State v. Smith, 13695

• Decision Date: 03 April 1985
• Docket Number: No. 13695,13695
• Citation: 688 S.W.2d 813
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ricky Randall Rex SMITH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 813

688 S.W.2d 813

STATE of Missouri, Plaintiff-Respondent, v. Ricky Randall Rex SMITH, Defendant-Appellant.

No. 13695.

Missouri Court of Appeals Southern District, Division Three.

April 3, 1985.

John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Roy W. Brown, Bruce B. Brown, Brown & Brown, Kansas City, for defendant-appellant.

TITUS, Judge.

Defendant was jury-convicted of the felony of possessing more than 35 grams of marihuana. § 195.020. ¹ The jury assessed punishment at imprisonment for a term of five years. § 195.200.1(1)(b). Judgment was accordingly entered and defendant appealed.

Brent Short had been employed as a mechanic at a West Plains garage "right after the first" of 1983. From the time of his employment until April 22, 1983, the garage employees had been working on a Renault said to be owned by Jollie Smith, a brother of defendant. On April 22 Short had driven the car to his home to put mileage on the vehicle so the head gasket could be "retorqued." Short's employer called with instruction to drive the Renault to the garage so it could be test driven. After Short arrived at the garage, Jollie got into the driver's seat with Short in the front passenger seat. Just as they were leaving, defendant ran from the garage stating "that he was going too." However, before the test drive got underway, defendant left the Renault and went to the car in which the Smith brothers had arrived for the announced purpose of getting "the goody box." When defendant and the "goody box" (described as a "metal candy can") were ensconced in the Renault's back seat, the trio proceeded in the Renault towards the Thayer-Koshkonong area. While en route to that destination, defendant poked Short in the ribs with what was assumed to be a gun and told Short to "Get out." As Jollie slowed the speed of the Renault and pulled onto the highway's shoulder, Short "kicked the door open and rolled out of the vehicle." Jollie and defendant "took off down the highway."

Short reported the incident to the authorities and soon thereafter the Renault was stopped at a church parking lot in Alton, Oregon County. Jollie and defendant were told to evacuate the car. When the pair did so, defendant fled the scene on foot and escaped injury from two fired shots. When the Renault was searched "the goody box" was found and later examination revealed it contained marihuana weighing 55.6 grams. Four law officers testified concerning the search of the Renault, the discovery of the "goody box," the retrieval of its spilled contents from the car and the weighing thereof, its transportation to the Missouri Highway Patrol Laboratory for testing and its return to be used as trial evidence.

Defendant and his two brothers, Jollie and Rowdy, testified that on the night in question they went in Rowdy's car to the West Plains garage concerning the Renault. Each stated there had never been a "goody box" in Rowdy's car which had been transferred to the Renault.

Defendant has not challenged the sufficiency of the evidence to support the jury's verdict. Nonetheless, in his first point relied on defendant claims the trial court erred in admitting the marihuana exhibits into evidence (1) because the alleged careless handling of the "goody box" prevented him from obtaining fingerprints therefrom to demonstrate he had not handled the can and (2) because the evidence of the chain of possession of the contents of the "goody box" was insufficient to provide a reasonable assurance that the contents had not been altered or substituted.

Even in a circumstantial case, the prosecution is not required to conclusively establish guilt or exclude every hypothesis of innocence. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). We do not view the instant case as a case predicated wholly upon circumstantial evidence as state's witness Short directly testified that defendant had, in fact, obtained the "goody box" from brother Rowdy's car and transferred it to the Renault where it was ultimately discovered by the authorities. Also, the record reveals that after the lawmen had been advised of Short's forcible ejectment from the Renault by defendant and Jollie, and had stopped the vehicle, they discovered the "goody box" and its contents in the Renault and observed defendant's flight from the scene. The supposed presence or absence of any designated person's readable fingerprints on the "goody box" would not, per se, absolutely contradict or disprove the testimony of Short and the officers. In any event, defendant's supposition as to what an unadulterated examination of the "goody box" might have demonstrated smacks of the same speculation and conjecture as found in the pronouncement that "If the dog hadn't stopped to scratch, he would have caught the rabbit."

Admittedly there were minor contradictions and inconsistencies in the testimony of the officers who searched the Renault as to which particular officer or officers had up-ended the "goody box" or spilled its contents and which particular officer or officers had sacked the spilled marihuana and placed it in evidence bags. Nevertheless, there was ultimate agreement that the "goody box" and its contents were found inside the Renault and that the contents had been put into marked evidence bags which were transported to the laboratory and there declared to contain marihuana. The lesser discordancies noted, supra, did not prevent the remainder of the testimony from being substantial. Such inconsistencies and contradictions were matters properly left for determination of the jury as fact finder. State v. Ivy, 642 S.W.2d 128, 130 (Mo.App.1982). The evidence of the chain of possession of the contents of the "goody box" was sufficient assurance, as the jury obviously found, that said contents had not been altered or substituted. Defendant's first point is denied.

Defendant's second point relied on claims the trial court erred in failing to instruct on the possession of 35 grams or less of marihuana [§ 195.200.1(1)(a) ] because it is a lesser included offense of possessing more than 35 grams thereof as denounced by § 195.200.1(1)(b).

Defendant frankly acknowledges his inability to find any case specifically holding that possession of 35 grams or less of marihuana is a lesser included offense of possessing more than 35 grams of the substance. However, he relies on § 556.046.1 which, in part, provides that a defendant may be convicted of an offense included in the offense charged provided "(1) It is established by proof of the same or less than all the facts required to establish the...