State v. Ritterbach, 12239

• Decision Date: 22 January 1982
• Docket Number: No. 12239,12239
• Citation: 627 S.W.2d 894
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Harold Dean RITTERBACH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 894

627 S.W.2d 894

STATE of Missouri, Plaintiff-Respondent, v. Harold Dean RITTERBACH, Defendant-Appellant.

No. 12239.

Missouri Court of Appeals, Southern District, Division One.

Jan. 22, 1982.

John D. Ashcroft, Atty. Gen., Steven H. Akre, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Charles M. Wantuck, Springfield, for defendant-appellant.

TITUS, Judge.

In a two count felony information, defendant was charged (1) with selling lysergic acid diethylamide (LSD a/k/a "dragon acid"), a Schedule I controlled substance, to Tim Elliott on February 4, 1980, and (2) with selling methamphetamine ("crystal"), a Schedule II controlled substance, to Tim Elliott on April 8, 1980. A jury was waived. Following trial the court found defendant guilty as charged and sentenced him to ten years of imprisonment on each count to be served concurrently. This appeal ensued.

Tim Elliott (an undercover investigator for the Springfield Police Department), a special agent of the U.S. Treasury Department, and Steve "Doc" Lawrence (a paid police informant) went to defendant's Springfield home at 7 p. m. February 4, 1980. Other persons were present. Elliott and the agent each bought "dragon acid" from defendant and observed him making sales of the substance to others on the premises. In the course of conversing with defendant, Elliott expressed a desire to purchase "crystal" and defendant said he would have some in the near future. The purchases made by Elliott and the special agent were analyzed by the Region II Crime Laboratory in the Springfield Police Department and found to be the Schedule I controlled substance described in Count I of the information.

At 11:30 p. m. April 8, 1980, Elliott and the informant returned to defendant's home and discussed buying "crystal." Defendant said the price would be $230 and when Elliott showed he was possessed of that amount in cash, defendant left the house ostensibly to obtain the substance desired. Upon returning ten minutes later, defendant gave the "crystal" to Elliott who paid defendant $230 therefor. Upon completion of the transaction, Elliott revealed his true identity and arrested defendant. A chemical analysis of the "crystal" showed it consisted of the Schedule II controlled substance described in Count II of the information.

In this appeal defendant includes among his points relied on a complaint that the trial court erred in overruling his motion for judgment of acquittal made at the close of the state's case. However, both defendant and the state have ignored that following denial of the motion, defendant put on testimony in his own case. When the latter occurred, defendant waived any objection to overruling the motion at the conclusion of the state's case. State v. Davis, 611 S.W.2d 384, 386(2) (Mo.App.1981); State v. McCurry, 582 S.W.2d 733, 734-735(2) (Mo.App.1979); Achter v. State, 545 S.W.2d 83, 84(2) (Mo.App.1976).

Defendant's points relied on, written most diffusely, are repetitive and penned in utter disregard of the mandates of Rule 30.06(d). ¹ However, as defendant was not afforded an opportunity via notice to atone for the infractions, we are compelled by Rule 30.09 to either excuse the infringements, or exercise our discretion to consider the points presented under the plain error doctrine. Rule 30.20. Nonetheless, enforced exoneration does not require a verbatim recasting of each point as written-only consideration of what we presume the issues to be.

The contention here that the trial court's finding defendant guilty was not established beyond a reasonable doubt, is amply answered by our summary of facts, supra. At trial, defendant did not contest the state's evidence in this regard in any fashion and on appeal presents no argument whatsoever under this point. On appeal defendant's contentions are (1) defendant's commission of the acts charged were not criminal because he engaged in the proscribed conduct because he was entrapped, (2) defendant, as charged in Count II, did not sell "crystal" to Elliott but only acted as Elliott's agent in procuring the substance and (3) the punishment assessed "was disproportionate to the facts shown in evidence."

Our statute, § 562.066-2, states: "An 'entrapment' is perpetuated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct." Under this law, when the criminal intent originates in the mind of the officer and the defendant is induced or lured into the commission of a crime he was not willing and ready to engage in, then, as a general rule, an entrapment occurs and no conviction may be had. On the other hand, if the criminal intent originates in defendant's mind, it is no defense to the charge that an opportunity is furnished or that an officer aids in the commission of the crime. Wilson v. State, 606 S.W.2d 266, 267(4) (Mo.App.1980).

Defendant's sales of "dragon acid" to Elliott and the special agent on February 4, 1980, was part of a continuing sales operation defendant was then conducting at his home. He sold the substance (with no showing of inducement on the part of the officers) to other parties present at the house both before and after sales were made to Elliott and the agent. With these facts in evidence it was well within the province of the fact trier to find that defendant, freely and without inducement by the officers or the informant, sold the "dragon acid" and that he, without encouragement, was ready and willing to independently engage in such conduct. State v. Collins, 601 S.W.2d 640,...