State v. Miller
|02 October 1979
|STATE of Missouri, Plaintiff-Respondent, v. Charles J. MILLER, Defendant-Appellant.
|Missouri Court of Appeals
John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A. L. Shortridge, Joplin, for defendant-appellant.
The defendant was charged with possession of amphetamines. After a two-day trial, he was found guilty and sentenced to three years imprisonment in accordance with the verdict of the jury. The defendant argues four points on appeal, one of which is the sufficiency of the evidence.
A summary of the facts will be facilitated by the identification of the principals. The defendant was a deputy sheriff with long experience in security and law enforcement. Charles A. Goodwin was chief deputy sheriff. B. W. Forney and Larry Fuhr were also deputy sheriffs, assigned to criminal investigation. David W. Richardson was news director of a local television station. He was a friend of Goodwin. Judy Ryan was a young woman, 24 years of age, and an acquaintance of Richardson.
This case, as most cases do, presents some inconsistencies and conflicts in testimony. This is true not only in respect to the testimony of opposing witnesses, but in respect to the testimony of witnesses called by the same side. However, it is not the function of this court to weigh the evidence and sift out those conflicts and inconsistencies. That is the province of the jury. The jury has announced its determination of the facts by the verdict of guilty. It is for this reason that we must review the evidence most favorable to the state and consider favorable inferences drawn therefrom rejecting the evidence to the contrary. State v. Evans, 545 S.W.2d 694 (Mo.App.1976); State v. McNeal, 539 S.W.2d 722 (Mo.App.1976).
The defendant first became acquainted with Judy when he, along with other officers, served a search warrant at a home Judy was visiting. He said he subsequently saw her at the city jail when she was making a complaint or an inquiry. The defendant stated at this time she solicited marijuana from him and offered him a girl. She did not remember this incident. The defendant and Judy had further contact when the defendant on several occasions brought prisoners to a house where Judy was present. According to Judy, the purpose of at least some of these visits was for the prisoner to visit his girl friend. Also, according to Judy, on some of the visits the defendant supplied beer and vodka and on one occasion joined in smoking marijuana. The defendant had further contact with Judy when she accompanied Richardson to the courthouse to see about recovering her stereo which was being held by the sheriff's office as evidence. While she was waiting in an outer office, according to Judy the defendant asked her to step into an adjoining room. There, the defendant showed her a small bag of mini-whites. At his repeated urging she took a few and he said that there were a lot more where they came from and if she wanted more, "he had a hundred for me and when I was ready, we would make an exchange." He did not directly ask her to have sexual intercourse with him. He did suggest the exchange could be made at a small rural community. He told her to call when she was ready to make the exchange. In reference to the pills, approximately 9,000 to 10,000 at least similar, if not identical, pills were being held in a corn flakes box in the sheriff's office.
Judy gave the pills to Richardson and they discussed the incident with Goodwin. Goodwin discussed the incident and other reports with the sheriff. The sheriff instructed him to investigate the defendant's activities.
While there was no direct testimony, apparently plans were developed to test the defendant through Judy. Final arrangements were made at a meeting held at the television station early in the morning on April 30, 1976. Participating in the meeting were Goodwin, Forney, Fuhr and Richardson. Judy attended the meeting accompanied by her friend Susan Balleau. At the time of trial Susan Balleau had been killed in a car accident. After the meeting the group repaired to a home whose use had been arranged by Susan. From there, again in the early morning, Judy called the defendant and told him she was ready to make the exchange and gave him the address. At approximately 10:20 a. m. the defendant arrived. There was a discussion about the pills and why defendant wanted to go to bed with Judy. To the latter inquiry he replied because she appealed to him. He said he had to investigate a burglary, but would come back. Shortly before noon he returned. As they were upon his previous arrival, Richardson and Forney were hidden upstairs and Goodwin and Fuhr were in a bathroom adjoining the sitting room. A tape recorder had been placed under a couch in that room. The defendant entered and took from his pocket an envelope which he laid on a coffee table. Judy asked if it was all there and defendant said yes. When she asked if he was sure, he picked up the envelope and tore it open, displayed the pills and returned the envelope to the coffee table. The envelope was accompanied by defendant's business card on the reverse side of which had been written "Tom Jones." When the envelope was returned to the table, the officers emerged and defendant was arrested. As will be discussed in more detail, tests were performed on one of the pills and on the dust from the envelope with the result of the identification of amphetamine.
The defendant steadfastly denied his guilt. When arrested, he stated that he was trying to get some information. He repeated that explanation when he was questioned by the sheriff. However, it was not until later that he explained that the pills were vitamins (similar in appearance to the corn flakes box pills) that he had purchased at a drug store. The defendant attacks the credibility not only of Judy, but of Goodwin, Forney and Fuhr. The primary thrust of this attack was centered on the fact that Goodwin on April 29 filed for sheriff and the defendant had previously told him he could not support him. He also asserted that he had done such an outstanding job that the other deputies resented him. He also directly attacked the credibility of yet another deputy, Gary Smith. While the defendant denied the same, Gary Smith testified that, at defendant's request, he went to defendant's home where the defendant asked him to dispose of the evidence being held against him which was in the safe at the courthouse.
The defendant has placed emphasis upon an inconsistency in the description of the envelope involved. Judy testified in her deposition and at trial the envelope defendant took from his pocket was white. Defendant testified it was white. All others testified it was blue. The envelope in evidence is in fact a light blue. The defendant insists that this inconsistency means that there were two envelopes; a white one produced by defendant and a blue one containing the pills in question and produced by some other person. This argument ignores the right of the jury to determine that Judy and the deputy sheriffs were talking about the same envelope, which Judy described as a different color. The jury's determination is supported by the evidence. Referring to the envelope defendant had taken from his pocket, Judy clearly testified that that envelope was on the table when the deputies came from the bathroom. The defendant's testimony established that as he folded the envelope which he had torn open, the bathroom door opened and he laid the envelope on the coffee table. The defendant denied that he had blue envelopes in his possession. The testimony of Deputy Fuhr established that blue envelopes, at least similar to the one in question, were found in the front and in the trunk of defendant's automobile.
The defendant's explanation, his attack upon the credibility of the state's witnesses and his emphasis upon the inconsistencies were all vigorously and ably presented to the jury. The jury resolved these issues against him and their resolution is supported by the evidence. "It was the jury's province to resolve any conflicts in the evidence." State v. Smart, 328 S.W.2d 569, 573 (Mo.1959). This court has no authority to determine otherwise.
The defendant insists that the state did not present evidence sufficient to support a determination that the pills contained amphetamine. As stated, the envelope contained approximately 100 pills. A qualified chemist performed three tests upon a pill and upon a quantity of dust from the envelope. The tests demonstrated the substances contained a mixture of amphetamine and caffeine. He did not perform a quantitative analysis to determine the relative proportion that was amphetamine. On cross-examination the chemist admitted the proportion could have been 1/2% Amphetamine and 991/2% Caffeine. But, the chemist stated that amphetamine is distinctive because of its molecular structure; that it is inappropriate to refer to the strength of amphetamine. A molecule of amphetamine is a molecule of amphetamine and the term strength is properly applied to the percentage of amphetamine molecules in a given mixture. The defendant presented the testimony of a pharmacist. He gave the structure of a molecule of amphetamine as defined in the United States Dispensatory as C 9H 13N and specifying that amphetamine must contain 98% Of that formula. The "IP" required not less than 97% Of C 8H 13N. The druggist in speaking of a pill that had to have something to hold it together said that if the pill didn't have 96% To 98% Of that formula it wouldn't be amphetamine. It seems apparent the druggist was speaking of the purity required before a substance should be considered as pure amphetamine. His further testimony...
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