# SUPREME COURT OF MISSOURI en banc
STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC 94959 ) ADRIANO RAPHAEL CLARK, SR., ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY The Honorable Donald C. Cheever, Judge Opinion issued June 28, 2016 Adriano Clark appeals his conviction of the class C felony of possession of a
controlled substance. Section 195. 02 0

. 1 Following a bench trial, Mr. Clark was found guilty and sentenced to ten years in prison as a prior and persistent offender . On appeal, Mr. Clark contends the evidence was insufficient to support his conviction. The state failed to prove beyond a reaso nable doubt that Mr. Clark , with knowledge of the presence
and nature of the substance , had posses s ion o f two closed pouches containing methamphetamin e. Accordingly, this Court reverse s the trial court’s judgment and
remands the case to the circuit court with instructions to discharge Mr. Clark.

1 All statutory references are to RSMo Supp. 2011 , unless otherwise indicated.2 Factual and Procedural Background On February 6, 2013, Off icer Jeffrey Ford responded to a 911 hang

- up call from a
residence in Marshfield. The call had been reported as an assault in progress. Upon his arrival at the residence, Officer Ford made contact with A.D. , who appeared to have been
assaulted. When Officer Ford asked her if anyone else was present in the residence, A.D.
motioned with her hea d toward the rear of the house. Sergeant Richard Neal arrived at the residence shortly thereafter. During the investigation of the residence, Officer Ford found Adrian o Clark sitting
on the side of a bed in the residence’s small east bedroom , which also appeared to be the residence’s main living area

. Officer Ford and Sergeant Neal observed l arge men’s
tennis shoes next to the bed . A cell phone and a closed black velvet pouch were on a nightstand that was right next to Mr. Clark

. The top of the nightstand was cluttered with

n umerous other items, including a desk lamp, two television remote control s , a coaster, a mouse pad, a used ashtray, a bottle of medication , and a glass filled with pens and other
items

. A larger closed brown pouch was hangin g on the wall near photographs of A.D.
and Mr. Clark. T he contents of the two pouches were not visible to the officers , and they did not observe any drugs in plain sight. As the officers entered the bedroom, Mr. Clark stood up and moved toward the
foot of the bed. Officer Ford handcuffed and arrested Mr. Clark and then searched him

. 2

T he officers did not find any drugs on him

. He was carrying $560 , consisting of five

2 The record does not reveal why Mr. Clark was arrested.3 $100 bills and three $20 bills

. Before being removed from the residence, Mr. Clark requested his belongings from the west bedroom of the residence. He stated that all the belongings in the west bedroom were his. According to Officer Ford , t he officers later
found “numerous clothes, a toolbox, [and] things of that nature” in the wes t bedroom.
After Mr. Clark was placed in a patrol car , A.D. gave the officers written consent

to search the residence , which she said was her residence

. She said Mr. Clark was her boyfriend. Detective Joseph Taylor, who obtained A.D.’s consent for the search, testified
that A.D was holding a cell phone when he spoke to her. During their search of the east bedroom , t he officers opened the two pouches and
found plastic bags with crystalline substances that appeared to be methamphe tamine , scales , and numerous items of drug paraphernalia

. The state highway patrol crime laboratory later confirmed that the crystalline substances were methamphetamine. Police did not find Mr. Clark’s wallet, any identification with Mr. Clark’s name on it , or any other items identified as his property in the east bedroom.
Mr. Clark w as subsequently charged with the class C felony of possession of a controlled substance, punishable as a class A felony due to his status as a prior and persistent offender

. Following a bench trial, t he trial court found him guilty as a prior and persistent offender and sentenced him to ten year s in prison. Mr. Clark appeal s ,

c ontending there was insufficient evidence to prove beyond a reasonable doubt that he
had knowledge and control over the drugs in the pouches

. This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, sec. 10.4 Standard of Review

“ To determine whether the evidence presented was sufficient to support a
convictio n and to withstand a motion for judgment of acquittal, this Court does not weigh the evidence but rather accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evid ence and
inferences.” State v. Ess , 453 S.W.3d 196, 206 (Mo. banc 2015) (internal quotation s omitted)

. This Court, however, “may not supply missing evidence, or give the [ s tate] the
benef it of unreasonable, speculative or forced inferences.” State v. Wh alen , 49 S.W.3d 181, 184 (Mo. banc 2001) (internal quotation s omitted)

. Evidence is sufficient to support
a conviction whe n “ there is sufficient evidence from which a reasonable [fact

- finder] might have found the defendant guilty beyond a reasonable doubt.” State v. Coleman , 463 S.W.3d 353, 354 (Mo. banc 2015) ; see also Musacchio v. United States

. , 136 S. Ct. 709, 715 (2016)

. Insufficient Evidence to Support the Conviction
Mr. Clark contends that the state did not prove beyond a reasonable doubt that he possessed the methamphetamine found in the pouches in the residence’s east bedroom.
Mr. Clark asserts that the state failed t o prove beyond a reasonable doubt that he “knew about the drugs” or “that he exercised control over them ” because the “drugs were found in closed pouches and there was no further evidence presented connecting Mr. Clark to the drugs.”5 Section 195. 02 0 make s it “unlawful for any person to possess or have under his
control a controlled substance.” “[ P ]ossessed” or “possessing a controlled substance” is defined by the legislature as: [A] person, with the knowledge of the presence and nature of a substance , ha s 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. Possession may also be sole or joint. If one person alone has possession of a substance possess i on is sole. If two or more persons share possession of a substance, possession is joint.
Section 19 5 .010(34) (e mphasis added)

. “ When interpreting a statute, the primary goal is to give effect to legislative intent as reflected in the plain language of the statu t e.” Stiers v. Dir. of Revenue , 477 S.W.3d 611, 615 (Mo. banc 2016). By the plain language of the statute, a person must have knowledge of the presence and nature of the substance to have actual or constructive possession. Section 195 .010(34). In accordance with this statutory definition, this Court has long held that possession itself requires a defendant to have “conscious and intentional possession of the [ controlled ] substance , either actual or constructive[.]”

. State v. Zetina

- Torres , 482 S.W. 3d 801 , 807 (Mo. banc 2016) (internal quotations omitted)

. “Possession without knowledge of such possession is not possession in the legal sense of the word. Knowledge of the existence of the object is essential to physical control thereof with the inten t to exercise such control and such knowledge must6 necessarily precede the intent to exercise or the exercise of such control.” State v. Burns , 457 S.W.2d 721, 724 (Mo. 1970) ( e mphasis added) (internal citations omitted)

. 3

3 The interpretation of section 195.010 in the concurring opinion conflicts with the language of the statute and more than 45 years of decisions from this Court. Section 195.010 reads: “[A] person, with the knowledge of the presence and nature of a substance , has actual or constructive possession of the substance.” (Emphasis added). The requirement of “ k nowledge” precedes and modifies the element of possession

. A s written in the statute , “knowledg e” informs the element of “actual or constructive possession.” This statutory language and its structure have been recognized by this Court in its prior jurisprudence, which holds that the element “ actual possession ” requires conscious knowledge and inten tional possession of the controlled substance

. See Zetina

Torres , 482 S.W.3d at 807 ; Stover , 388 S.W.3d at 146; Withrow , 8 S.W.3d at 80; Purlee , 839 S.W.2d a t 587; see also Burns , 457 S.W.2d at 724 (interpreting section 195.020). The concurring opini on, in fact, favorably cit es the holding in Zetina

- Torres for the proposition that “to prove possession of a controlled substance, the state must show [1] conscious and intentional possession of the substance , either actual or constructive, and [2] awareness of the presence and nature of the substance.” (Emphasis added)

. Accordingly, as stated by the concurring opinion, the element “possession” requires “conscious and intentional possession of the substance,” regardless of whether the possession is actual possession or constructive possession. Yet, in direct contra diction of the law it purports to rely on, the concurring opinion states th a t “a person can possess a substance without being ‘conscious’ of its ‘existence’ or ‘nature.’” Based on this m isstatement of law, the concurring opinion erroneously draws the conclusion that Mr. Clark “possessed” the contents of the pouches, i.e. the methamphetamine, even though, as the concurring opinion agrees, the evidence was not sufficient to establish he was conscious that the pouches contained methamphetamine. Because t he analysis and conclusions drawn by the concurring opinion are diametrically opposed to the holding in Zetina

- Torres , the concurring opinion would require Zetina

- Torres to be overruled , despite being handed down by this Court on March 1, 2016. Moreover, the interpretation of section 195.202 urged by the concurring opinion would lead to the absurd and unjust result that a person with no connection or intention to possess a controlled s ubstance would be legally guilty of actual possession. Under the concurring opinion’s analysis of section 195.010, if Jane Doe sits next to John Doe and puts her purse between them with a clear plastic bagg ie of methamphetamine visible on the top of the c ontents of her purse, which John sees and recognizes as methamphetamine, John would be guilty of the crime of possession of a controlled substance because he would have : (1) actual possession of the controlled substance because it was within his easy reach and convenient control , and (2) knowledge of the presence and nature of the methamphetamine. This Court’s prior interpretation of the7 A person has actual possession of a controlled substance if the person, “with the knowledge of the presence and nature of the substance,” has the substance either “on his person or within easy reach and c onvenient control.” Section 195 .010(34). Here, t he officers did not find any dr ugs on Mr. Clark when they patted him down following his

arrest . Moreover, because the drugs were concealed in closed pouche s, mere proximity to the drugs does not create a reasonable inference that Mr. Clark had knowledge of the presence and nature of th e methamphetamine in the pouches. See Whalen , 49 S.W.3d at
184 ; see also State v. Withrow , 8 S.W.3d 75, 80 (Mo. banc 1999) (finding a defendant did not have actual possession of methamphetamine found in a bedroom when the police had
observed the defendant exiting the bedroom)

. T he statutory definition of “possessing a controlled substance” requires knowledge of the presence and nature of the substance as a condition precedent to a person’s actual or constructive possession of the controlled
substance. Se ction 19 5 .010(34). Plainly stated, a person cannot control a substance if he statute to hold that “actual possession” requires conscious knowledge and intentional possession of the controlled subst ance avoids thi s absurd result. S ee McCollum v. Dir. of Revenue , 906 S.W.2d 368, 369 (Mo. banc 1995) (a statute “should be interpreted to avoid absurd results”). Additionally, the legislature has amended section 195.010 several times since this interpr etation of “actual possession” by the Court , but the legislature has not amended either the language or structure of this definition. Specifically , the definition of possessing a controlled substance was first included in section 195.010 in 1989. Section 195.010 has since been reenacted in 1998, 2001, and 2011, with no change in the language of the definition of possessing a controlled substance. This definition will also not be modified when the new criminal code becomes effective on January 1, 2017. 2014 Mo. Legis. Serv. S.B. 491. Accordingly, “w here a court of last resort construes a statute, and that statute is afterwards re

- enacted, or continued in force, without any change in its terms, it is presumed that the legislature adopted the construction given to it by the court.” State v. Grubb , 120 S.W.3d 737, 740 (Mo. banc 2003)

.8 or she is not conscious of its existence. Accordingly, Mr. Clark did not have “actual possession” of the two pouches. “Absent proof of actual possession, constructive possessi on may be shown when other facts buttress an inference of defendant’s knowledge of the presence of the
controlled substance.” State v. Purlee , 839 S.W.2d 584, 588 (Mo. banc 1992). The state, therefore, had the burden to prove that Mr. Clark constructivel y possessed the methamphetamine found in the closed pouches.
To have constructive possession of a controlled substance , a person must have
both “knowledge of the presence and nature of a substance” and “ 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 [

. ] ” Section 195.010(34). Proof of constructive possession requires: [A] t a minimum, evidence that the defendant had access to and control over the premis es where the [controlled substances] were found. Exclusive possession of the premises containing the [controlled substances] raises an inference of possession and control. When the accused shares control over the premises, as here, further evidence is ne eded to connect [the defendant] to the [ controlled substance s ]. The mere fact that a defendant is present on the premises where the [ controlled substances were found ] does not by itself make a submissible case. Moreover, proximity to the contraband alone fails to prove ownership. There must be some incriminating evidence implying that the defendant knew of the presence of the [ controlled substances ], and that the [ controlled substances ] were under his control. 4

4 In Withrow , the state claimed that the defendant was guilty of taking a substantial step toward the manufactur e of methamphetamine because he had possession of a bedroom and its locked closet, which contained a glass jar with a substance that was “indicative of the primary stage of methamphetamine production.” 8 S.W.3d at 77. The Court found that proof of “ actual or constructive possession of the materials being used t o manufa cture the controlled substance ” would be sufficient to convict. Id. at 80. As in9 Withrow , 8 S.W.3d at 80 ( i nternal quotatio ns and citations omitted ) ; s ee also State v.
Stover , 388 S.W.3d 138, 147 (Mo. banc 2012); Glover v. State , 225 S.W.3d 425, 428 (Mo. banc 2007)

. In other words, to prove beyond a reasonable doubt that a defendant who does not have exclusive control over the premises has constructive possession of a controlled substance, the state must present additional facts that “buttress the inference of the defendant’s requisite mental state.” Withrow , 8 S.W.3d at 80. Here, Mr. Clark did not have exclus ive control over the residence or the east
bedroom . A.D. was present at the residence when the police arrived . She told Detective Taylor that it was her residence and that Mr. Clark was her boyfriend. 5 T he officers
fou nd Mr. Clark’s clothes, a toolbox and other personal items in the west bedroom of the
residence

. Because the premises were shared, the state was required to present additional “incriminating evidence ” to support the inference that Mr. Clark had knowledge and control over the methamphetamine in the two closed pouches in the east bedroom

– additional facts that would “buttress the inference of the defendant’s requisite mental
state.” Id

. this case, this Court in Withrow based its analysis of “ constructive possession ” on section 195.010’s definition of “possessing a controlled substance” and prior case law related to a defendant’s possession of a controlled substance. Id. at 80

- 81. 5 The relationship of Mr. Clark as A.D.’s boyfriend does not give rise to a n inference that he had control over the drugs. Even “the status of husband and wife betwe en the persons found on the shared premises amidst the contraband” does not give rise to a n inference of joint control. State v. Bowyer , 693 S.W.2d 845 , 847 (Mo. App. 1985). “The more correct analysis sees no distinction between spouses and other cotenan ts of premises but directs inquiry only to whether or not the accused was in a position to exercise control over the drugs found on the premises.” State v. Lowe , 574 S.W.2d 515, 518 (Mo. App. 1978).10 The state presented the following evidence in its attempt to link Mr . Clark to the drugs found in the two closed pouches in the east bedroom : (1) Mr. Clark was sitting on
the side of the bed in the east bedroom next to the nightstand in close proximity to the

two pouches containing the methamphetamine ; ( 2 ) a large pair of men’s tennis shoes was by the side of the bed where he was seated ; (3) a cell phone was on the nightstand near Mr. Clark ; and ( 4 ) Mr. Clark had $560 on his person, consisting of five $100 bills and
three $20 bills

. The state asserts that Mr. Clark’s proxi mity to the pouches where the drugs were
found , along with the above additional incriminating evidence , w as sufficient to prove
that he constructively possessed the methamphetamine. Although Mr. Clark was found sitting on the bed near the two closed pouch es that contained the drugs , neither “ [ t ] he mere fact that a defendant is present on the premises” nor a defendant’s “proximity to the
contraband alone ” proves constructive possession. Id

. Withrow , a case with facts similar to those presented here , provides guidance on this point . In that case, while the police had a suspected drug house under surveillance
for a two

- day period, the police observed approximately 30 persons coming and going
from the house. T hey observed the defendant ’s car parked in front of a house at least
twice

. Id. at 77. T he defendant enter ed and exit ed the house five or six time s during this period of time

. Id. When officers searched the house, the officers found the defendant leaving a bedroom that “emitted a solvent

- like odor, commonly associated with th e production of methamphetamine

. ” Id. This bedroom contained weapons and numerous items used to manufacture methamphetamine , including ingredients and a milky11 substance that was the primary stage of methamphetamine product ion in a locked closet

. Id. A letter addressed to the defendant at a different address was found in another room
in the house that also contained drug paraphernalia

. Id. This Court held that “ [ e ] ven viewed in a deferential light [,]

. . . [n]othing beyo nd being present in the room truly

connect [ed] the defendant to the manufacturing apparatus ” and that the defendant’s presence in the room that contained drugs did not support an inference of constructive possession. Id. at 81. Likewise, i n this case, because Mr. Clark had shared access to the east bedroom,
his presence in the east bedroom and his proximity to the closed pouches do not support a reasonable inference that he had knowledge and control over the drugs found in the pouches. See id. at 80. The state assert s , however, that the totality of the evidence presented , including the presence of men’s shoes and a cell phone near the drugs and
Mr. Clark’s possession of $560 , were sufficient to prove that he constructively possessed
the methamphetamine.
T he state is correct that the “presence of a defendant’s personal belongings in close proximity to the drugs may support an inference that he possessed the drug s
. ”
Glover , 225 S. W.3d at 428 . But , in th is case, such evidence was not suff icient

. De tective Taylor testified that he believed the cell phone on the night stand near the pouches was Mr. Clark’s because he thought A.D. was holding a cell phone when he spoke to her

. On this evidence, the officer was merely speculat in g that th e cell phone belonged

to Mr. Clark

. Speculative inferences, however, may not be used to support a verdict.
Whalen , 49 S.W.3d at 184. For example, i n a similar case, an open manicure case that12 contained a small baggie of methamphetamine could not be infer red to belong to a

woma n who shared her bedroom with her ex
- husband when “the [s] tate neither presented any evidence showing to whom the manicure case belonged nor identified any characteristics of the manicure case indicating whether it belonged to a man or a woman.” State v . Tomes , 329 S.W .3d 400, 403 (Mo. App. 2010). The defendant’s
shar ing of the bedroom and dresser where the drugs were found was not alone sufficient to prove that she constructively possessed the methamphetamine. Id. at 404. A s in
T

omes , the state did not present evidence that supports a reasonable inference that the cell phone found near the methamphetamine belon ged to Mr. Clark. See id. at 403

- 04. Accordingly , t his Court cannot give the state the benefit of the speculative inference that the cell phone belonged to Mr. Clark. See Whalen , 49 S.W.3d at 184. Likewise, e ven if it w ere reasonable to infer that the men’s shoes , which were
found near Mr. Clark and in close proximity to the two closed pouches containing the
metha mphetamine, belonged to Mr. C lark , a single pair of his shoes found near him as he

was sitting on the bed was insufficient to infer the drugs were his . A s discussed above,
Mr. Clark’s mere presence in proximity to illegal drugs does not in itself establish his knowledge or control over the closed pouches containing the methamphetamine

. Withrow , 8 S.W.3d at 80. The fact that his shoes were near him does not establish his knowledge or control over the drugs.
The c ases in which the proximity or co mmingling of a defendant’s personal belongings supported an inference of the defendant’s awareness and control of the drugs have very different facts

. I n State v. Cline , 808 S.W.2d 822, 823

- 24 (Mo. banc 1991),13 methamphetamine was found in a dresser in a b edroom shared by the defendant and his girlfriend. The dresser contained only men’s clothing , and t he defendant was the only
male living in the household

. Id. This evidence was sufficient to support an infer ence that the defendant had “exclusive control over ” the dresser where the methamphetamine
was found. Id. In Stover , a defendant’s newly purchased watch was found in a gift bag next to a suitcase containing a large amount of PCP in the trunk of a rental car shared with another pas senger. 388 S.W.3d at 144

- 45, 148. This Court held that , because the defendant was the named customer on the rental agreement as well as the driver of the vehicle, it was reasonable for the jury to infer that the defendant “had easy access to the
trunk w here the drugs were found , ” and the proximity of his watch to the drugs

“ support[ed] the inference that [the defendant] had knowledge and control of the drugs.”
Id. at 148

. Additionally, a n inference of a defendant’s knowledge and control of illegal dr ugs or drug paraphernalia was also supported whe n : (1) a defendant’s duffel bag was next to two bags of raw marijuana , Purlee , 839 S.W.2d at 588 ; ( 2 ) a defendant’s birth certificate found with methamphetamine locked in a safe under a desk in attic, State v . Richardson , 296 S.W.3d 21, 25 (Mo. App. 2009); and ( 3 ) a defendant’s walle t, driver’s license, and handgun and only male hygiene items and clothing were found in the master bedroom
and adjoining bathroom in a residence shared with two women and drugs were found in
the bathroo m , State v. Bacon , 156 S.W.3d 372, 378

- 79 (Mo. App. 2005)

. Unlike in these

cases , a single pair of Mr. Clark’s shoes next to where he was sitting in proximity to the two closed pouches containing drugs was not sufficient to suppor t the inference that14 Mr. Clark was either aware of or in control of the illegal drugs found in the two closed pouches

. The state further asserts that Mr. Clark’ s contemporaneous possession of $560 , along with the other evidence, created an inference that he had knowledge and control over the methamphetamine. The state cites State v. Jackson , 419 S.W.3d 850, 856

- 57 (Mo. App. 2013), as support for its contention that the money found on Mr. Clark is
i ncriminating evidence that would support a reasonable inference that he had knowledge and control of the drugs. In Jackson, the court of appeals held that “[t]he presence of large sums of money held in small denominations may be consistent with drug deali ng,” which may in turn be used to infer the defendant’s constructive possession of illegal drugs found in a residence

. Id. at 856. Here, Mr. Clark was in possession of a large sum of money , but that money was

not held in small denominations . Instead, he possess ed five $100 bills and three $20 bills, denominations that are not indicative of drug dealing. Because Mr. Clark’ s possession of $560 in five $100 bills and three $20 bills does not indicate that he was dealing drugs , it likewise does not support an inference that he had knowledge or control

over the methamphetamine found in the pouches. See Whalen , 49 S.W.3d at 184.
T he totality of the facts presented by the state , and the reasonable inferences
drawn from these facts , fail to s how that Mr. Clark had constructive possession over the methamphetamine concealed in the closed pouches

. Accordingly, n o rational trier of fact
could have found that the state proved beyond a reasonable doubt the essential elements of possession of a cont rolled substance. See Withrow , 8 S.W.3d at 81.15 Conclusion
T he trial c ourt erred in finding that there was sufficient evidence to prove beyond
a reasonable doubt that Mr. Clark , with knowledge of the presence and nature of the substance, had possess ion of the methamphetamine found in the two pouches in the east
bedroom. Although the state presented evidence that Mr. Clark had joint access to his girlfriend’s residence and its east bedroom where he was found , with his shoes, in close proximity to conceal ed methamphetamine , this evidence was insufficient to prove beyond
a reasonable doubt that he knew of the presence and nature of the drugs and the drugs
were under his control as necessary to prove either actual or constructive possession of the drugs . E v idence of a cell phone on the nightstand and Mr. Clark’s possession of $560 was not “additional incriminating evidence” necessary to create an infer ence that
Mr. Clark had knowledge and control over the illegal drugs

. Accordingly , t his Court

reverses the trial court’s judgment and remands the case to the circuit court with instructions to discharge Mr. Clark.

___________________________________ P ATRICIA B RECKENRI DGE , CHIEF JUSTICE
Stith, Draper and Teitelman, JJ., c oncur; Wilson, J., concurs in result in separate opinion filed; Fischer and Russell, JJ., concur in opinion of Wilson, J.

# SUPREME COURT OF MISSOURI en banc
STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC 94959 ) ADRIANO RAPHAEL CLARK, SR., ) ) Appellant. )

OPINION CONCURRING IN THE RESULT I concur in the result reached by the majority opinion, but not its reasoning. The
evidence in this case was sufficient to prove that Mr. Clark had actual possession of the two pouches and their content s , but it was not sufficient to prove that he had “knowledge of the presence and nature” of those contents, i.e., that he knew the pouches contained the
controlled substance methampheta mine

. Accordingly, I would reverse Clark’s conviction
on that basis. Section 195.010(34) provides that a person is in possession of a controlled substance if that person, “with the knowledge of the presence and nature of a substance, has actual or constructive possession o f the substance.” As a result, to “prove possession of a controlled substance, the state must show [1] conscious and intentional possession of the substance, either actual or constructive, and [2] awareness of the presenc e and nature2 of the substance.” State v. Zetina

- Torres , 482 S.W.3d 801, 807 (Mo. banc 2016) (quoting State v. Stover, 388 S.W.3d 138, 146

– 47 (Mo. banc 2012)). The verdict director approved by this Court for the crime of possession of a controlled substance reflects the same two statutory elements of possession and knowledge: If you find and believe from the evidence beyond a reasonable doubt that: First, that (on) (on or about) [ date ], in the (City) (County of) of _____________, State of Missouri, the defendant possessed [name of the controlled substance], and Second, that the defendan t ( knew ) (or) ( was aware ) of its presence and nature, Then you will find the defendant guilty of possessing a controlled substance.
MAI

- CR 3d 325.02 (2013) (emphasis added). As a result, it is clear that the statutory language, this Court’s precedents, and th e jury instruction quoted above uniformly require proof of two separate and distinct
elements for the crime of possession of a controlled substance: (1) possession of a
substance and (2) “knowledge of the presence and nature” of that substance . Des pite this uniformity, the majority opinion blur s this distinction by calling the latter a “condition precedent” to the former

. 1 Such confusion is not new

. See , e.g., Zetina

- Torres , 482

1 The flaw in the majority opinion ’s reasoning is encapsulated perfectly in the following : “Plainly stated, a person cannot control a substance if he or she is not conscious of its existence.” Slip Op. at 7. Because a person can possess a substance without being “conscious ” of its

“ existence ” or its “ nature, ” section 195.010(34) does not ma ke such possession a crime unless the state also proves that the defendant actually knew (or, in the language of the majority opinion, was “conscious” ) that the substance possessed was present and that it was a3 S.W.3d at 807 (“Absent proof of actual possession, constructive possession may be
shown when other facts buttr ess an inference of defendant’ s knowledge of the presence
of the controlled substance.” ) (quoting State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992)) . The majority opinion also adds to this confusion by repe ated reference to State v.
Withrow , 8 S.W.3d 75, 80 (Mo. banc 1999) , which inserts into the analysis the unrelated concept of “ownership

. ”
T he question in this case is not whether the evidence was sufficient to prove that Clark physically possessed the pou ches and their contents

. It was
. Instead, the question
is whether the same evidence establishing Clark ’s possess ion of the pouches and their

contents ( i.e., evidence that the pouches were within his easy reach and control) also was sufficient to prove Clark actually knew of the presence and nature of the contents of those pouches, i.e., that he actually knew the y contained methamphetamine. It was not, and
Clark’s conviction should be reversed on that basis. The majority opinion seemingly agrees with this conclusion, Slip Op. at 7 (“because the drugs were concealed in closed pouches, mere proximity to the drugs does not create a reasonable inference that Mr. Clark had knowledge of the presence and nature of the methamphetamine in the pouches ”), but hol ds that this constitutes a failure to prove the element of possession . In other words, t he majority opinion holds that the
evidence was not sufficient to prove that Clark possessed the two pouches and their

contents

– which were found next to the bed on w hich he was sitting when the officers

controlled substance. As a result, the princ iple stated in the majority opinion, i.e., that “a person cannot control a substance if he or she is not conscious of its existence,” merely restate s ( in part ) t he element of knowledge as defined in section 195.010(34).4 arrived

– even though s ection 195.010(34) provides that the element of possession may be proved by evidence that the substance was on the defendant ’ s “person” or “within easy
reach and convenient control” of the defend ant

. B ecause the evidence was sufficient for
a reasonable factfinder to believe that these pouches and their contents were within Clark’s “easy reach and convenient control,” 2 the majority opinion’s conclusion that the
evidence was in sufficient to prove t he element of possession is incorrect

. Two illustrations may be helpful. I magine that the pouches had been clear plastic bags or, more to the point, suppose the outside of the pouches had been emblazoned with
the words : “Methamphetamine Inside ! ” With the addition of such evidence, the majority opinion surely would hold that the conviction was supported by sufficient evidence . But this hypothetical new evidence has no logical relevance to the element of whether Clark possessed the pouches and the ir contents. Instead, its only relevance is to the element of knowledge, i.e., whether Clark had “knowledge of the presence and nature” o f the
contents of the pouches

. Because the addition of this hypothetical evidence surely would change the outcome of the majority opinion, it proves that the deficiency of the evidence actually presented in this case is that it fails to prove knowledge, not possession. On the other hand, imagine that the evidence of possession was strengthened by evidence that the pouche s were lying on the bed six inches from where Clark was sitting

2 Possession of the pouches in this case necessarily proves possession of their contents because the evidence shows both were within Clark’s “easy reach and convenient control.” As discussed below, however, even though this evidence reasonably supports the inference Clark knew of the presence and nature of the pouches, this evidence is not

– without more

– sufficient to prove Clark actually knew both that there was a substance inside the pouches and that this substance was methamphetamine.5 when the officers first saw him (rather than lying on, or hanging above, a table “a few feet” away). If the evidence actually presented in this case was insufficient to prove the element of p ossession, as the majority opinion holds, then the addition of this hypothetical evidence surely would cure that deficiency. If the majority opinion agreed,
then its holding would stand only for the modest proposition that the statutory definition
of actu al possession being “within easy reach and convenient control” of the defendant is met by distances of less than one foot but not by distances of “a few feet.” However, nothing in the majority opinion suggests that this hypoth etical evidence would change its result because the analysis in the majority opinion is not based upon any physical
limitations on the statutory phrase “within easy reach and control

. ” As above , therefore,
this hypothetical illustrates that the result reached in the majority opinion is driven by the
lack of evidence on the element of knowledge, not the element of possession. 3

3 Similarly, the discussio n of “joint possession” in the majority opinion sheds no light on whether the evidence actually presented in this case was sufficient to prove the element of possession. This is because section 195.010(34) makes it clear that guilt may be proved either th rough sole or joint possession. Instead, the significance of “joint possession” is whether evidence that proves the element of possession also is sufficient to prove the element of knowledge. When the evidence of possession is that the substance was not found on the defendant’s person but within the easy reach and convenient control of the defendant and another person (i.e., joint possession), then the inference needed for the element of knowledge is weakened and may not be reasonable without some additio nal evidence from which such knowledge may be inferred. This is the hypothetical offered in the majority opinion. There, the evidence is sufficient for a factfinder to believe John was in actual possession of a purse because it was sitting next to him wi thin his easy reach ( assuming Jane did not have the purse locked or otherwise secured from John in a way that w ould preclude finding the purse was within John’s “easy reach and convenient control”) . But then the majority opinion’s hypothetical adds the so rt of evidence that was wholly lacking in the trial of this case, i.e., evidence that John had actual knowledge of the presence and nature of a controlled substance in the purse. As a result, i f John w ere to be charged with possession of a controlled substance under such circumstances , the evidence posited in the majority opinion make s a submiss i ble case on both the possession and knowledge elements. It is not clear why the majority opinion finds this absurd , especially given6 To be sure, the two elements of this crime (i.e., posses sion and knowledge) are
related

. E vidence that is sufficient to prove the element of possession also may

– in some

cases

– be sufficient to support the inference needed for the second element, i.e., that the
defendant had knowledge of the presence and nature of the substance possessed. But this
will not be true in every case

. For example, evidence that the defendant was arrested
with a controlled substance in his hand or pocket will be sufficient to prove the element
of possession and

– without more

– normally will be sufficient to support the inference that the defendant knew of the presence and nature of the controlled substance he possessed. But possession need not be so intimate. U nder section 195.010(34) , the element of possession may be proved

– as it was in this case

– by evidence that the substance was “within easy reach and convenient control” of the defendant , even though it was not on the defendant’s “person

. ” In such cases, however, additional evidence may be needed
before the finder of fact will be allowed to infer the knowledge element, i.e., that the
defendant knew the nature and presence of the substance possessed . This will be so

that this Court affirmed the conviction in Zetina

- Torres on far less evidence

. But t he heavy reliance on Withrow throughout the majority opinion suggests that it tacitly assumes what Withrow expressly ( though mistakenly) stated, i.e., that the possession element is equivalent to “ownership

. ” Nothing in the plain language of section 195.010(34) supports that view. By the same token, the discussion of “constructive possession” in the majority opinion also adds nothing to the analysis of whether the evidence was sufficient to prove t he element of possession. When the substance is not found on the defendant’s person or within his easy reach and convenient control, the evidence still can be sufficient to prove the element of possession if it shows that the defendant had “the power and the intention at a given time to exercise dominion or control over the substance” located somewhere else. § 195.010(34). But , as discussed below, evidence showing a substance was constructively possessed may not be sufficient

– without more

– to support the inference required by the knowledge element.7 where

– as here

– the circumstances establishing the defendant’s actual possession of a substance simply do not reasonably support the inference that the defendant knew of the presence and nature of th e controlled substance he possessed. Finally, e ven when the defendant does not have actual possession of the substance , evidence can be sufficient to prove “constructive possession” of a substance if it shows
that the defendant had “the power and the int ention at a given time to exercise dominion or control over the substance either directly or through another person or persons[.]” § 195.010(34) . In those cases, however, evidence sufficient to establish the element of constructive possession likely will not be sufficient to support the inference required by the second element, i.e., that the defendant knew of the presence and nature of the
substance . This is so because, when the element of possession is proved by facts showing constructive possession, t he defendant’s relationship to the substance possessed
i s far more attenuated than when there is proof of actual possession (i.e., when a substance is found on the defendant’s person or within his easy reach and convenient control). W ithout more, such evi dence may well be insufficient to support a reasonable
inference that the defendant knew of the presence and nature of the controlled substance
he constructively possessed

. Here, t he evidence was sufficient to prove Clark possessed the pouches and their

co ntents because they were within his easy reach and convenient control when the
officers first observed him in the bedroom. T his same evidence was not sufficient to support the inference required by the knowledge element, however, because it provides
no reasonable basis from which to infer that Clark actually knew both that there was8 something in those pouches and that the “something” was methamphetamine

. Accordingly, I would reverse Clark’s conviction on that basis. 4

_____________________________

Paul C. Wilson, Judge

4 The state does not argue that the evidence was sufficient to establish possession in this way, but this likely is the result of prior decisions that vacillate between distinguishing the elements of poss ession and knowledge and conflating them as done here. In any event, sufficiency of the evidence is a question of law , and the state cannot establish points of law by omission, agreement , or confession of error. See, e.g., State v. Hardin , 429 S.W.3d 417 , 424 (Mo. banc 2014) (“The State conceded this point in its brief. Nevertheless, parties cannot stipulate to legal issues, and this Court is not bound by the Attorney General's confession of error.”); State v. Biddle , 599 S.W.2d 182, 199 (Mo. banc 1980) (“stipulations of litigants cannot be invoked to bind or circumscribe a court in its determination of questions of law”).