State misapplied accomplice liability statute in drug case

The Missouri Court of Appeals for the Western District found the state did not prove beyond a reasonable doubt that Nathaniel L. May possessed a controlled substance with intent to distribute, according to Section 195.211, RSMo. 1998.

The Buchanan County Drug Strike Force responded to a call from the manager of a local apartment complex who suspected illegal drug activity in the apartment of Faith Mabion. Upon visiting the apartment, St. Joseph Police Detective Jeff Wilson spoke with Mabion, who refused to consent to a search of her apartment. While speaking with Mabion, Detective Wilson observed May standing up quickly from his position on the couch, lifting the seat cushion, putting his hand under the cushion and replacing it. May then walked into the kitchen and returned to the couch, sitting on the floor in front of where he had been sitting.

The detective later observed Mark Wilson walk into his view and walk into the kitchen with May. Detective Wilson testified the two opened the refrigerator door and appeared to be getting something out of the refrigerator, although neither were seen consuming anything from it. Detective Wilson said he was unable to see anything in either man's hands.

Detective Wilson later left to obtain a search warrant, while Sgt. Howard Judd and two other officers remained at the apartment. When he returned, the detective found a trash bag that contained bags of 45.45 total grams of marijuana. He also found two bags of marijuana totaling 50.05 grams under the couch cushion he had seen May lift up. The detective also found $1,270 in cash on Mark Wilson. Upon arrest, May asked both the detective and the sergeant if he would be released if someone else admitted ownership of the drugs. Both told May they had seen him lift the cushion and that the marijuana was his. May did not deny possession. May was later convicted by the Buchanan County Circuit Court of possession of a controlled substance with the intent to deliver and was sentenced to five years' imprisonment.

May's sole point on appeal stated the circuit court erred denying his motion for judgment of acquittal, claiming the state provided no evidence that he possessed the controlled substance or that he intended to deliver.

According to State vs. Wurtzberger (Mo. App. W.D. 2000), Missouri no longer distinguishes between the principal of a crime and the accomplices. According to Section 562.041.1(2), May could be considered an accomplice because he knowingly encouraged the commission of the crime of possession by Mark Wilson.

"For the State to convict Mr. May of violating section 195.211, under a theory of accomplice liability, it must prove the commission of the elements of the crime charged by a principal with affirmative participation by Mr. May to aid the principal in the commission of the crime," Judge Robert Ulrich wrote.

May admitted to prior use of marijuana and acknowledged that there "was or had been marijuana in the apartment." The Court of Appeals did find that May's actions moving the cushion could be interpreted as an effort to hide the marijuana, according to State vs. Powell (Mo. App. W.D. 1998), but did not find that sufficient evidence had been presented that he was connected to the marijuana found in the kitchen.

"The evidence of Mr. May's activity in the kitchen is not sufficient to prove that he had control of the marijuana found there," Ulrich wrote. "Neither does the evidence establish that Mr. Wilson possessed the 45.45 grams of marijuana found in the kitchen with the intent to distribute it or that Mr. May aided Mr. Wilson in the commission of the offense."

The court found that May could be convicted of possession of a controlled substance under Section 195.202, RSMo. 1998; the state recommended the court enter a conviction based on this statute rather than releasing May. The court stated it could not enter a conviction under Section 195.202 because it is not a lesser-included offense of Section 195.211. The court reversed May's conviction.

State of Missouri, respondent vs. Nathaniel L. May, appellant; No. WD58949; handed down March 5.

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