                       MISSOURI COURT OF APPEALS
                           WESTERN DISTRICT


 STATE OF MISSOURI,                           )
                                              )   WD81051
                    Respondent,               )
    v.                                        )   OPINION FILED:
                                              )
 GENA KEEL,                                   )   January 15, 2019
                                              )
                     Appellant.               )


               Appeal from the Circuit Court of Cole County, Missouri
                    Honorable Thomas Lloyd Sodergren, Judge

                                Before Division Two:
            Alok Ahuja, P.J., Thomas H. Newton, and Mark D. Pfeiffer, JJ.



         Ms. Gena Lee Keel appeals the conviction following a Cole County Circuit

Court bench trial of one class A misdemeanor count of the possession of drug

paraphernalia with intent to use, § 195.233, RSMo (2000).           The sentencing court

suspended execution of sentence on a 10-day jail term, with two years of unsupervised

probation. Ms. Keel challenges the sufficiency of the evidence and the admission of

testimony identifying residue on the digital scale that the arresting officer field -tested.

We reverse.
        Jefferson City Police Department Officer Thomas Whitener observed Ms. Keel

turn a corner in a Jeep without signaling in August 2016. 1 He activated the emergency

lights on his patrol car, and she pulled into a driveway to stop. When he ran her

information through central communications, Officer Whitener asked Ms. Keel if he

could search her vehicle. She agreed, and the officer found a digital scale in what he

characterized as a woman’s handbag behind the driver’s seat. According to the officer,

the bag also contained feminine hygiene products and “paperwork” with Ms. Keel’s

name on it. In his report, Officer Whitener noted that Ms. Keel had told him, when he

found the scale, that “her friend Jimmy left the scale in the vehicle.” The officer saw

a crystal substance on the scale that was consistent in appearance with

methamphetamine. Officer Whitener found no drugs or “ingestion devices” in the car

or on Ms. Keel’s person. Ms. Keel was charged by criminal information in October

2016 with one count of violation of section 195.233, for possession of “a digital scale,

which was drug paraphernalia, knowing of its presence and nature, with intent to use

it to test or analyze a controlled substance or an imitation controlled substance.”

        During the July 2017 bench trial, the only physical evidence introduced was the

digital scale; neither the scale nor the residue was apparently submitted to chemical

testing in a laboratory. Ms. Keel objected to the officer’s testimony about the nature

of the residue found on the scale based on his observation of it. She challenged it as

speculative and on the ground that the officer was not qualified to identify a chemical

compound. The officer was subjected to voir-dire examination to determine whether



1
 The sufficiency standard applicable here requires that we “accept as true all evidence tending to prove
guilt together with all reasonable inferences that support the verdict, and ignore all contrary evidence[]
and inferences.” State v. Gilmore, 537 S.W.3d 342, 344 (Mo. banc 2018) (citation omitted).

                                                    2
he was qualified to definitively identify a chemical compound, and he admitted that he

was not.    In response to the State’s challenge to defense counsel’s voir -dire question

about whether the officer could “to a reasonable degree of scientific certainty . . . look

at a crystal-like substance and determine, with certainty, the chemical components

within that crystal-like substance,” the trial court stated, “And it’s kind of—you’ve got

to admit, it’s kind of [an] absurd question, that he can look at something and know what

the chemical composition is.”          The court overruled any objection to the officer’s

testimony, however, indicating that its purpose was not to identify the substance but

rather to show that the officer had a suspicion about the substance and this led him to

proceed further with his investigation and to conduct a field test, which the officer then

described, explaining that he had been trained to conduct field tests of chemical

substances. 2

       Ms. Keel also objected to the officer’s testimony about the field -test result,

arguing that such tests “don’t meet a Frye/Daubert standard. There is no evidence that

that is—that that field test is in any way reasonably reliable within the scientific

community.” 3      The court overruled the objection without comment, and Officer

Whitener testified that the substance tested positive for the presence of amphetamine.

Ms. Keel submitted motions for judgment of acquittal at the close of the State’s

evidence and at the close of all the evidence. The trial court overruled both and found


2
 Officer Thomas Whitener had previously testified that he had been trained in identifying controlled
substances by the way they appear.
3
  “Frye” refers to the standard for the admissibility of expert testi mony set forth in Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923); it was applied in criminal cases in Missouri until the 2017
amendment of section 490.065 (effective August 28, 2017). With the amendment’s enactment, the
“Daubert” standard for the admissibility of expert testimony was extended to criminal cases; it is
derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).


                                                  3
Ms. Keel guilty. The court sentenced her in August 2017 as indicated above, and Ms.

Keel timely filed this appeal.

                                    Legal Analysis
      In the first point, Ms. Keel argues that the trial court erred in overruling the

motion for judgment of acquittal at the close of all the evidence in violation of her due

process rights because the evidence was insufficient “to establish that the digital scale

found in Ms. Keel’s vehicle was used in conjunction with a controlled substance.” She

contends that a field test is insufficient to establish that the substance found on the

scale was a controlled substance. The State argues that it was not required to prove

that the drug paraphernalia was used in conjunction with a controlled substance.

      When reviewing a trial court’s decision to overrule a motion for judgment of

acquittal at the close of the evidence, we determine “whether the evidence presented

was sufficient to support conviction.” State v. Gilmore, 537 S.W.3d 342, 344 (Mo.

banc 2018).

      [T]his Court does not weigh the evidence but rather accept[s] as true all
      the evidence tending to prove guilt together with all reasonable inferences
      that support the verdict, and ignore[s] all contrary evidence and
      inferences. The evidence is sufficient to support a conviction when there
      is sufficient evidence from which a reasonable [fact-finder] might have
      found the defendant guilty beyond a reasonable doubt. This Court may
      not supply missing evidence, or give the [State] the benefit of
      unreasonable, speculative or forced inferences.

Id. (citations omitted). To prove that Ms. Keel possessed “drug paraphernalia” with

intent to use, the State was required to prove beyond a reasonable doubt, under section

195.233, that she “possessed drug paraphernalia, was aware of its nature and presence,




                                            4
and possessed it with intent to use to” test or analyze a controlled substance. 4 State v.

Mickle, 164 S.W.3d 33, 47 (Mo. App. W.D. 2005). By challenging the sufficiency of

the State’s evidence in terms of the digital scale’s use in conjunction with a controlled

substance, Ms. Keel has, in effect, disputed that the scale constituted drug

paraphernalia. “Drug paraphernalia” is defined, among other matters, as equipment

used or intended for use in processing or preparing a controlled substance, wh ich would

encompass the testing or analyzing allegation against Ms. Keel. § 195.010(17). This

definition includes “[s]cales and balances used, intended for use, or designed for use

in weighing or measuring controlled substances or imitation controlled su bstances.” §

195.010(17)(e). To decide whether a particular object is drug paraphernalia, the courts:

        should consider, in addition to all other logically relevant factors, the
        following:

            (a) Statements by an owner or by anyone in control of the object
                concerning its use;

            (b) Prior convictions, if any, of an owner, or of anyone in control of
                the object, under any state or federal law relating to any
                controlled substance or imitation controlled substance;

            (c)   The proximity of the object, in time and space, to a direct
                  violation of sections 195.005 to 195.425;

            (d) The proximity of the object to controlled substances or
                imitation controlled substances;

            (e)   The existence of any residue of controlled substances or imitation
                  controlled substances on the object; . . .

* * *



4
  Section 195.233, RSMo. (2000) was transferred in 2014 to section 579.074, which did not take effect
until January 1, 2017, or after Ms. Keel was stopped by the police officer. In relevant part, section
195.233 states, “It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia
to . . . test [or] analyze . . . a controlled sub stance or an imitation controlled substance. . . .”

                                                    5
            (m) The existence and scope of legitimate uses for the object in
                the community; . . .

§ 195.010(17)(a)-(e), (m).

        A digital scale has legitimate uses. Thus, the State must present some additional

evidence, beyond the defendant’s possession of the item itself, that the defendant had

used, or intended to use, the item in conjunction with a controlled or imitation -

controlled substance.        A police officer’s testimony about observing a crystal-like

residue on the scale was the only evidence the State introduced to show that the scale

came within the drug-paraphernalia definition, so we believe that it had the burden of

proving beyond a reasonable doubt that the residue was a controlled or imitation-

controlled substance. Its evidence that the residue was methamphetamine was based

solely on the police officer’s visual examination of the substance and a field test. As

to the visual examination, the transcript is clear that the observations were admitted

only to explain the officer’s subsequent conduct. As to the field test, the transcript is

less clear, but the State’s brief explicitly concedes that the field-test results were not

admitted to prove the nature of the substance, but only to explain the officer’s actions.

The State failed to introduce sufficient evidence that the residue was a controlled or

imitation-controlled substance and thus that the digital scale actually was “drug

paraphernalia.” This point is granted, and disposes of the appeal. 5 Accordingly, we

reverse the conviction.




5
  We need not address point two, which challenges the police officer’s testimony that the residue on
the digital scale tested positive for amphetamine in that his testimony about the field test on which h e
relied is not admissible under either a Frye or Daubert standard.


                                                   6
                                     Conclusion

      Because the evidence was insufficient to prove that the residue on the digital

scale in Ms. Keel’s automobile was methamphetamine, we reverse the conviction.




                                               /s/ Thomas H. Newton
                                               Thomas H. Newton, Judge


Alok Ahuja, P.J., and Mark D. Pfeiffer, J. concur.




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