016), transferred,
506 S.W.3d 345 (Mo. 2017) (en banc).
[4] Id. at 346.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 346–47.
[17] Id. at 347.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. (alteration in original) (quoting
Mo. Rev. Stat. § 195.420 (2000) (current version at Mo. Ann. Stat. § 579.110 (West 2017)).
[24] Id.
[26] Id.
[27] Id.
[28] Id. (quoting State v. Stover, 388 S.W.3d 138,
146–47 (Mo. 2012) (en banc)).
[29] State v. Twitty, No. ED 102606, 2016 WL 2731943, at *4 (Mo.
Ct. App. May 10, 2016), reh’g and/or
transfer denied (June 30, 2016), transferred,
506 S.W.3d 345 (Mo. 2017) (en banc).
[31] Id.
[32] Id.
[33] Twitty, 506 S.W.3d at 347.
[34] Id.
[35] Id.
[36] Id.
