Harwood v. State, F--75--491

• Decision Date: 17 December 1975
• Docket Number: No. F--75--491,F--75--491
• Citation: 543 P.2d 761
• Parties: Johnny HARWOOD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 761

543 P.2d 761

Johnny HARWOOD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--491.

Court of Criminal Appeals of Oklahoma.

Dec. 17, 1975.

Michael P. Warwick, Shawnee, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Kenneth Lisle, Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellant, Johnny Harwood, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pottawatomie County, Case No. CRF--74--562, for the offense of Unlawful Delivery of Marihuana, in violation of 63 O.S.1971, § 2--401, B 2. His punishment was fixed at a term of two (2) years' imprisonment with assessment of a fine in the amount of One ($1.00) Dollar. From said judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness at trial was Dennis Dill who testified he was an undercover narcotics agent. He stated that on the first day of October, 1974, he was employed with the District Attorney's Office of Pottawatomie County to work undercover drug investigations in Shawnee, Oklahoma. He identified the defendant in court and testified that he first met the defendant at a convenience store in Shawnee at approximately 3:00 p.m. on the 5th of December. He further stated that upon greeting the defendant and one Charley Hargraves outside the convenience store the defendant proceeded to ask him if he wanted to buy some marihuana. He testified that he told the defendant he would 'if it was good stuff.' Thereafter, he, Charley Hargraves and the defendant proceeded in his car to obtain the marihuana at one Chris Neely's house located at 821 West Main Street in Shawnee, Oklahoma. He testified that upon arrival at Chris Neely's house the defendant told Neely, who was in a wheelchair, that Dill wanted to buy some marihuana and to get a bag, whereupon Chris Neely wheeled to the bedroom and brought back approximately three bags of marihuana telling Dill to choose one. The witness testified that he chose a bag and paid Neely ten dollars. He further testified that several other people were in the house and that at the suggestion of one of these people the witness rolled up a cigarette with the marihuana he had purchased and handed it to the defendant who lighted it and passed the cigarette around approximately twice. Thereafter, the witness told them that he had to leave. He took Charley Hargraves and the defendant to Hargraves' house where Hargraves and the defendant picked up their clothes as they were moving into Chris Neely's house. Later that same evening, he testified, he met Dan Megehee at a prearranged location outside of Shawnee and turned over the evidence to him.

The State's next witness was Dan Megehee who testified he was an investigator for the District Attorney's Office of Pottawatomie County and stated that his primary duty was narcotics investigation. He further testified that on the evening of December 7, 1974, he met with Dennis Dill outside Shawnee at which time Dill gave him a bag of marihuana which Dill stated he had purchased from Chris Neely, Charley Hargraves and the defendant. Thereafter, he identified the defendant in court and identified the bag of marihuana, State's Exhibit No. 1, as being the same bag which Dill had given him and which he had in turn given to Detective Gary Rogers on the 9th of December, 1974, to transport to the Oklahoma State Bureau of Investigation. On cross-examination he testified that he performed a Duquenois-Levine field test on the substance before it was sent to the Bureau.

Gary Rogers testified he was a Detective for the Shawnee Police Department and stated that he received a bag of marihuana, State's Exhibit No. 1, from Investigator Dan Megehee on December 9, 1974, and thereafter transported it to the Oklahoma State Bureau of Investigation. He further testified to the identity of the evidence envelope which he had sealed with tape and initialed.

Mike McGeehon testified that he was a forensic chemist with the Oklahoma Bureau of Investigation and that he had occasion to test the bag of marihuana, State's Exhibit No. 1, by performing a microscopic examination and a color test known as the Duquenois-Levine test. He also performed a Thinlayer Chromotography test and that based upon the results of these tests in his opinion the bag contained marihuana. On cross-examination he stated he had performed these three tests in excess of 2,000 times and he also identified his lab number and initials on the evidence envelope.

The defendant then took the stand and testified in his own behalf and stated that he did have occasion to see agent Dill at the convenience store on the 5th of December, but that it was the agent who first approached him concerning the purchase of marihuana and not he who approached the agent. He also stated that thereafter he, agent Dill and Charley Hargraves drove to Chris Neely's house at which time a bag of marihuana was obtained for Dill. On cross-examination he testified that he had stayed at Chris Neely's house a couple of days but that 'he didn't do his business for him.'

The defendant's first assignment of error contends the trial court erred in failing to sustain the defendant's demurrer to the evidence as the evidence presented was insufficient to prove the crime charged. The defendant alleges such assertion is supported by the evidence showing that the undercover agent, Dill, initiated the events resulting sulting in the delivery or sale of marihuana and further that the defendant was not present at the sale or delivery, that no evidence showed the defendant had any financial interest in the transaction at any time and that, lastly, there was no evidence of joint plan or agreement between defedant and the actual vendor or distributor of the marihuana, Chris Neely. The defendant concludes by urging such facts rendered the evidence insufficient to prove the defendant guilty as a principal to the crime of unlawful delivery of marihuana. ¹ And further, the defendant asserts that the evidence is also insufficient to establish guilt as an aider or abettor to the crime citing Anderson v. State, 66 Okl.Cr. 291, 91 P.2d 794 (1939) and Jones v. State, Okl.Cr., 481 P.2d 169 (1971).

We note that Jones, supra, involved facts which have given rise to judicial recognition of the procuring agent defense which in essence establishes that where a defendant was merely the procuring agent of the buyer of narcotics, normally an undercover agent, such a status constitutes a defense to a charge of unlawful sale of a narcotic drug. See, Posey v. State, Okl.Cr., 507 P.2d 576 (1973). However, in Tipton v. State, Okl.Cr., 528 P.2d 1115 (1974), this Court correctly recognized that the procuring agent defense was only applicable in cases wherein the defendant was convicted under the previous statute prohibiting unlawful Sale of controlled substances and not the amended statute proscribing the conduct of unlawful delivery or distribution of controlled substances. ² See, 63 O.S.1961, § 401(10) and 63 O.S.1971, § 2--401, A 2.

In the instant case the facts clearly show the defendant took the undercover agent to Chris Neely's house at which time the agent and Neely consummated a sale or delivery of marihuana. Undercover agent Dill testified the defendant offered to take him to obtain some marihuana which we note is in conflict with the defendant's testimony which is essence asserted the officer approached him inquiring as to where he might purchase some drugs. We note the resolution of who instigated the incident in question is a factual determination within the province of the jury and will not be invaded by this Court. See, Jones v. State, Okl.Cr., 468 P.2d 805 (1970).

Under the attendant circumstances of this case, we find the resolution of this factual determination is not crucial to the sufficiency of the evidence to prove the defendant guilty of unlawful delivery. The trial court properly instructed the jury regarding the issue of aiding and abetting. ³ From the facts herein we conclude sufficient evidence existed of defendant's participation in the sale, consummated by a presumed friend of the defendant's, from which the jury properly concluded that the defendant aided and abetted in the delivery of the marihuana and, thus, under...