State v. McClure

• Decision Date: 08 January 1974
• Docket Number: No. 34855,34855
• Citation: 504 S.W.2d 664
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James William McCLURE, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 664

504 S.W.2d 664

STATE of Missouri, Plaintiff-Respondent, v. James William McCLURE, Defendant-Appellant.

No. 34855.

Missouri Court of Appeals, St. Louis District, Division One.

Jan. 8, 1974.

Richard E. Snider, Cape Girardeau, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Chief Counsel, Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

WEIER, Judge.

Defendant, James William McClure, Jr., was prosecuted by information for the crime of selling LSD, a controlled substance, on June 25, 1971, under §§ 195.240, 195.270, RSMo 1969, V.A.M.S., the sale taking place prior to the effective date of their amendment, Laws of Missouri 1971, p. 237. After a verdict of guilty, the court sentenced the defendant to two years in the custody of the State Department of Corrections.

On appeal, defendant first attacks the sufficiency of the evidence to sustain the verdict of guilty. We review the evidence most favorable to the state. State v. Strong, 484 S.W.2d 657, 661(9) (Mo.1972).

Trooper Ashurst of the Missouri State Highway Patrol, in plain clothes and with an informant-companion, drove to a house located in Cape Girardeau, Missouri, to purchase some drugs. Two unidentified females, each about eighteen years of age, admitted the officer and the informant to the house. When they were in the living room, the informant inquired if Scotty was there. Scotty, whose full name is Frederick Scott Leuckel, came into the room and invited the two into a bedroom. Once there, Leuckel asked the patrolman and the informant if they would 'like to buy some good Mescaline'. The patrolman then inquired as to the price, and Leuckel replied that he had 'a hundred hits', the vernacular expression for tablets or doses, for $135.00. When asked about the price of fifty, Leuckel stated it would be $75.00. The patrolman then offered $70.00, and Lueckel replied that he would have to ask 'Dip'. The three returned to the living room, and Leuckel stood in the doorway between the living room and the kitchen and called to 'Dip', a nickname for the defendant McClure. McClure responded to the call and Leuckel repeated the patrolman's offer of $70.00 for fifty tablets to McClure who was then standing in the doorway between the kitchen and the living room. According to the patrolman's testimony, McClure shook his head 'no' and whispered something to Leuckel which the patrolman could not overhear. Leuckel then approached the patrolman and said, 'We'll have to have $75.00, that's our price.' This purchase was consummated by Leuckel handing two plastic bags, each containing twenty-five tablets, to the patrolman who then paid Leuckel. Leuckel, in the presence of McClure, then asked the patrolman if he would like to buy some marijuana. Going back to the bedroom, Leuckel displayed to the patrolman a plastic bag filled with plant material which Leuckel stated was a quarter pound of marijuana. The patrolman inquired as to the price, and after Leuckel consulted with McClure, McClure stated: '$50.00'. The patrolman told them that the price was too high but that he might return later in the evening, and then left with the informant. A chemical analysis of the tablets purchased indicated that they contained lysergic acid diethylamide, commonly known as 'LSD'.

Bearing upon his contention that the evidence was not sufficient to sustain the conviction, the defendant maintains that this evidence does not point so clearly to guilt as to exclude every reasonable hypothesis of innocence. While it is a rule of law in this state that the facts and circumstances relied upon by the state to establish guilt must not be inconsistent with the defendant's innocence unless it points so clearly to his guilt as to exclude every reasonable hypothesis of his innocence (State v. Irby, 423 S.W.2d 800, 802(2) (Mo.1968)), this rule is applicable only where the evidence of the defendant's agency in connection with the crime charged is entirely circumstantial. State v. Allen, 420 S.W.2d 330, 333(1) (Mo.1967); State v. Stead, 473 S.W.2d 714, 716(3, 4) (Mo.1971).

In this case, the defendant was charged with aiding and abetting the unlawful sale of a narcotic drug. It was therefore not necessary for the state to show that the defendant directly participated in all of the essential elements of an illegal sale. State v. Gideon, 453 S.W.2d 938, 939(3) (Mo.1970). Accordingly, direct evidence showing any form of affirmative participation in aid of the unlawful sale is sufficient to support a conviction (State v. Schlagel, 490 S.W.2d 81, 84(2) (Mo.1973)); and direct evidence, of course, eliminates the applicability of the 'inconsistent with innocence' rule.

Section 195.010(30), RSMo 1969, V.A.M.S., defines 'sale' to include 'barter'. Participation in setting the price to be charged for the LSD is necessarily participation in 'barter'. Direct evidence is evidence which, if believed, proves the existence of the fact in issue without inference or presumption (State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43(3) (1948)). Here there is direct evidence of the defendant's participation in setting the price to be charged for the LSD. The trooper heard Leuckel repeating Ashurst's '$70.00 for fifty' offer to the defendant. Immediately after Leuckel repeated this offer to defendant, the trooper saw the defendant shake his head 'no'. No inference or presumption is necessary to determine that a negative head shake given in response to an offer means that the offer was rejected by the defendant. Additionally, the direct evidence of the defendant's participation in the rejection of the offer is strengthened by the fact that after Leuckel's conference with the defendant, Leuckel stuck to his original $75.00 price. Furthermore, in so doing, Leuckel said, 'We'll have to have $75.00, that's our price.' The most reasonable and logical inference to be drawn from Leuckel's use of the first person plural pronouns, 'we' and 'our', is that the defendant and Leuckel were joint participants in the proposed sale of LSD to the patrolman.

The further negotiations with regard to the purchase of some marijuana also indicated direct participation by the defendant in a joint venture to sell drugs. When the marijuana was displayed and the price was asked, Leuckel consulted with the defendant McClure. At this point, it was the defendant McClure who responded: '$50.00', rather than Leuckel. Although this transaction was never completed, its occurrence immediately after the purchase of the LSD was proof that Leuckel and the defendant were joint participants in the common scheme or plan to sell narcotic substances in violation of the law. Evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Adamson, 346 S.W.2d 85, 88(4) (Mo.1961). The test to be applied in such a situation is the logical relevance of the other criminal act to the particular crime charged. If the facts and circumstances surrounding the other criminal act reasonably tend to prove material facts and settle the issues, then they are not to be rejected merely because they incidentally proved the defendant guilty of another crime. State v. Hemphill, 460 S.W.2d 648, 651(4) (Mo.1970). Thus, the testimony which showed that the defendant participated in the attempted sale of marijuana is competent and admissible here to prove his guilt of the specific crime charged; that is, aiding and assisting in the sale of LSD. State v. Page, 395 S.W.2d 146, 150(9) (Mo.1965); State v. Stamper, 159 Mo.App. 382, 141 S.W. 432, 433(5) (1911).

For his second point relied on, defendant McClure contends that it was error for the trial court to admit the testimony of the state patrolman to the effect that during the approximately fifteen minutes he was in the house where the purchase of LSD was made, the two girls who had admitted him to the house sat at the kitchen table with what appeared to be marijuana in front of them, and rolled and smoked cigarettes. We do not reach the contention that this evidence had no probative value and was prejudicial because no objection was made by counsel for the defense to the question as to what the two girls had been doing in the house, nor was any objection made to the answer of the witness. At no later time during the trial did defense counsel request any relief, nor did he ask that the testimony be stricken and the jury instructed to disregard it. A claim of prejudicial error concerning the admission of testimony to which no objection was made at the earliest opportunity after grounds for the objection become apparent cannot be considered on appeal because it is not properly preserved for review. State v. Barker, 490 S.W.2d 263, 275(18) (Mo.App.1973).

We now pass to the third contention of error advanced by defendant which is directed to the action of the trial court in allowing the prosecuting attorney to cross-examine defendant's witness, Scott Leuckel, concerning the harboring or protecting of defendant McClure from the authorities because of McClure's status in the United States Army. This cross-examination commenced by asking a question as to whether Leuckel was protecting McClure from some authorities. Upon objection, the prosecutor explained to the court that he was trying to show interest and bias of the witness. The court overruled objections to this line of questioning, and the prosecutor, upon a negative answer from the witness, then proceeded to ask him whether he knew that McClure was absent without leave from the Army. The defendant contends that this cross-examination was prejudicial to him because there was no evidence to indicate that he was convicted of being absent without leave from the military, and further because...