Merrill v. State, 38072
| Decision Date | 12 December 1978 |
| Docket Number | No. 38072,38072 |
| Parties | Michael H. MERRILL, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Cundiff, Turken & Londoff, Michael A. Turken, St. Charles, for appellant.
John Ashcroft, Atty. Gen., Larry R. Marshall and Philip M. Koppe, Asst. Attys. Gen., Jefferson City for respondent.
Defendant appeals from his conviction by the Court for sale of a controlled substance and resultant 5 year sentence. We affirm.
Initially defendant challenges the information as fatally defective because it fails to state into which schedule the controlled substance belongs. The information charged an unlawful sale of a controlled substance "to wit: methylenedioxy-amphetamine." The test of the sufficiency of an information is whether it states the essential elements of the offense charged, adequately notifies defendant of the charge against him and constitutes a bar to further prosecution for the same offense. State v. Adams, 546 S.W.2d 550 (Mo.App.1977). Section 195.020 R.S.Mo. Supp. 1971 prohibits the sale of any controlled substance except as authorized in certain other sections of the statute. A "controlled substance" is defined in Sec. 195.010(6) as a substance in Schedules I through V. The schedule to which the drug belongs determines only the punishment. Section 195.017(2)(4)(a) includes in Schedule I "3,4 methylenedioxy amphetamine." The words "methylenedioxy amphetamine" do not appear in any other schedule. Defendant offers no authority, and there appears to be none, for his proposition that since the penalties vary with the schedule to which the drug belongs the schedule must be specified in the information.
This information was sufficient to apprise defendant of the charge against him and bar further prosecution for the same offense.
Defendant also contends that since the prefix "3,4" was omitted from the drug listed in the information "(T)he State failed to establish beyond a reasonable doubt a critical element of the offense charged, the nature of the controlled substance and that possession of said substance was illegal." The State's evidence established that the substance sold by defendant to an undercover sheriff's deputy was "3,4 methylenedioxy amphetamine," a substance listed in Schedule I. Defendant admitted in his testimony that he sold "MDA" "a drug" or "narcotic" to the deputy. The test to be applied is whether the average person reading the list would conclude that the substance sold by defendant was a proscribed amphetamine. See State v. Crump, 454 S.W.2d 519 (Mo.1970); State v. McIntosh, 500 S.W.2d 45 (Mo.App.1973) (2-4). Defendant relies upon State v. Boggs, 49 S.W.2d 269 (Mo.App.1932) and State v. Bridges, 398 S.W.2d 1 (Mo. banc 1966). Both of those cases involve sale or distribution of a substance clearly different in appellation from the substance charged in the information (Boggs corn whiskey vis-a-vis moonshine whiskey; Bridges metamphetamine hydrochloride or amphetamine sulfate vis-a-vis amphetamine hydrochloride). In Bridges the cause was reversed but remanded to allow the state to establish that the substance contained a proscribed substance or was the same as a proscribed substance. We find the present case more nearly analogous to State v. McIntosh, 500 S.W.2d 45 (Mo.App.1973) in which we held that the description of a drug as soluble secobarbital was insufficient to lead the average person to believe the drug was chemically different than plain secobarbital. Here the substance involved was described at trial interchangeably by the "3,4" prefix, without the prefix, and by the initials, "M.D.A." No question was raised during the trial that all three appellations were descriptive of the same drug. We find no merit to this point.
Defendant's next point is that the State failed to introduce sufficient evidence to rebut defendant's evidence of entrapment and therefore failed to establish beyond a reasonable doubt defendant's guilt. Defendant claims he was entitled to judgment of acquittal as the State failed to rebut his evidence of entrapment. It is well established that when defendant presents substantial evidence of entrapment the State has the burden of showing substantial evidence of predisposition to commit the crime. State v. Weinzerl, 495 S.W.2d 137 (7-10) (Mo.App.1973); State v. Devine, 554 S.W.2d 442 (4, 5) (Mo.App.1977). We do not interpret the usage of the term "rebut" in those cases to mean that the evidence refuting entrapment must be presented after the evidence raising the entrapment issue. Rather, those cases hold that where entrapment is an issue the State bears the burden of establishing that the criminal intent originated with defendant. This burden may be met by sufficient evidence introduced at any point in the trial.
Vincent Garufi, Jr., testified that he was an undercover narcotics agent, had known defendant since 1971 and was formerly his employer. Garufi, defendant, Tom Scholle and Tom Heisler were in a car on February 26, 1975. The other men were smoking marijuana and defendant began talking about how he could purchase narcotics. Garufi expressed interest and gave him $55 for a "taste" of M.D.A. Defendant said he would make contact and get back in touch with Garufi. Defendant sold him the "taste" on March 6, 1975 and said he could make available great quantities of drugs. The drug was analyzed and determined to be 3,4 methylenedioxy amphetamine.
The testimony of defendant and Tom Scholle differs greatly from Garufi's. They recall that Garufi smoked marijuana with them and initiated all conversations about drugs. Garufi first inquired about purchasing drugs in early February, 1975. Defendant refused to become involved. Not long after this defendant and Scholle were arrested for having 5% Beer where only 3.2% Was permitted. Garufi, who was with another man, came to the police station and told them he had pulled some strings to get them out. They left with him and he told them they owed him a favor. He also mentioned Sam whom they understood to be a member of organized crime who owned restaurants and businesses and was involved in drug dealings. The man with Garufi was understood to be Sam's...
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