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State v. Altaffer6/29/2000
Defendant Rhonda Altaffer was found guilty by a jury of the class C felony of possession of a controlled substance (methamphetamine), section 195.202, and sentenced to a term of three years with the Missouri Department of Corrections. She appeals. She charges an instructional error mandates reversal. She also urges we review some of the prosecutor's closing argument remarks under the plain error standard. We affirm.
FACTS
Defendant does not challenge the sufficiency of the evidence, which may be stated briefly. Sergeant Bob Frazee, a Springfield policeman, arrested Defendant for driving while intoxicated on February 28, 1998. During an inventory search of Defendant's car, Frazee found two syringes and a spoon inside a "book bag" which was lying on the front floor board. Frazee asked Defendant why she had the two syringes in her possession, concerned she might be a diabetic or have some other medical condition. Defendant denied she had any medical need for the syringes. Shortly afterward, Defendant told Frazee: "That's my bag before I went to prison."
Defendant was taken to a Springfield jail where officer Jennifer Eakes searched Defendant and found a Camel cigarette box in the inside pocket of Defendant's leather jacket. The cigarette box contained a powdered substance later determined to be methamphetamine. At trial, Defendant testified the jacket was hers, but she did not know there was methamphetamine in the inner pocket.
DISCUSSION AND ANALYSIS
Point I: Instructional Error
Defendant's first point maintains the trial court erred in its choice of a verdict- directing instruction. The court submitted instruction No. 5, patterned after MAI-CR3d 325.02, and rejected Defendant's proffer of instruction "A." The two instructions are alike, except at the end of instruction A, Defendant added the section 562.016.3 definition of "knowingly," as follows:
"3. A person [knew, or] 'acts knowingly', or with knowledge,
"(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist, or
"(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result."
Defendant insists that by not having the statutory definition of "knowingly" as part of instruction 5, it did "not conform to the substantive law, and lowers the State's burden of proof by not informing the jury how it was to decide whether [Defendant's] possession of methamphetamine was knowing." (Emphasis added.)
Defendant concedes in her brief that adding a definition of "knowingly" or "knew" to a MAI-CR3d 325.02 instruction is directly contrary to the Notes on Use for that instruction. Even so, Defendant insists, inter alia, that the cases of State v. Anding, 752 S.W.2d 59 (Mo.banc 1988), State v. Carson, 941 S.W.2d 518 (Mo.banc 1997), and State v. Hooker, 791 S.W.2d 934 (Mo.App. 1990), support her argument that departure from MAI-CR3d 325.02 and its Notes on Use and inclusion of the statutory definition of "knowingly" are the only ways the instructions could conform with the "substantive law." We disagree.
First, Defendant tries to develop her argument in conclusory fashion without looking at the substantive law under section 195.202. In a section 195.202 drug possession case the state must present evidence from which a jury can find that the accused (1) consciously and intentionally possessed the substance, either actually or constructively, and (2) was aware of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo.banc 1992). Both e
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