State v. Dreiling
| Decision Date | 28 April 1992 |
| Docket Number | Nos. WD,s. WD |
| Citation | 830 S.W.2d 521 |
| Parties | STATE of Missouri, Respondent, v. Stephen C. DREILING, Appellant. Stephen C. DREILING, Appellant, v. STATE of Missouri, Respondent. 43959, WD 44867. |
| Court | Missouri Court of Appeals |
Larry A. Schaffer, Independence, Catheryn B. Starke, Blue Springs, for appellant.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
Before FENNER, P.J., and ULRICH and SPINDEN, JJ.
In this appeal, Stephen C. Dreiling challenges his convictions and sentences for manufacturing marijuana and for misdemeanor possession of marijuana, both in violation of § 195.020, RSMo 1986. The trial court sentenced him to three years in prison for manufacturing marijuana and one year in jail, to run concurrently with the prison sentence, for marijuana possession. While his appeal was pending, Dreiling filed a motion pursuant to Rule 29.15 to set aside his convictions on the contention that he received ineffective assistance of counsel. The trial court overruled his motion after a hearing, and Dreiling appeals this ruling, too.
Law enforcement officers arrested Dreiling on August 7, 1988, after receiving tips that someone was growing marijuana in a rural area of Cedar County. They first saw Dreiling at about 11 A.M. while they patrolled the area. Dreiling was riding his bicycle to the east when the officers, traveling west, passed him. The officers decided to talk to him to determine his reason for being in the area. As they turned their patrol car around, one of the officers saw Dreiling lower a backpack from his back and throw something. The officer was about 200 yards from Dreiling and could not tell what it was.
When the officers stopped Dreiling, he was perspiring heavily. He had many "sticktights"--some sort of weed--on his clothes. While detaining Dreiling, the officers looked for what he had thrown. They did not find it immediately and let Dreiling continue on his way.
After Dreiling left, the officers continued searching. About 20 to 25 feet from where they had stopped Dreiling, on the other side of a fence running parallel to the road, they found a brown paper sack and a white envelope within two or three feet of each other. Neither showed any signs of exposure to the elements. The sack contained two bottles--a large one labeled "potassium nitrate" and a small, unlabeled one containing household ammonia--and a syringe. The envelope contained 5.3 grams of freshly cut marijuana leaves.
The officers immediately pursued Dreiling who was still riding his bicycle down the road and was not out of their sight. They arrested him for possession of marijuana and drug paraphernalia. After advising him of his constitutional rights, they took him into custody.
While Dreiling was in custody at the sheriff's office, officers obtained a search warrant to search the house which Dreiling said he rented. During their search, officers seized .7 grams of marijuana which they found in a microwave oven in the house's kitchen, an ash tray with what appeared to be marijuana butts in it, cigarette papers, a pipe, a small spoon fabricated from a nail, and a wooden tray. In an outbuilding, the officers found, but did not seize, five-inch styrofoam cups and seed-starter trays with dirt and peat moss in them.
Officers returned to where they had arrested Dreiling and found a bicycle tire track in the road. The track led to a cattle trail in a field rented by Jack Fox from whom Dreiling rented a house. 1 The cattle trail led to a 20-foot-by-25-foot marijuana patch in a clearing surrounded by timber. It was about 200 yards from a stream. Twine wrapped around stakes enclosed the patch. Two buckets were at the patch's edge. Thirty-one marijuana plants, five to six feet tall, were growing in the patch. The plants' roots were somewhat cone shaped and had peat moss clinging to them. Nearly all of the plants had been grafted in some way.
Dreiling assigns five points of error in seeking a reversal of his convictions. He assigns four more points of error to the court's overruling of his Rule 29.15 motion in which he contends that he was denied effective assistance of trial counsel.
In reviewing his contentions that the state did not present sufficient evidence to convict him, we consider all of the evidence and its inferences in a light most favorable to the verdict and cast aside all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 329 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). To prevail on his contention that his Rule 29.15 motion was wrongfully overruled, Dreiling must overcome a strong presumption that his trial counsel exercised reasonable professional judgment. State v. Hamilton, 791 S.W.2d 789, 797 (Mo.App.1990). He must demonstrate that his counsel's performance was deficient under prevailing professional standards and that he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).
Dreiling argues that the trial court erred in overruling his motions for judgment of acquittal because the state's evidence was insufficient to convict him. We disagree.
When convictions rest entirely on circumstantial evidence, as these do, the facts and circumstances establishing guilt must be consistent with each other and with a conclusion that the defendant is guilty. They also must be inconsistent with any reasonable theory of the defendant's innocence, although the evidence need not be conclusive of guilt or demonstrate the impossibility of innocence. State v. Wahby, 775 S.W.2d 147, 154-55 (Mo. banc 1989).
To make a submissible case of manufacturing marijuana, the state had to present evidence from which the jury could find beyond a reasonable doubt that Dreiling was planting, cultivating, growing or harvesting marijuana. State v. Melton, 733 S.W.2d 21, 23 (Mo.App.1987). Dreiling concedes that someone was cultivating the marijuana growing in the patch, but he contests that the state did not link him sufficiently to the patch.
Although Dreiling had no ownership interest in the land on which the marijuana patch was located and no evidence directly showed him to have ever been in the patch, the state did sufficiently link him to the patch through circumstantial evidence. Officers found him on a bicycle in the area of the patch. They saw him throw something in the direction of where, a short distance away, they found an envelope containing more than five grams of freshly cut marijuana and a paper sack containing a common fertilizer. The envelope and sack showed no signs of weathering or exposure to the elements. The freshness of the marijuana suggested that it was from a nearby source. That Dreiling would quickly rid himself of fertilizer and a syringe when he saw the patrol car turn around gives rise to a reasonable inference that he feared that the otherwise innocent objects would connect him to an illegal activity. A state chemist found traces of household ammonia in the marijuana plants taken from the patch. Bicycle tracks led officers a quarter-mile into the field where the marijuana patch was. Dreiling rented his house from Jack Fox who, in turn, rented the field. Dreiling had sticktights on his clothing consistent with his having walked in a field. From the items which officers found in Dreiling's outbuilding and the appearance of the marijuana plants' roots, the jury could have reasonably inferred that Dreiling had transplanted the plants into the marijuana patch. We conclude that the state's evidence of manufacturing was sufficient.
In his Rule 29.15 motion, Dreiling complains that his attorney did not cite "existing case law," especially the Melton case, in support of his motion for acquittal on the manufacturing charge. Had his attorney done so, he asserts, the trial court would have granted his motion. We disagree. The Melton court found the state's evidence to be "abysmally short" of establishing beyond a reasonable doubt that Melton manufactured marijuana. In reviewing the state's evidence in that case, the Melton court stated:
There was no evidence in the state's case in chief that Melton owned, had any possessory interest, or control over the land where the marihuana was growing.
Melton's neighbor, John Clayton, who owned the land in question, testified that Melton had nothing to do with the marihuana patch, nor had he helped Clayton in growing, cultivating, or harvesting it. Melton had permission to be on the Clayton farm, and said that on the day in question he was looking for deer signs when he discovered the marihuana patch. As to the marihuana plant the officers saw in Melton's hand when he left the field, Melton said, "I ... didn't know where [sic] I had reached over and pulled one up to look at it or what."
Id. at 22-23. In Dreiling's case, the state offered significantly more evidence linking Dreiling to the marijuana patch--most notably the freshly-cut marijuana, the fertilizer and furtive steps to rid himself of the fertilizer, presence of household ammonia in the plants, bicycle tracks, and the plants' appearance vis a vis the gardening items found in Dreiling's outbuilding. The motion court properly concluded that citing such cases as the Melton case should not have changed the court's ruling on Dreiling's motion for acquittal.
To make a submissible case of marijuana possession, the state's evidence had to establish that Dreiling knowingly and intentionally possessed the marijuana and that he was aware of its presence and nature. State v. Adkins, 800 S.W.2d 28 (Mo.App.1990). The possession and knowledge elements can be satisfied from reasonable inferences drawn from...
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