State v. Perkins

• Decision Date: 12 April 1983
• Docket Number: No. 45404,45404
• Citation: 650 S.W.2d 339
• Parties: STATE of Missouri, Respondent, v. Ricky Allen PERKINS, Appellant.
• Court: Missouri Court of Appeals

Page 339

650 S.W.2d 339

STATE of Missouri, Respondent, v. Ricky Allen PERKINS, Appellant.

No. 45404.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 12, 1983.

Thomas R. Motley, Public Defender, Hannibal, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for respondent.

REINHARD, Judge.

Defendant appeals after his conviction, by a jury, of sale of a controlled substance in violation of § 195.020, RSMo. 1978 (current version at § 195.020, RSMo. Supp.1982). The jury assessed punishment of seven years' imprisonment and the court sentenced defendant accordingly.

The state introduced evidence of the following facts. On February 13, 1981, three undercover police officers parked their car in front of a pool hall in Mexico, Missouri. They called defendant over to their car and asked him if he knew where they could get some marijuana. Defendant indicated he might be able to get them a bag "if this dude shows up." Defendant indicated a bag of marijuana would cost about $50.00 and asked if he could contribute $10.00 of that price for a proportionate share of the grass. At that point, an automobile driven by Tony Henderson pulled onto the parking lot and defendant said, "There is the dude now," and went over and spoke to Tony Henderson. Defendant returned to the officers' car and said he could get the marijuana but he needed the money first. One of the officers gave defendant $40.00. Defendant then went back over to Henderson's car. Henderson drove away, and defendant returned to the officers' car. When Henderson returned a few minutes later, defendant went over to Henderson, then came back to the officers' car, and took his share of the marijuana and gave the officers the remainder of the bag. At trial, defendant presented no evidence but, through his counsel, conceded he had been in possession of $10.00 worth of the marijuana but denied that he had made a sale.

In his first point on appeal, defendant contends the trial court erred in not submitting to the jury an instruction on the lesser included offense of possession of marijuana. The court submitted only an instruction on the offense of sale of marijuana which carries a greater penalty than possession. § 195.200, RSMo. 1978 (current version at § 195.200, RSMo. Supp.1982).

Defendant has not properly preserved this point for appeal. He failed to include the point in his motion for new trial as required by Rule 29.11(d), and he failed to set out the instruction in question in the argument portion of his brief as required by Rule 30.06(e). Therefore, the point is not subject to review. State v. Swink, 620 S.W.2d 63, 64 (Mo.App.1981); State v. Burnette, 549 S.W.2d 352, 353 (Mo.App.1977). Further, we find that defendant is entitled to no relief under the plain error doctrine set forth in Rule 30.20. In State v. Houston, 542 S.W.2d 85 (Mo.App.1976), faced with facts similar to the facts of this case, this court held that an instruction on possession was not required because "[t]here was no evidence by either the State or defendant from which the jury could find defendant's offense was mere possession." Id. at 87. The same is true in this case. Thus, the court's failure to give the possession instruction was not error and certainly was not plain error.

In his second point on appeal, defendant argues there was insufficient evidence to show he had the required intent or that he aided or encouraged Henderson in committing the offense. We rule this point too against the...