State v. Frisby, 13833

CourtSupreme Court of West Virginia
Citation245 S.E.2d 622,161 W.Va. 734
Docket NumberNo. 13833,13833
PartiesSTATE of West Virginia v. Dallas Kent FRISBY.
Decision Date27 June 1978

Page 622

245 S.E.2d 622
161 W.Va. 734
STATE of West Virginia
Dallas Kent FRISBY.
No. 13833.
Supreme Court of Appeals of West Virginia.
June 27, 1978.

Page 623

Syllabus by the Court

1. W.Va.Code, 60A-4-401(a) (1971), which makes it a felony to "manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance" is not unconstitutional because it fails to provide standards by which the jury is to determine whether the defendant had the intent to manufacture or deliver.

2. W.Va.Code, 60A-4-401(c) (1971), which requires misdemeanor treatment for first offenders guilty of possessing less than 15 grams of marijuana, does not discriminate invidiously against second offenders or possessors of greater amounts; it merely establishes what amounts to a presumption of law that first offense possession of less than 15 grams is not with intent to deliver, and with regard to indictments for possession of more than 15 grams with intent to deliver, or for second offense possession with intent to deliver, the State must still, in each and every case, prove such intent beyond a reasonable doubt.

3. The question of whether a person possesses a controlled substance with intent to manufacture or deliver is a jury question to be determined like other questions of intent from all the surrounding facts and circumstances, and as such intent is a basic element of the offense, it must be proven beyond a reasonable doubt.

[161 W.Va. 735] 4. Objections during a criminal trial may be waived where (1) the trial judge requests reasons for the objections at the time they are raised; (2) reasons are then assigned which would not cause the objection to be sustained at that time; and, (3) later after the trial has proceeded to the point where the error cannot be corrected, reasons are assigned which would have been sufficient to sustain the objection. Under these circumstances a particularly strong case for the application of "waiver" arises when it appears that failure to sustain the objection was only harmless error.

5. While police officers may enforce the licensing and registration laws for drivers and motor vehicles respectively by routine checks of licenses and registrations,

Page 624

such checks must be done according to some non-discriminatory, random, pre-conceived plan such as established check points or examination of vehicles with particular number or letter configurations on a given day; accordingly, detention of vehicles without probable cause to believe that a registration is irregular absent a random, non-discriminatory, preconceived plan is contrary to the Fourth Amendment to the Constitution of the United States and W. Va. Constitution, art. 3, § 6.

6. Where the police see a license plate which appears to have no state identification and which does not appear to be a regularly issued license plate from any state of the Union, they have reasonable grounds to believe that further investigation is warranted, and evidence of other crimes discovered pursuant to a registration check of such vehicle is admissible into evidence against the occupants of the vehicle without violating the Fourth Amendment to the Constitution of the United States or W. Va. Constitution, art. 3, § 6.

Leonard Z. Alpert, Weirton, for appellant.

Edward W. Gardner, Asst. Atty. Gen., Chauncey H. Browning, Jr., Atty. Gen., Charleston, for the State.

[161 W.Va. 736] NEELY, Justice:

This appeal arises from the conviction of the appellant, Dallas Kent Frisby, for possession of a controlled substance, namely marijuana, with intent to deliver. The appellant assigns three errors: (1) the statute under which the conviction was obtained, W.Va.Code, 60A-4-401(a) (1971) is unconstitutional because it does not set forth definite standards for proving "intent to deliver;" (2) exhibits were introduced which tended to prove another, unrelated crime and such exhibits were not on the State's bill of particulars; and (3) the initial...

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22 cases
  • State v. Fairchild, s. 15501
    • United States
    • Supreme Court of West Virginia
    • November 18, 1982
    ...... Quoting from State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622, 644 (1978), we reasoned that "[A]ll common law crimes require a mens rea, and what a person intended is always a ......
  • State v. Gervasio
    • United States
    • United States State Supreme Court (New Jersey)
    • July 19, 1983
    ...State v. Albertsen, 37 Or.App. 679, 590 P.2d 235 (1978); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); State v. Frisby, 245 S.E.2d 622 (W.Va.1978) cert. den., 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1979). See United States v. Bell, 383 F.Supp. 1298 (D.Neb.1974) (applying ......
  • State v. Moore, 14009
    • United States
    • Supreme Court of West Virginia
    • November 25, 1980
    ...N.E.2d 280 (1978). We have several cases from within this jurisdiction that may be analogized to the foregoing rule. In State v. Frisby, W.Va., 245 S.E.2d 622 (1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1979), we recognize that the police could lawfully stop a vehicle......
  • Com. v. Leninsky
    • United States
    • Superior Court of Pennsylvania
    • December 29, 1986
    ...Brown, supra; State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985); State v. Frisby, 245 S.E.2d 622 (W.Va.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1978); see also LaFave, Search and Seizure, Vol. 3, § 10.8 a, g ......
  • Request a trial to view additional results

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