State v. Morris

• Decision Date: 03 March 1983
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Clayton Virgil MORRIS, Defendant and Appellant. and STATE of North Dakota, Plaintiff and Appellee, v. Gail John WANNER, Defendant and Appellant. os. 865, 870.
• Court: North Dakota Supreme Court

Page 48

331 N.W.2d 48

STATE of North Dakota, Plaintiff and Appellee, v. Clayton Virgil MORRIS, Defendant and Appellant. and STATE of North Dakota, Plaintiff and Appellee, v. Gail John WANNER, Defendant and Appellant.

Cr. Nos. 865, 870.

Supreme Court of North Dakota.

March 3, 1983.

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee State of N.D.

James A. Reisnour, of Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant Clayton Virgil Morris.

Irvin B. Nodland, of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendant and appellant Gail John Wanner.

VANDE WALLE, Justice.

Gail John Wanner and Clayton Virgil Morris appealed from the respective judgments of conviction entered against them by the Stutsman County district court. Wanner and Morris were charged with the crime of possession of a controlled substance with intent to deliver in violation of Section 19-03.1-23(1) of the North Dakota Century Code. Following a joint trial by jury, Wanner was found guilty of possession of marijuana with intent to deliver, and Morris was found guilty of the lesser included offense of possession of less than one-half ounce of marijuana. We affirm.

On February 3, 1981, Leon Okerlund and Ardel Wolff, detectives for the Jamestown police department, together with Jack Miller, the chief deputy and county investigator for the Stutsman County sheriff's department, traveled to Medina in an unmarked car and wearing civilian clothes to investigate a tip they had received that a drug transaction was to take place there. The informant apparently did not identify the parties who would be involved in the drug deal, but did describe the vehicles they would be occupying: a brown Ford car with taillights which extended across the full width of the rear, and a green van.

When the policemen arrived in Medina, they saw a brown Ford Thunderbird, which had taillights across the entire back of the car, driving around the streets of the town. The Thunderbird eventually stopped and its three occupants entered a nearby bar. Detective Wolff followed the three suspects into the bar and overheard one of them announce to the bartender that if people in a green van came into the bar, he should tell them to look for him and his friends at the other bar in town.

After the people in the Thunderbird went into the other bar, the police officers began looking for the green van. While parked at the south end of Medina, the officers observed a green van come off Interstate 94 and drive into Medina. They followed the van to downtown Main Street where it parked diagonally to the curb. Miller, who was driving the unmarked police car, pulled up to the right of and next to the green van, and then suddenly the Thunderbird pulled up to the right of and next to Miller.

As Miller was parking next to the van, the passenger door opened, and the headlights of the car shone into the van making it possible for him to see there were beer cans on the "console" between the driver's and the passenger's seats. ¹ Coming out of the passenger door was Morris, who had been sitting in the passenger's seat, and Wanner, who had been riding in the back of the van. Officer Miller walked to the passenger's side of the van to take a closer look at the interior and observed what he believed to be some loose marijuana in a clear cellophane package and a marijuana cigarette. ² Miller and Okerlund were not sure whether to call the area in the van where this marijuana was located the "dash" or the "console." Even so, Miller's and Okerlund's testimony at trial made it clear the marijuana in question was in open view in the console area next to the beer cans, which would be somewhere between the two front seats on or near the cover over the motor.

Upon discovering the marijuana, the officers had the van driven to the Medina fire hall where they conducted a thorough search of the interior. The search produced an opaque, brown paper bag containing a large quantity of marijuana which was later determined to weigh 444.3 grams, or approximately one pound. The bag was found on the floor of the van behind the console and between, but near the back edge of, the two front seats.

Following the search, Wanner, Morris, and Blake Graff, the owner/driver of the van, were arrested and taken to the Stutsman County jail. At the jail, the deputy on duty carried out a routine inventory of the three men's possessions and discovered a folded piece of paper in Wanner's wallet. Various words, abbreviated words, figures, and calculations were written on the paper. The word "pot" occurred in two separate places. The piece of paper was initialed by the deputy jailer, given to Officer Miller, and later introduced at trial as State's Exhibit 5. The following reproduction of State's Exhibit 5 shows the two places where the word "pot" appeared on the paper:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

I

Expert testimony was given by law-enforcement officials at trial concerning the amount of marijuana which in their opinion a person would have in his possession for personal use as opposed to for sale. The foundation prepared for each official's testimony showed him to be well trained and experienced. Each testified to having had a variety of contacts, either through arrests or undercover work, with both drug sellers and drug users. All of them gave the opinion, based upon these experiences, that a person in possession of one pound of marijuana would normally have it for sale rather than for personal use.

Wanner now contends that the trial court erred by permitting the law-enforcement officers to give their opinion on this matter.

Rule 702, N.D.R.Ev., which governs the use of expert testimony, states:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." [Emphasis added.]

In Stein v. Ohlhauser, 211 N.W.2d 737 (N.D.1973), this court had an opportunity to discuss the proper application of Rule 702 and said in the court's syllabus:

"1. In order to establish a foundation for expert testimony, a showing must be made that the subject matter is one where expert testimony is accepted by the scientific community and the courts and that the proffered expert has sufficient expertise to aid the jury in the area of his competence."

Wanner argues from this proposition that if the testimony being offered is not of a type generally accepted by the scientific community, it should not be received in evidence. Wanner's argument unduly and unjustifiably restricts the scope of Rule 702.

Rule 702, N.D.R.Ev., is based upon Rule 702 of the Federal Rules of Evidence. See Explanatory Note, Rule 702, N.D.R.Ev. The Notes of the Advisory Committee on Proposed Rules which accompany Federal Rule 702 state, in relevant part:

"The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by 'knowledge, skill, experience, training or education.' " [Emphasis added.]

This explanation of the intended scope of Rule 702 makes it fairly obvious that our statement in Ohlhauser was restricted to the pertinent facts of the case. The expert testimony offered in Ohlhauser concerned a matter of physics, a systematic and exact discipline; in short, it concerned a matter of science.

At no time in the present case did the State pretend to offer expert testimony on a matter of science. To the contrary, the State in preparing a foundation for the expert testimony emphasized the special knowledge of the law-enforcement officials which they had acquired through extensive experience with drug sellers and users.

We believe that an experienced, well-trained, and knowledgeable law officer may give his opinion that a certain quantity of marijuana would normally be possessed for purposes of sale rather than for personal use. People v. Newman, 5 Cal.3d 48, 95 Cal.Rptr. 12, 484 P.2d 1356 (1971); State v. Marks, 337 So.2d 1177 (La.1976). See also State v. O'Mealey, 95 Idaho 202, 506 P.2d 99 (1973). Accordingly, we conclude the trial court did not err in permitting the officials to testify that in their opinion the possession of one pound of marijuana is usually intended for sale.

II

Wanner and Morris maintain there was insufficient evidence to justify the jury's verdict of guilty. Both suggest their convictions were based on the mere circumstance that they were passengers in a van where marijuana was found.

When asked to review the evidence presented at trial to determine if it is sufficient to sustain a conviction, we will examine the evidence in the light most favorable to the verdict to see if a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. State v. Manke, 328 N.W.2d 799 (N.D.1982); State v. Olson, 290 N.W.2d 664 (N.D.1980); State v. Larson, 274 N.W.2d 884 (N.D.1979).

To convict an accused of unlawful possession of marijuana, the State must prove (1) the accused had possession of marijuana. See State v. Rippley, 319 N.W.2d 129 (N.D.1982); Section 19-03.1-23(3), N.D.C.C. To convict an accused of possession of marijuana with intent to deliver, the State must prove in addition to (1) that (2) the accused possessed the marijuana with the intent to deliver it. See Rippley, supra, 319 N.W.2d at 133; Section 19-03.1-23(1), N.D.C.C.

Possession may be actual or constructive, exclusive or joint [ Larson, supra, 274 N.W.2d at 886 (Burdick, Supreme Court Commissioner, concurring specially) ], and may be shown entirely by circumstantial evidence [ Olson, supra, 290 N.W.2d at 670...