                                   Missouri Court of Appeals
                                                 Southern District
                                                   Division Two

STATE OF MISSOURI,                                       )
                                                         )
                            Respondent,                  )
                                                         )
           vs.                                           ) No. SD36144
                                                         )
WILLIAM W. WELCH, JR.,                                   ) FILED: July 22, 2020
                                                         )
                            Appellant.                   )

                     APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY

                                       Honorable David A. Dolan, Judge

AFFIRMED

           Following a jury trial, William W. Welch, Jr. (“Defendant”) was found guilty of

possession of a controlled substance, a class D felony, see section 579.015, and the unlawful

possession of drug paraphernalia, a class D misdemeanor, see section 579.074. 1 In two points on

appeal, Defendant argues that the jury could not reasonably infer, first, that he knew about the

controlled substance and, second, that he knew about the drug paraphernalia. Finding no merit in

Defendant’s points, we affirm.

                                                 Standard of Review

           In reviewing a claim that there was not sufficient evidence to sustain a criminal
           conviction, this Court does not weigh the evidence but, rather, accepts as true all
           evidence tending to prove guilt together with all reasonable inferences that
           support the verdict, and ignores all contrary evidence and inferences. This Court
1
    All statutory references are to RSMo 2016.

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       asks only whether there was sufficient evidence from which the trier of fact
       reasonably could have found the defendant guilty.

State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015) (quotation marks, brackets, and

citations omitted).

                              Factual and Procedural Background

       At 2:52 a.m. on September 4, 2017, Sikeston police officer Tyler Rowe (“Officer Rowe”)

received a report of a suspicious person at a construction site. After arriving at the construction

site to investigate, about two minutes after getting the report, Officer Rowe was alerted to a

portable bathroom located on the site when he observed that its outside indicator showed “red

occupied[.]”

       Officer Rowe “jiggled” the portable bathroom’s door, heard someone moving inside, and,

after pulling the door open a crack, saw Defendant, who was fully clothed. When he was asked

to step outside, Defendant ultimately complied, although he did not do so immediately.

Defendant informed Officer Rowe that some individuals from his church were allowing him to

stay in their residence approximately fifty yards away, that he was out for a walk clearing his

head, and that he used to work in construction and was checking out the site when he decided to

use the portable bathroom. After determining that Defendant had no active warrants, Officer

Rowe allowed him to return to the indicated nearby residence.

       Officer Rowe then resumed searching the construction site. In the portable bathroom,

Officer Rowe located a black velvet bag in the water “near the top of the toilet[.]” While the

outside of the bag was wet, inside the bag was a dry lightbulb with the filament removed that

contained a white crystalline powder. Based upon his training and experience, Officer Rowe

knew that a common method of smoking methamphetamine involved removing the filament

from a light bulb, inserting methamphetamine, heating the bulb, and then inhaling from where


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the filament used to be. Upon making this discovery, Officer Rowe immediately proceeded to

“recontact” Defendant.

       After detaining and arresting the Defendant at the nearby residence with the help of

another officer, which took about two to three minutes, Officer Rowe returned to the portable

bathroom to continue his search for any more contraband. Floating in the toilet, Officer Rowe

additionally found the “bottom part of a cigarette pack cellophane” containing a white crystalline

substance that was not wet. Laboratory testing later revealed that the crystalline substance in the

cellophane was methamphetamine.

       From the time of his initial arrival at the construction site until his final departure with

Defendant in his custody, Officer Rowe did not see anybody else at or near the construction site.

       Defendant was charged with and found guilty of possession of a controlled substance and

possession of drug paraphernalia. The court sentenced him to seven years’ imprisonment in the

Department of Corrections for possession of a controlled substance and fined him $500 for

possession of drug paraphernalia. Defendant timely appeals.

                                            Discussion

       Both of Defendant’s points contend that the trial court erred in overruling Defendant’s

motion for judgment of acquittal. He argues, first, that “that the jury could not reasonably infer

that [Defendant] knew about the methamphetamine found in the portable bathroom on the

construction site” and, second, “that the jury could not reasonably infer that [Defendant] knew

about the black bag with the light bulb found in the portable bathroom on the construction

site[.]” Therefore, according to Defendant’s argument, “the jury could not find beyond a

reasonable doubt that he had either actual or constructive possession” of either item. Because of

their similarity and common surrounding facts and circumstances, we address both of

Defendant’s points together.
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       Under section 579.015.1, “[a] person commits the offense of possession of a controlled

substance if he or she knowingly possesses a controlled substance[.]” Under section 579.074.1,

“[a] person commits the offense of unlawful possession of drug paraphernalia if he or she

knowingly uses, or possesses with intent to use, drug paraphernalia[.]” “Possessed” or

“possessing a controlled substance” is defined, in pertinent part, as:

       [A] person, with the knowledge of the presence and nature of a substance, has
       actual or constructive possession of the substance. A person has actual possession
       if he has the substance on his or her 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.

Section 195.010(34).

       Thus, to prove the possession offenses charged against Defendant, the State was required

to show “‘(1) conscious and intentional possession of [the controlled substance and

paraphernalia], either actual or constructive, and (2) awareness of the presence and nature of the

controlled substance [and paraphernalia][.]’” State v. Phillips, 477 S.W.3d 176, 179 (Mo.App.

2015) (quoting State v. Power, 281 S.W.3d 843, 848 (Mo.App. 2009)) (some alterations in

original). “[B]oth possession and knowledge may be proved by circumstantial evidence.” State

v. Drabek, 551 S.W.3d 550, 556 (Mo.App. 2018). “We employ the same analysis when

reviewing the question of whether [Defendant] possessed drug paraphernalia as when

determining whether [Defendant] possessed a controlled substance.” Power, 281 S.W.3d at 849.

       We begin and end our analysis with the evidence that supports findings of Defendant’s

actual possession of a controlled substance and drug paraphernalia. State v. McLane, 136

S.W.3d 170 (Mo.App. 2004), is instructive on the issue of actual possession when, like here, the

evidence is circumstantial. In that case, a law enforcement officer, after initiating a traffic stop,

discovered a change purse containing a controlled substance laying on the ground two feet away


                                                  4
from the stopped vehicle. Id. at 172. The officer did not see the purse thrown from the vehicle.

Id. He did, however, observe the following: the passenger window, where the defendant was

sitting, was rolled down after the driver had exited the vehicle; the officer was momentarily

distracted by the vehicle’s driver and then he looked back at the window, which he observed

being rolled back up; the purse, which was warm to the touch, was discovered on top of fallen

snow next to the side of the vehicle where the defendant was seated; and the defendant, when

asked about the purse, stated “I guess it had to come out that window but it’s not mine.” Id.

       Like the officer in McLane, Officer Rowe did not directly observe Defendant’s actual

possession of a controlled substance or paraphernalia. As with that case, however, such

possession could be reasonably inferred based upon the totality of the surrounding facts and

circumstances. Here, Defendant was discovered during the middle of the night fully clothed

while exclusively occupying a portable bathroom on a construction site with which he had no

known connection, with no one else around, and that was only fifty yards from the residence

where he was staying. The controlled substance and paraphernalia, both dry, were found in

containers, both wet on the outside, at the top of the water in the toilet, which could give rise to a

reasonable inference that they had recently been put in the toilet. Defendant did not immediately

exit the portable bathroom when asked to do so by Officer Rowe. The illicit materials were

discovered shortly after Defendant exited the portable bathroom. These facts and surrounding

circumstances could give rise to a reasonable inference that Defendant attempted to conceal or

dispose of the illicit materials in the toilet after his presence in the portable bathroom was

discovered by Officer Rowe, but before Defendant exited the bathroom.

       In completing his attempted concealment or disposal of the illicit materials, Defendant

necessarily would have had those materials within his easy reach and convenient control, i.e., in



                                                  5
his actual possession. See id. at 173 (“In order to have thrown the change purse from the pickup,

defendant would have had to handle it and maintain control over it.”). The attempted

concealment or disposal, following Officer Rowe’s knock at the door, was consistent with

Defendant having knowledge of the illicit nature of the material and his motivation to avoid

being caught with them on his person when he exited the bathroom. See id at 173–74 (citing

cases for the proposition that “the tossing of [a] backpack from [a] pickup after [a] patrol car

appeared was consistent with knowledge that possession of its contents violated the law”).

       In addition, the jury was free to disbelieve the accuracy of Defendant’s explanation given

to Officer Rowe that he was out for a walk to clear his head and needed to use the portable

bathroom. State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014) (jury has right to disbelieve

all or any part of the evidence). Such disbelief, coupled with Defendant’s admission that the

residence where he was staying was a mere fifty yards away, could give rise to a reasonable

inference that Defendant made a false statement to Officer Rowe out of his desire to conceal his

possession of the illicit materials and thereby demonstrated his consciousness of guilt. State v.

Barton, 998 S.W.2d 19, 28 (Mo. banc 1999) (a defendant’s declaration that shows a desire to

conceal the offense tends to establish the defendant’s guilt of the charged crime); State v. Isa,

850 S.W.2d 876, 894 (Mo. banc 1993) (“A permissible inference of guilt may be drawn from the

acts or conduct of a defendant, subsequent to an offense, if they tend to show a consciousness of

guilt and a desire to conceal the offense or a role therein.”).

       In sum, given the totality of the surrounding facts and circumstances, there was sufficient

evidence for the jury to reasonably find that Defendant was in actual possession of a controlled




                                                   6
substance (methamphetamine) and paraphernalia (the modified light bulb), and the trial court did

not err in denying Defendant’s motion for judgment of acquittal. 2 Defendant’s points are denied.

                                                     Decision

         The trial court’s judgment is affirmed.



GARY W. LYNCH, J. – OPINION AUTHOR

JEFFREY W. BATES, C.J./P.J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




2
  The cases cited by Defendant to support his argument to the contrary are inapposite. Neither the defendant in State
v. Clark, 490 S.W.3d 704, 709 (Mo. banc 2016), nor the defendant in State v. Driskell, 167 S.W.3d 267, 269
(Mo.App. 2005), acted in a manner that could support an inference they had the requisite knowledge of the presence
and nature of the controlled substances, which were discovered in sealed containers within spaces that neither
defendant had exclusive control over.

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