                 In the Missour Cour of Ap
                              ri   rt    ppeals
                                              s
                                      Western Distr
                                                  rict

STATE OF MISSO
             OURI,                           )
                                Responden
                                R        nt, )
v.                                           )               WD76769
                                             )               FILED: J
                                                                    June 17, 2
                                                                             2014
     RLY PAUL,
KIMBER       ,                               )
                                  Appellan
                                         nt. )

       APPEAL FROM TH CIRCU COUR OF CLINTON COUNTY
       A      F     HE      UIT      RT
            THE HONORA
              H      ABLE PAUL T. LUCKE
                             L        ENBILL, JR., JUDGE

       BEFORE DIV
                VISION FOU : JAMES E. WELS , CHIEF J UDGE PR
                         UR      S       SH                RESIDING,
           VICTO C. HOW
               OR       WARD AND LISA WHIT HARDW
                                         TE      WICK, JUDGGES

       Following a bench trial, Kimberly Paul was co
       F                      ,          P         onvicted of possessing the contro
                                                             f                     olled

substance of synthetic marijua
                             ana, a misd        violation of Section 195.202.1 Th
                                       demeanor v                               he

circuit co senten
         ourt   nced her to forty-eight hours in the Clinton C
                                                   e         County Jail. On appea
                                                                                 al,

Paul con
       ntends the State failed to prove th she had knowledg of the na
                             d           hat     d        ge        ature of the

controlle substanc For rea
        ed       ce.     asons expla
                                   ained herein we affirm
                                              n,        m.




                             FAC
                               CTUAL AND PROCEDURA HISTORY
                                                 AL




1
 All statut
          tory reference are to the Revised Statu
                       es                       utes of Misso 2000, as u
                                                            ouri       updated by th Cumulative
                                                                                   he         e
Suppleme 2013, unle otherwise indicated.
          ent          ess         e
        On November 22, 2011, Chief Glen Garton and Officer Dennis Banks of the

Lathrop police department, went to Paul's residence in connection with an unrelated

matter. Chief Garton knocked on the door of Paul's residence and identified himself.

Paul opened the door and invited the officers in. While inside, Chief Garton observed

what appeared to be the burnt end of a marijuana cigarette in an ashtray on Paul's

kitchen table. Chief Garton seized the cigarette, which was later determined by

laboratory analysis to contain .03 grams of synthetic cannabinoid.

        The State subsequently charged Paul with the class A misdemeanor of

possession of a controlled substance in violation of Section 195.202, alleging that "on or

about November 22, 2011 . . . the defendant possessed a synthetic cannabinoid

(synthetic marijuana), . . . knowing of its presence and nature." Following a bench trial,

the circuit court denied Paul's motion for judgment of acquittal and took the case under

advisement. On August 6, 2013, the court entered its final judgment and sentence,

finding Paul guilty of possession of a controlled substance and sentencing her to forty-

eight hours in jail.2 Paul appeals.

                                         STANDARD OF REVIEW

        Paul's point on appeal challenges the sufficiency of the evidence supporting her

conviction. In reviewing the sufficiency of the evidence in a court-tried criminal case, we

apply the same standard as in a jury-tried case. State v. Sladek, 835 S.W.2d 308, 310

(Mo. banc 1992). Our role is limited to determining whether the State presented

sufficient evidence from which a trier of fact could have reasonably found the defendant

guilty beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc

2
  The circuit court's final judgment was entered as a result of this Court's dismissal of Paul's previous
appeal for lack of a final judgment. State v. Paul, 401 S.W.3d 591 (Mo. App. 2013).


                                                      2
2002). We consider the evidence and inferences in the light most favorable to the

verdict, disregarding all contrary evidence and inferences. Id. at 407–08.

                                         ANALYSIS

       In her sole point on appeal, Paul contends the circuit court erred in failing to grant

her motion for acquittal because the evidence was insufficient to prove beyond a

reasonable doubt that she had knowledge of the nature of the controlled substance

found in her kitchen.

       Section 195.202 provides that it is unlawful for any person to possess or have

under his control a controlled substance. In 2011, the statutory definition of "controlled

substance" was amended to include "synthetic cannabinoids." § 195.017.2(4)(ll). "To

sustain a conviction for possession of a controlled substance, the State must prove the

following two elements: (1) conscious and intentional possession of the substance,

either actual or constructive; and (2) awareness of the presence and nature of the

substance." State v. Taylor, 407 S.W.3d 153, 159 (Mo. App. 2013); § 195.010(34).

       Here, Paul does not dispute that she had possession of the controlled

substance, nor does she dispute that she was aware of such possession. Rather, Paul

argues that she "lacked the knowledge of the nature of the drug found in her home."

The crux of Paul's argument is that she "had no knowledge of the presence of an illegal

substance in her home." (Emphasis added). She notes that the possession of synthetic

marijuana did not become illegal until August 28, 2011, after the passage of H.R. 641,

96th General Assembly, Regular Session (Mo. 2011).

       Paul presented testimony at trial that she hosted a "card party" at her home on

November 17, 2011. When Paul left her party briefly "for a beer run," her guests called



                                             3
her and asked if they could burn "K2" or "Mr. Happy" — both brand names for synthetic

marijuana. One of Paul's guests had purchased the "Mr. Happy" at a gas station. Paul

testified that she instructed her guests to wait until she got home because she was not

familiar with the product.

       When Paul returned home, she inspected the package. Paul testified that the

substance's label warned that its contents were "not for human consumption," and that

the label stated "probably three times" that its contents were "one hundred percent

legal." After reading the "Mr. Happy" package, Paul allowed the cigarette to be burned

in the ashtray "like . . . incense." Paul testified that no one actually smoked the

substance.

       The flaw in Paul's argument is that the State was not required to prove that she

knew the subject substance was illegal. The Narcotic Drug Act previously defined

"possessing a controlled substance" as occurring when "a person, with the knowledge

of the presence and illegal nature of a substance, has actual or constructive possession

of the substance." § 195.010(33), RSMo 1997. The Act, however, has since been

amended to delete the word "illegal" from the definition of possession. § 195.010(34).

Thus, while the State is required to prove that the defendant had knowledge of the

general character of the substance — "i.e., that the substance was a drug of some sort,

and not just baking power" — the State is not required to prove that the defendant knew

the substance was illicit. 32 Mo. Practice Series, Criminal Law §40.4, at 392 (2d ed.

2004). Consequently, Paul's arguments that she believed the substance was legal must

fail because a defendant's knowledge of the illegal status of a substance is irrelevant in

a prosecution for possession of a controlled substance.



                                             4
       In addition to her argum
        n           o         ments regar
                                        rding her ig
                                                   gnorance of the illegali of the
                                                             f            ity

substance, Paul as
                 sserts that "she genuin
                             "         nely believe the cigar
                                                  ed        rette contained a form of

incense." To the extent Paul is arguing that there w insufficient evidence to prove
                                        t          was                            e

that she had knowledge of the substance general character, that argum
                            e         e's                           ment also fails.

While th
       here was tes
                  stimony at trial suppor
                                        rting Paul's position, w
                                                               when properly viewing the

record in the light most favora
        n           m         able to the verdict, the evidence is sufficient to prove
                                          v                      s

beyond a reasonab doubt th Paul had knowledg of the ge
                ble      hat      d        ge        eneral natur of the
                                                                re

substance found in her kitchen. When Chief Garton found the substance in Paul's
                 n                   C          n         e         e

home, it was in an ashtray and was rolled up in a pa
       t                     d          d          aper in a m
                                                             manner com
                                                                      mmonly used to
                                                                                d

smoke marijuana. Additionally, Paul test
      m                                tified that th "Mr. Hap
                                                    he       ppy" packag referred to
                                                                       ge

its conte
        ents as "has
                   sh"— a com
                            mmon slang term for m
                                     g          marijuana a the short form of
                                                          and

"hashish which is the resin extract of the cannabis plant. See State v. R
       h,"                  e                     s          e          Reiley, 476

S.W.2d 473, 473 (M banc 19
                 Mo.     972). Finally, the subs
                                               stance's lab made m
                                                          bel    multiple

statements regarding its legality. Based on this evid
                                                    dence, the circuit cour could
                                                                          rt

reasona
      ably infer tha Paul was not under the impres
                   at       s         r          ssion that th "Mr. Hap
                                                             he       ppy" produc
                                                                                ct

was sim
      mply incense and that she was aw
                 e          s        ware of the s
                                                 substance's drug-like nature.
                                                           s

Accordin
       ngly, the co did not err in failing to sustain Paul's mo
                  ourt                   g          n         otion for jud
                                                                          dgment of

acquittal. The poin on appea is denied.
                  nt       al         .

                                        CONCLUSION
                                         O

       The judgment of convic
       T                    ction is affir
                                         rmed.




                                           ____________________________
                                                                      _________
                                                                              ___
                                           LISA WHITE HARDWICK, JUDGE
                                                    E        K


                                              5
ALL CONCUR.




              6
