State v. Frisby, 13833
| Decision Date | 27 June 1978 |
| Docket Number | No. 13833,13833 |
| Citation | 245 S.E.2d 622,161 W.Va. 734 |
| Parties | STATE of West Virginia v. Dallas Kent FRISBY. |
| Court | West Virginia Supreme Court |
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.
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 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.
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 detention of the appellant in a motor vehicle was illegal and, therefore, all evidence found as a result of such detention was tainted. We find no merit to the appellant's arguments and affirm the judgment of conviction entered by the Circuit Court of Hancock County upon the jury verdict.
The appellant and a male companion were driving a van on the public streets of Weirton at about 2:30 a. m. on September 7, 1975. A city police officer observed a license plate on the van which had a number, over which appeared the letters BLMO. The officer testified that he had never seen a similar plate, and that the plate appeared to have no state identification. The officer stopped the van and during the course of the stop the officer's companion, a reserve policeman, noticed a rifle in plain view inside the vehicle and smelled the odor of marijuana. The appellant was taken into custody, a warrant was obtained to search the van, and the police discovered about 175 pounds of marijuana, two weapons, a set of scales suitable for weighing marijuana, and various sizes of bags.
At trial all of this evidence was introduced and a jury convicted the appellant of possession of a controlled substance with intent to deliver. The provision of the law making such possession a crime, W.Va.Code, 60A-4-401(a) (1971) says:
Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
We find no constitutional infirmity in this section as it establishes a jury question on the element of intent. All common law crimes require a mens rea, and what a person intended is always a question for jury determination under all the facts and circumstances. There is no reason to treat a statutory crime any differently. In this case the appellant had far more marijuana than an average person can consume in the course of several years, and had a scale and bags which the jury could infer were for the purpose of distributing the drug. Obviously quantity, standing...
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