State v. Kerfoot, 48107

• Decision Date: 13 August 1984
• Docket Number: No. 48107,48107
• Citation: 675 S.W.2d 658
• Parties: STATE of Missouri, Respondent, v. James Alan KERFOOT, Appellant.
• Court: Missouri Court of Appeals

Page 658

675 S.W.2d 658

STATE of Missouri, Respondent, v. James Alan KERFOOT, Appellant.

No. 48107.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Aug. 13, 1984.

J. Patrick Wheeler, Canton, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

REINHARD, Judge.

Defendant was convicted of possession of marijuana in a court-tried case, in violation of § 195.020, RSMo.1978, and sentenced to a term of three years imprisonment. He appeals. We affirm.

On October 21, 1982, Verlin Waide, the Sheriff of Clark County, Sergeant Belshe of the Missouri Highway Patrol and others were flying in a helicopter near Fairmont, Missouri. The helicopter was glass-enclosed. The officers were in uniform. They spotted what they believed to be marijuana growing adjacent to a cornfield on the Noona Kerfoot farm. Defendant was about 600 feet from the marijuana. The helicopter hovered over him about 120 feet in the air. He quickly walked to his pickup truck located 100 feet away in a field and drove off. The helicopter followed the truck for some distance hovering over it approximately 100 feet. The pilot of the helicopter set down in a field at a point where the officers thought they could stop defendant. Sergeant Belshe ran to the road but defendant had already passed. The officer yelled at defendant as he was driving away, but he did not stop. Belshe returned to the helicopter and the pursuit continued. Once aloft again, the helicopter developed engine trouble so it returned to the Kerfoot farm and landed in a freshly harvested soybean field.

Defendant's mother and his girlfriend came out to the helicopter. The mother gave the officers permission to search the farm. They found four, large growing marijuana plants and eight stalks of plants that had recently been cut. Upon further investigation, they found marijuana drying in an "open-front-type hog house," in a large two-story shed and in a round grain bin. In addition, Sharon Smith, defendant's girlfriend, went inside the trailer in which she, defendant and his mother lived and produced a bag of marijuana from a dresser. During the officer's investigation at the farm of 3 hours, defendant did not return.

The evidence established that the farm was owned by defendant's mother. The evidence further established that a neighbor who farmed across the road had rented this farm until 1978. At that time defendant commenced farming the farm and was also doing so in 1982. The neighbor who had known the Kerfoots for many years knew this from his own personal observation "across the fence." He had seen defendant chisel plowing the farm in the fall of 1982. Another witness testified that defendant farms this land and he helped defendant plant the corn crop in the spring of 1982. He occasionally helped harvest the crops on the Kerfoot farm by driving the grain to the elevator. The tickets for the grain were in the names of both defendant and his mother.

The Kerfoot farm contained a trailer, two grain bins, a large shed, a hog shed, a silo and a large barn. The drying marijuana was found in the three closest outbuildings to the trailer. The large shed was located less than 100 feet from the trailer. The marijuana in this shed was found on the floor next to a large gasoline tank and in the attic. There was farm equipment in the shed as well as a freezer containing a fox hide and squirrel tails. There was a large amount of marijuana in the hog shed hanging from the ceiling joists. In addition, marijuana was found drying in the grain bin closest to the trailer.

Defendant raises five points on appeal. Defendant first contends the trial court erred in permitting Sergeant Belshe to testify because a written report which he prepared had not been disclosed to defendant. Sergeant Belshe was disclosed as a witness to defendant during discovery. However, a police report he prepared was not. Defendant's attorney objected at the outset to the officer's testimony when it became apparent a report had been prepared. The trial court called a recess and allowed defendant's attorney to examine the report. The officer then resumed the stand. His testimony was limited to identification of a videotape and photographs taken of the farm and a schematic diagram of the farm. The videotape and photographs had been previously disclosed to defendant. Sergeant Belshe had previously testified at the preliminary hearing.

Rule 25.03 requires the state, upon written request, to disclose any written statements made by witnesses it intends to call. If the state fails to comply, the court may order disclosure of the statement, grant a continuance, exclude the evidence or enter other orders as it deems just. Rule 25.16. It is well settled that whether a sanction is to be imposed or the nature of the sanction, if imposed, is a matter within the discretion of the trial court. State v. Smith, 650 S.W.2d 5, 7 (Mo.App.1983). An abuse of discretion occurs only when the trial court's action results in fundamental unfairness to the defendant. State v. Smothers, 605 S.W.2d 128, 131 (Mo. banc 1980).

Here, the state failed to disclose the written report as it was required to do. The trial court granted a recess and allowed the defendant to examine the report. After the officer resumed the stand, his testimony was principally confined to identification of a videotape and photographs which had been previously disclosed to defendant. Moreover, he had previously testified at the preliminary hearing so that defendant was not surprised by the testimony. Under these circumstances, there was no abuse of discretion.

In his second point, defendant alleges that the trial court erred in allowing two witnesses, Gene Paul and Rex Pitford to testify to matters not within the disclosure made to defendant. The state, in its answer to defendant's request for disclosure, stated that Gene Paul and Rex Pitford were witnesses and set forth the substance of their expected testimony. At the trial, they testified as outlined and both also stated that defendant currently farmed the farm. Defendant objects that these latter statements were not disclosed by the state.

Defendant's point misses the mark. Rule 25.03 only requires that the state disclose the names and addresses of its witnesses and existing written statements or memoranda reporting or summarizing part or all of their oral statements. It does not require categorizing and summarizing of a witness' testimony. State v. Feast, 588 S.W.2d 158, 161 (Mo.App.1979). There is nothing in the record to indicate either of these witnesses gave written statements or that any written memoranda summarizing their oral statements existed. The prosecutor's summarization of their testimony was surplusage. There is no merit to this point.

Defendant contends the court erred in overruling his motion for judgment of acquittal because there was insufficient evidence that any of the plant material found in the hog house, grain bin or tool shed was ever tested and determined to be marijuana. We find no merit to this point.

A state's witness, a forensic chemist, testified that the growing plants and the matter seized from the trailer were marijuana. Sheriff Waide testified without objection that the plant material seized from the grain bin, hog shed, and tool shed was marijuana. Police officers can testify that in their opinion a certain substance is marijuana. Such testimony is sufficient, in the absence of a chemical analysis by an...