STATE OF MISSOURI, )

) Respondent, ) ) vs. ) No. SD33054 ) Filed: January 28, 2015 KENNY DEAN KOCH, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

Honorable Michael M. Pritchett, Circuit Judge

REVERSED AND REMANDED WITH DIRECTIONS A jury convicted Kenny Dean Koch (“Koch”) of the c lass D felony of possession of methamphetamine-related drug paraphernalia with the intent to use, in violation of section
195.233. 1 Koch was sentenced, as a prior and persistent off ender, to seven years in the Missouri Department of Corrections, with credit being given for all time served. In Koch’s single point, he challenges the sufficiency of the evidence to su pport his conviction. Finding merit to Koch’s claim, we reverse the judgment and remand with dire ctions.

1 All references to statutes are to RSMo 2000, unles s otherwise indicated.2 

### Facts and Procedural Background We review the evidence in the light most favorable to the jury’s verdict, rejecting all contrary evidence and inferences. See State v. Newberry , 157 S.W.3d 387, 390 (Mo.App. S.D. 2005). The evidence adduced at trial was that on April 11 , 2012, Koch, and another man, Larry Rushing (“Rushing”), arrived at Michelle Swihart’s (“Swihart”) mobile home around 6:30 a.m. Swihart had known Koch since 2007, but had not seen him for a long time. Both men stayed until about 10:00 a.m. Koch returned later that af ternoon with Jamie Dent (“Dent”) and asked Swihart to do some laundry that he had brought in a backpack. Swihart agreed, and Dent and Koch remained at the residence while Swihart did th e laundry. However, Swihart made Dent and Koch leave around 4:30 p.m. because Koch discha rged a firearm outside around Swihart’s children. Sometime after 10:00 p.m., Swihart testified she wa s in bed with her children, in the far end of her mobile home, when she awoke hearing voic es outside her bedroom window. She identified the voices as being that of Rushing and another man, Joey 2 Kellis (“Kellis”). From the conversation, she believed she was about to be robb ed and called 9-1-1. Swihart told the dispatcher that she was alone in her mobile home wi th her three children and “was being robbed.” At 1:30 a.m. on April 12, 2012, Ripley County sher iff’s deputies, Jesse Drumm (“Deputy Drumm”) and Jeremy Walter (“Deputy Walter”) were di spatched to Swihart’s mobile home on suspicion of an armed burglary in progress. They a rrived approximately ten minutes after

2 Joey Kellis was sometimes referred to as “Kelly” K ellis in the record.3

receiving the call from dispatch. Upon arrival, De puty Walter observed through the front window a man standing inside who then turned and ra n toward the other end of the mobile home. Deputy Drumm opened the front door, identified him self, and entered the residence with his gun drawn. He moved left to the kitchen area w here he “staged” himself behind the refrigerator and looking down the hallway, began or dering people to come out; the living room was to his right. Deputy Drumm repeated his order to come out at least three times before Swihart came out of the back bedroom with a young c hild. Swihart told the officers there were three men and one woman still in the home with two firearms, and they were in the back room with her other children. Swihart appeared to be un der the influence of drugs. Deputy Walter took Swihart and the child to his patrol car. Upon re-entering the Swihart residence, Deputy Wal ter saw a “one[-]pot meth lab” (“meth lab”) in the living room and so advised Depu ty Drumm. The meth lab consisted of chemicals mixed in a twenty-ounce Mountain Dew bott le. Deputy Walter then called for assistance at which time Sergeant Mike Barton (“Sgt . Barton”); Trooper Brian Arnold (“Trooper Arnold”), a narcotics investigator with the Divisio n of Drug and Crime Control of the Missouri State Highway Patrol; and several other law enforce ment officers responded to the scene. Upon arrival, Sgt. Barton announced his presence a nd Dent came out holding Swihart’s nine-month-old child. Eventually, the remaining oc cupants of the residence were removed: Swihart’s third child, Rushing, and Koch—who was th e last to come out. Before coming out, Koch was seen by an officer, looking through a back door, standing in the bathtub. The bathroom was located between two bedrooms toward th e back of the mobile home and across from a small hallway leading to the back door. Koc h appeared to be under the influence of methamphetamines or heavy narcotics.4

Swihart consented to a search of her residence and Trooper Arnold, who had been called to assist with the meth lab, entered Swihart’s home . Trooper Arnold observed in the living room the Mountain Dew bottle and a black duffle bag cont aining numerous items of drug paraphernalia, all of which used to manufacture met hamphetamine. The Mountain Dew bottle had ingredients in it for making methamphetamine, a nd Trooper Arnold recognized it as a meth lab. Trooper Arnold also found a black backpack in the “middle bedroom” of the mobile home along with firearms and substances that later tested positive for methamphetamine; the backpack also contained several items used to make methamphetamine. Arrests were made and Koch was originally charged in Ripley County in a seven-count information. Venue was changed to Butler County, a nd Koch proceeded to jury trial on only three counts: attempt to manufacture a controlled substance (Count 1), in violation of section 195.211; possession of methamphetamine-related drug paraphernalia with intent to use it to produce methamphetamine (Count 2), in violation of section 195.233; and unlawful possession of a firearm (Count 3), in violation of section 571 .070. 3 Specifically, Count 2 charged that on April 12, 2012, Koch “possessed a one[-]pot meth la b, which was drug paraphernalia, knowing it was drug paraphernalia, with intent to use it to pr oduce methamphetamine, a controlled substance.” A jury trial was held on August 1, 2013. Koch did not testify, but Swihart, Dent, Officer Drumm, Trooper Arnold, and several other law enforc ement officers did.

3 These charges and counts do not correspond to thos e set forth in the Amended Information and Judgment . In the Amended Information and Judgment, Count 2 is design ated as “Count 5” and Count 3 is designated as “Cou nt 6.” The numbering was changed by the State for the purp oses of trial “to make things logical and orderly” as four of the original counts had been dismissed. The verdicts f or each count correspond to the renumbering.5

Koch filed motions for judgment of acquittal both at the close of the State’s evidence and at the close of all the evidence—the trial court ov erruled both motions. The jury found Koch not guilty of Counts 1 and 3, but guilty of Count 2, “Possession of Methamphetamine Related Drug paraphernalia” (the on e-pot meth lab) with intent to use to produce methamphetamine. Because of Koch’s status as a prior and persistent offender, the trial court sentenced Koch and sentenced him to a term of seven years in the Missouri Department of Corrections with credit being given for all time se rved. This appeal followed. In his sole point, Koch contends the trial court e rred in overruling his motion for judgment of acquittal at the close of all the evide nce and entering judgment on the guilty verdict, because there was insufficient evidence to establis h beyond a reasonable doubt that he possessed the one-pot meth lab. The issue for our review is whether there was suff icient evidence that Koch possessed the one-pot meth lab to support his conviction. 

### Standard of Review In reviewing a challenge to the sufficiency of the evidence, this Court must determine whether sufficient evidence permits a reasonable ju ror to find guilt beyond a reasonable doubt.
State v. Belton , 153 S.W.3d 307, 309 (Mo. banc 2005). This inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reason able doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Bateman , 318 S.W.3d 681, 687 (Mo. banc 2010) (internal quo tations and citations omitted).6

We accept all evidence and reasonable inferences f avorable to the judgment, and disregard contrary evidence and inferences. State v. Ramsey , 358 S.W.3d 589, 590 (Mo.App. S.D. 2012). “However, we cannot supply missing evi dence or give the state the benefit of unreasonable, speculative, or forced inferences.” Id. 

### Analysis Koch was convicted of felony possession of methamp hetamine-related drug paraphernalia with intent to use to produce methamp hetamine. § 195.233. “Possession” is the central issue presented on this appeal. The State was required to show that Koch “possesse d drug paraphernalia, was aware of its presence, and possessed it with intent to use [ it] to manufacture a controlled substance.” State
v. Mickle , 164 S.W.3d 33, 47 (Mo.App. W.D. 2005); § 195.010( 34). 4 “Possession” does not require exclusive control; rather, ‘“[p]ossession may . . . be sole or joint. If one person alone has possession of a substance[,] possession is sole. I f two or more persons share possession of a substance, possession is joint.”’ State v. Watson , 290 S.W.3d 103, 106 (Mo.App. S.D. 2009) (quoting § 195.010(34)). The fact that persons oth er than Koch had access to the area where the contraband was found does not preclude a finding of possession. State v. Keller , 870 S.W.2d 255, 260 (Mo.App. W.D. 1994). A person has actual possession of contraband where the contraband is on his person or within easy reach and convenient control. § 195.01 0(34); State v. McLane , 136 S.W.3d 170, 173 (Mo.App. S.D. 2004). The parties agree that Ko ch did not have actual possession of the one-pot meth lab.

4 References to section 195.010(34) are to RSMo Cum. Supp. 2011.7

“Where actual possession is not present, the State carries the burden of proving constructive possession coupled with facts that but tress the inference of possession.” State v.
Power , 281 S.W.3d 843, 848 (Mo.App. E.D. 2009). A perso n has constructive possession of contraband where that person “has the power and the intention at a given time to exercise dominion or control over the substance either direc tly or through another person or persons[.]” § 195.010(34). “To demonstrate constructive posses sion, the State must show at a minimum the defendant had access to and control over the premis es where the substance was found.” Power , 281 S.W.3d at 848. In the record before us, there was evidence of join t control over the premises where the one-pot meth lab was found. “Where there is eviden ce of joint control over the area where a controlled substance is found, the State must prese nt additional evidence that connects the defendant to the controlled substance.” Id. We examine the totality of the circumstances to determine whether sufficient evidence of additional incriminating circumstances has been shown. Id. In so doing, “[t]here is . . . no precise formula [.] [W]e look to the facts of each case in determining if the totality of the circumstances supports the finding of possession.” State v.
Kerns , 389 S.W.3d 244, 248 (Mo.App. S.D. 2012).
Mickle provides categories of additional incriminating ci rcumstances to consider in the totality of the circumstances sufficient to support possession, including: (1) being in close proximity to the item seized; (2 ) presence of a chemical odor associated with the manufacture of methamphetamine; (3) giving false statements to police; (4) defendant’s personal belongings foun d with the items or substance; (5) routine access to the place where the item is f ound; and (6) the presence of a gun[.] 164 S.W.3d at 43-44 (internal citations omitted). While we review this case on its own unique facts, Kerns , 389 S.W.3d at 248, we nevertheless note that fact s from these categories are largely8

missing here: (1) Koch was not in close proximity to the one-pot meth lab—he was discovered in the bathroom of Swihart’s residence, and the one -pot meth lab was discovered in the living room; (2) there was no evidence of a chemical odor associated with the manufacture of methamphetamine in Swihart’s residence; (3) there w as no evidence that Koch gave false statements to police; (4) Koch’s personal belonging s were not found commingled with the onepot meth lab; (5) Koch was at Swihart’s premises in termittently over the course of one day and the very early hours of the next morning, he did no t own the premises, did not have the right to exclude others from the premises, and he himself wa s excluded from the premises earlier in the day by Swihart; and (6) a firearm was not discovere d in close proximity to the one-pot meth lab. Under these circumstances, the mere fact that the one-pot meth lab was in plain view in the living room (along with a bag containing metham phetamine ingredients) does not support the inference that Koch possessed them. There was testimony that Koch had ingested methamph etamine or some other heavy narcotic, but there is no evidence to distinguish K och’s consciousness of guilt from ingestion of an illegal drug, distinguished from possible consci ousness of guilt connected to possession of the one-pot meth lab. See State v. Franco-Amador , 83 S.W.3d 555, 558-59 (Mo.App. W.D. 2002). Finally, while two firearms were found in a vent in Swihart’s “middle bedroom,” there was no evidence connecting Koch to this room. Ther e was no testimony that Koch had been in the bedroom, or had access to it. Evidence of suspicious circumstances are insuffici ent to meet the State’s burden to adduce additional evidence tying a defendant to con traband in a joint possession case—the State was required to produce evidence which, if believed , probatively furthered the reasonable9

inference that defendant had possession of the one-pot meth lab. See Ramsey , 358 S.W.3d at 591-92. That evidence is lacking under the facts o f this case. This conclusion is consistent with other decisions by this Court. In State v. Politte , 391 S.W.3d 537, 358 (Mo.App. S.D. 2013), we concluded t he evidence was insufficient to connect defendant to a large quantity of marijuana found in a garage attached to a home, which defendant occupied, even where defendant had routine access t o the living room and bedroom of the home where marijuana was found; defendant was in close p roximity to paraphernalia and marijuana found on the living room table; and defendant admit ted to police that he was aware of drugs on the premises. We concluded: The record may indicate [defendant]’s familiarity with drugs and [his roommate]’s illegal activities, and [defendant]’s k nowledge that drugs were on the premises, but [this] does not justify an infere nce that he possessed or controlled the felonious quantities of compressed m arijuana. Even if [defendant] had routine access to the living room, the evidence showed many others did as well, and there was no showing that [defendant] use d the detached garage.
Id. at 540 (internal quotation and citations omitted). Similarly, in Ramsey , 358 S.W.3d at 591-92, where a man and a woman sha red a house and slept in the same bedroom where marijuana was f ound, and the State failed to offer evidence that “either enjoyed exclusive or even superior con trol of the room, or to whom the hidden drugs belonged[,]” we found there was insufficient eviden ce of possession to support defendant’s conviction.
In State v. Moses , 265 S.W.3d 863, 865 (Mo.App. E.D. 2008), police f ound in the kitchen of a mobile home, rocks of cocaine and a pi pe that was still warm; in the living room, a bag of marijuana, a box of bullets, and a copper fi lament; and in a bedroom, a sawed off .22 rifle and some of defendant’s personal items in plain vie w, including mail addressed to him at the address of the mobile home and his identification. Defendant, at the time the officers arrived,10

fled the scene and escaped. The court there found that this evidence was insufficient to support an inference that defendant possessed the cocaine, suggesting that while the evidence may support the inference that defendant was aware of t he cocaine, the evidence did not indicate that defendant exercised dominion or control over the co caine. The State argues that it met its burden to produce additional evidence of possession, pointing to the following evidence: (1) the meth l ab was in plain view in Swihart’s living room, and ingredients used in the production of methamphe tamine were found in a duffle bag near the bottle and in a backpack in a back bedroom; 5 (2) Koch was present several times on April 11, 2012, and was present when the meth lab was discove red; (3) when police arrived and ordered the occupants of the home to come out, Koch secrete d himself in the bathroom; (4) at the time police discovered him, Koch appeared to be under th e influence of methamphetamines or heavy narcotics. Using this evidence, the State then argues State v. Keller , 870 S.W.2d 255 (Mo.App. W.D. 1994), demonstrates this was sufficient to sup port Koch’s conviction. In Keller , contraband was found in a hotel room registered to defendant in defendant’s name. There was evidence of only one other person in the hotel room during the relevant time period. There was also specific evidence that the amount of drugs in the room was not typical of that used for personal consumption, but more likely used for dist ribution. Specifically, the police found approximately 87 grams of cocaine (worth $16,000 on the street); scales; baking soda; gram baggies (commonly used in distribution); and $1,400 in a safety deposit box. When police entered the hotel room, Keller ran to the bathroom area. Id. at 257.

5 The State attempts to suggest that a backpack cont aining contraband found in a “middle bedroom” suppo rts the conclusion that Koch possessed the one-pot meth lab in the living room. However, there is no evidence specifically connecting Koch to this backpack—no one testified t hat the backpack was Koch’s, that Koch knew of the backpack, or that Koch had access to that bedroom. See Politte , 391 S.W.3d at 539-40.11

Keller is not controlling based on the record before us. Here, there was joint control over the area and the contraband was in plain view. How ever, defendant in Keller , had far superior control and dominion over the premises—the hotel wa s registered to defendant alone (and he likewise had the right to exclude others), and ther e was evidence of only one other person who was in the room with defendant. Here, the premises in question belonged to Swihart, not Koch. In addition, unlike Keller , Koch did not have the ability to exclude others a nd was apparently excluded himself from the premises by Swihart earli er in the day. Further, there was evidence that numerous individuals had access to Swihart’s r esidence at various times during April 11 and 12, 2012—Swihart, Dent, Rushing, Kellis, and Koch. During this time, Koch was present only intermittently. See Ramsey , 358 S.W.3d at 592. Further, Koch’s location in the bathroom, unlike t he retreat in Keller , is lacking in sufficient evidence. Unlike the defendant in Keller , Koch appeared to be high on methamphetamines or some other heavy narcotic. “Fl ight does not establish a defendant’s guilty knowledge of a particular crime in comparison to other possib le charges and is alone insufficient to support a conviction.” Franco-Amador , 83 S.W.3d at 558-59 (internal quotation and citation omitted) (emphasis added). The State fails to direct us to evidence supporting the inference that such consciousness of guilt was rela ted to Koch’s concurrent or former possession of methamphetamine drug paraphernalia with the inte nt to use as distinguished from consciousness of guilt stemming from mere knowledge of the meth lab or drugs, or recent ingestion of an illegal drug. See Moses , 265 S.W.3d at 866. That Koch appeared to be high on methamphetamine o r another heavy narcotic does not, in combination with the other facts before us, suff iciently show that Koch possessed and intended to use the methamphetamine paraphernalia to manufacture methamphetamine.12

§ 195.233. This evidence may support the inference that Koch ingested methamphetamine; however, the State was required to prove that Koch possessed the one-pot meth lab with intent to use it to produce methamphetamine. 6 Under the totality of the circumstances on the rec ord before us, we find there was insufficient evidence to show that Koch possessed t he one-pot meth lab with intent to use it to manufacture methamphetamine under section 195.233. The judgment of the trial court is reversed and remanded with instructions to enter a judgment for acquittal of Koch for the charge of unlawful possession of drug paraphernalia with i ntent to use under section 195.233.

WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR JEFFREY W. BATES, J. - Concurs DANIEL E. SCOTT, J. - Concurs in Separate Opinion

6 The evidence indicates that the one-pot meth lab h ad been “cooked out,” and that it was not clear whe n the lab had been used. The prosecutor explicitly stated: “We can concede that. We don’t know exactly when this bottle was put together. It might have been five days before or it might have been that day. But, it is there.” The evidence presented indicates that Koch was only on the premi ses intermittently on April 11, 2012, and the very early hours of April 12, 2012.

### STATE OF MISSOURI, )

) Respondent, ) ) vs. ) No. SD33054 ) KENNY DEAN KOCH, ) ) Appellant. ) CONCURRING OPINION Of necessity, “our opinions often cite facts that w e cannot consider in deciding if any evidence supports the judgment” because outs ide readers may need context to understand a case. Smith v. Great American Assur. Co. , 436 S.W.3d 700, 705 (Mo.App. 2014). Even so, we have tunnel vision in checking sufficiency of evidence, considering only what aids the respondent and ignor ing all else because “if evidence does support the judgment, no amount of counter-proof e rases it.” Id

. This case so viewed, like others cited in the princ ipal opinion, “presents circumstances that might indicate that the defendan t had knowledge of the [one-pot meth lab], but no circumstances that could indicate that the defendant exercised2



### control over [it]. Evidence of both is required to support a conviction.” State v. Politte , 391 S.W.3d 537, 540 (Mo.App. 2013). I concur.

DANIEL E. SCOTT, J. – CONCURRING OPINION AUTHOR