State v. Netzer

• Decision Date: 16 March 1979
• Docket Number: Nos. 10874,10875,s. 10874
• Citation: 579 S.W.2d 170
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kelly NETZER and Jeff Netzer, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 170

579 S.W.2d 170

STATE of Missouri, Plaintiff-Respondent, v. Kelly NETZER and Jeff Netzer, Defendants-Appellants.

Nos. 10874, 10875.

Missouri Court of Appeals, Southern District, Division Two.

March 16, 1979.

John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

John A. Watkins, Greenfield, for defendants-appellants.

MAUS, Judge.

Kelly Netzer was charged in separate cases with cultivating and growing marijuana on the Westle Place and growing marijuana on the old Bartling Place. Jeff Netzer was charged in a separate case with cultivating and growing marijuana on the old Bartling Place. Kim Jeffreys Netzer (wife of Kelly Netzer) was charged in a separate case with cultivating and growing marijuana with no specification of location other than Dade County. By agreement the four cases were consolidated and tried before a jury. The jury found Kim Jeffreys Netzer not guilty. The jury found Kelly Netzer and Jeff Netzer guilty of the charged offenses in respect to the old Bartling Place. No verdict was returned on the charge against Kelly Netzer in respect to the Westle Place (which charge was amended during trial to refer to the R. Netzer Place). The state then dismissed this charge. Kelly Netzer and Jeff Netzer appeal. The cases have been consolidated for briefing and opinion.

With emphasis under point IV (asserting in general terms the insufficiency of the evidence) the defendants attack the credibility of the testimony of Brad Westlake. Westlake was a colleague of defendants. He was arrested for selling marijuana to an undercover agent. Initially he assumed sole responsibility for growing the marijuana in question. After considerable interrogation, he recanted and implicated the defendants in this case. He cooperated with the authorities in making another case. He did receive favorable treatment from the authorities. His testimony provides the link between that marijuana and the defendants. Irrespective of any individual attitude concerning Westlake's testimony, his credibility was for the jury. In view of the verdicts, this court must view the evidence most favorable to the state and consider favorable inferences to be drawn from this evidence rejecting any evidence to the contrary. State v. Evans, 545 S.W.2d 694 (Mo.App.1976). A summary of the evidence, so viewed, follows.

Westlake was originally from Iowa. He had considerable experience with and knowledge of drugs, as that term is used in the context of this case. He came to Missouri to act as "roady" for a band. For a period of time he lived at the Westle Place with Kelly Netzer, Kim Jeffreys Netzer and another individual. He left at the request of the owner (Kelly's father). While living at the Westle Place he smoked a lot of pot.

Westlake's testimony was that in February he, Kelly and Kim went to the R. Netzer place, turned the soil and planted marijuana seeds at a location not visible from the road. Westlake and Kelly returned on four or five occasions to look at the plants and on one occasion broke clods and pulled weeds. When the authorities visited the tract April 23 or 24 they pulled 1800 to 1900 plants approximately 8 to 20 inches in height.

Westlake's further testimony was that about March 1 he, Kelly and Jeff went to the old Bartling Place. Each selected a separate plot and turned the soil and planted marijuana seeds in their respective plots. Westlake talked to them about the marijuana at that time. When the authorities visited the tract May 7 they pulled marijuana plants from each of the plots. It was estimated there were 1000 plants on the tract, six to eight inches in height.

Kelly Netzer testified. He said Westlake was mad at the Netzer family because he was forced to move; Westlake damaged the dwelling that Kelly was improving and with his fist broke the windshield in Kelly's car. Kelly did not testify concerning whether or not he cultivated or grew marijuana.

Jeff Netzer also testified. He said he knew what he was accused of, but he had never grown marijuana. He also said he wouldn't know marijuana if he saw it. But, he said he had seen no marijuana at the R. Netzer or old Bartling Place. He had been to the old Bartling Place a long time ago. He first said he knew of Westlake, but later said he didn't know him very well.

Defendants' first point is that there is no statute prohibiting the growing or cultivation of marijuana. By argument they assert that the process of statutory construction necessary to reach such a prohibition is too intricate to find it was the intent of the legislature to prohibit such acts and, inferentially, the prohibition is too vague. A statute will withstand such attack if it is " 'sufficiently explicit, in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty, fix an ascertainable standard of guilt, and make known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " State v. Crawford, 478 S.W.2d 314, 317 (Mo.1972), U.S. reh. den. 409 U.S. 1051, 93 S.Ct. 536, 34 L.Ed.2d 505.

§ 195.020 of the Uniform Controlled Substances Act (Chapter 195, RSMo 1969, V.A.M.S.) provides: "It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, distribute, or compound any controlled or counterfeit substance . . .." By definition, § 195.010(19) "manufacture" includes production. By further definition, § 195.010(28) "production" includes the manufacture, planting, cultivating, growing or harvesting of a controlled substance.

We are in agreement with defendants to the extent of considering the language and structure of the Act to be less than a model of clarity in several respects. The same may be said of many enactments, for example the Internal Revenue Code. However, the fact that an act requires more than a quick glance for full comprehension does not cause it to be invalid. People v. Latsis, 578 P.2d 1055 (Colo.1978). "Because it is necessary to refer to other subchapters in order to determine the exact nature of the offense charged does not make the penal statute unconstitutionally vague." United States v. Little, 321 F.Supp. 388 (D.C.Del.1971). The provisions of the Act, a comprehensive code, must be construed together. Welborn v. Southern Equipment Company, 386 S.W.2d 432 (Mo.App.1964). § 195.020 does by statutory construction forbid cultivating or growing marijuana. Patty v. State, 260 Ark. 539, 542 S.W.2d 494 (1976); Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976).

Defendants' second point is that their motion for acquittal should have been sustained because the state did not prove that the marijuana was grown for other than personal use. This argument is based upon § 195.010(19) which is the definition of manufacturing and contains the following language: "means . . . except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use . . .." Defendants' argument fails for two reasons.

First, § 195.180 of the Act provides: "In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of (the) law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant." The burden of proof of the alleged exception was upon defendants. State v. McAllister, 468 S.W.2d 27 (Mo.1971); State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977).

Second, the claimed personal use exception applies only to "preparation and compounding" and not to cultivating and growing. Patty v. State, supra; Bedell v. State, supra.

Defendants offered an instruction using the term "manufactured" rather than "cultivated and grew" and requiring the jury to find the defendant manufactured marijuana for other than his own use. Defendants' third point is error in refusing this instruction and giving verdict directing instructions using the terms "cultivated and grew". Defendants in their brief did not as required by Rule 84.04(c) set forth the instructions under consideration. We are therefore not required to consider this allegation of error. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Crowell, 560 S.W.2d 889 (Mo.App.1978). Nevertheless, we have examined the proffered instruction and find that it placed the burden upon the state to prove the inapplicability of an exception which did not pertain to the charge. It was not error for the court to refuse such an instruction which did not correctly declare the applicable law. State v. McCoy, 530 S.W.2d 8 (Mo.App.1975).

The defendants also allege error because the verdict directing instructions used the terms "cultivated and grew" rather than "manufactured". It is true MAI-CR 14.10 provided as alternative choices for the submission of the prohibited act the terms used in § 195.020 such as "possessed" or "manufactured." Of course, if an applicable instruction is provided in MAI-CR the use of another instruction is error, its prejudicial effect to be judicially determined. Rule 20.02(e). We do not necessarily construe the use of "cultivated and grew," terms included in the statutory definition of "manufactured," to be a deviation from MAI-CR. Had the instructions used "manufactured," as so used that term is a legal or technical term, and it should have been defined in statutory language. State v. Smith, 342 S.W.2d 940 (Mo.1961); State v. Hurvey, 544 S.W.2d 593 (Mo.App.1976). Even if the use of "cultivated and grew" was a deviation, which we need not decide, the verdict directing instructions submitting the offense in the language of the...