State v. Munson, 67959

• Decision Date: 15 July 1986
• Docket Number: No. 67959,67959
• Citation: 714 S.W.2d 515
• Parties: STATE of Missouri, Respondent, v. Roger Kevin MUNSON, Appellant.
• Court: Missouri Supreme Court

Page 515

714 S.W.2d 515

STATE of Missouri, Respondent, v. Roger Kevin MUNSON, Appellant.

No. 67959.

Supreme Court of Missouri En Banc.

July 15, 1986.

Rehearing Denied Sept. 16, 1986.

Loren R. Honecker, Springfield, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.

BLACKMAR, Judge.

Governments at all levels are engaged in an apparently losing battle against "controlled substances," variously known as drugs, narcotics, and "dope." In the possibly wishful thought that it would aid in the battle, the Missouri General Assembly, in 1982, adopted portions of the "Model Drug Paraphernalia Act." ¹ This is our first case dealing with the 1982 legislation.

The defendant, Roger K. Munson, was the proprietor of a store in Springfield known as Impulse General Store. It is charged in the information that he

unlawfully possessed with the intent to deliver drug paraphernalia, to-wit: cocaine kits, cocaine spoons, manitol (sic) cutting agent, smoking devices, roach clips, and other numerous items, which he knew, or reasonably should have known, would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body, a controlled substance or an imitation controlled substance.

He waived a jury and stood trial before Judge Donald E. Bonacker, who found him guilty as charged. The trial judge set out his detailed findings in a helpful opinion. Munson was sentenced as a prior offender to a term of eight years.

He appeals, alleging: (1) that the statute is so vague and overbroad as to deprive persons in his position of liberty and property without due process of law; (2) that the evidence was prejudicially tainted by an unlawful search; and (3) that the evidence does not support the conviction. It is because of the first allegation that we have initial appellate jurisdiction. We find no basis for reversal in any of the appellant's points, and affirm the conviction.

1. Vagueness and Overbreadth

The defendant argues that the statutes provide "neither fair notice of what conduct is prohibited nor explicit standards for enforcement."

The punitive provisions are set forth in § 195.020.3, RSMo Supp.1984, as follows:

It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of this chapter.

Section 195.010(11), RSMo Supp.1984, sets forth a lengthy definition of "drug paraphernalia," which follows in pertinent part and with emphasis supplied:

"Drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or an imitation controlled substance in violation of this chapter. It includes, but is not limited to:

(a) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(b) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances or imitation controlled substances;

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(e) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances or imitation controlled substances;

(f) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances or imitation controlled substances;

(g) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana;

(h) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances or imitation controlled substances;

(i) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances or imitation controlled substances;

(j) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances or imitation controlled substances;

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(1) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

b. Water pipes;

c. Carburetion tubes and devices;

d. Smoking and carburetion masks;

e. Roach clips meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

f. Miniature cocaine spoons and cocaine vials;

g. Chamber pipes;

h. Carburetor pipes;

i. Electric pipes;

j. Air-driven pipes;

k. Chillums;

l. Bongs;

m. Ice pipes or chillers.

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The state concedes that all, or nearly all, of the listed articles may have uses not related to illegal controlled substances. Subsection (11) goes on to list matters which the trier of the fact may consider in determining whether a particular item "is drug paraphernalia," in the following language In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(a) Statements by an owner or by anyone in control of the object concerning its use;

(b) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance or imitation controlled substance;

(c) The proximity of the object, in time and space, to a direct violation of this chapter;

(d) The proximity of the object to controlled substances or imitation controlled substances;

(e) The existence of any residue of controlled substances or imitation controlled substances on the object;

(f) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who * he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to direct violation of this chapter shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(g) Instructions, oral or written, provided with the object concerning its use;

(h) Descriptive materials accompanying the object which explain or depict its use;

(i) National or local advertising concerning its use;

(j) The manner in which the object is displayed for sale;

(k) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(l) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;

(m) The existence and scope of legitimate uses for the object in the community;

(n) Expert testimony concerning its use;

Similar statutes have consistently been held to be valid, as against charges of unconstitutional vagueness. ² Most of the cases involve challenges to the facial constitutionality brought in advance of prosecution. Some involve regulatory or licensing statutes which do not provide criminal sanctions. Because the defendant's challenge comes in the setting of a criminal prosecution, we examine his contentions at length.

He complains because the statutory enumeration of evidentiary factors which may be considered is not exclusive. The fallacy in this argument is that a criminal statute seldom lists the evidentiary considerations which may be appropriate. The trier of the fact, then, may make use of such items of direct and circumstantial evidence as may be admissible, relevant and material. Certainly the legislature's opinion as to the value of certain items of evidence is entitled to substantial weight, but the ultimate question of the sufficiency of evidence is one for the courts to decide. ³ The statute is not impermissibly vague because of the listing of evidentiary factors.

Most of the defendant's remaining arguments about vagueness are flawed by overemphasis on the listed evidentiary factors. One complaint is that the statute does not say how many of these factors must be shown. There is no need to specify a number. Quality is more important than quantity. The ultimate question for the trial and reviewing courts is whether the record, without regard to the statutory enumeration, contains "substantial evidence" supporting each essential element of the offense charged. The suggestion that some of the listed factors are themselves vague, for this reason, demonstrates no ground for holding the statute unconstitutional. A factor which is impermissibly vague may simply be disregarded in analyzing the sufficiency of the evidence to support the judgment....