State v. Welty

• Decision Date: 10 April 1987
• Docket Number: No. 14566,14566
• Citation: 729 S.W.2d 594
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael WELTY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 594

729 S.W.2d 594

STATE of Missouri, Plaintiff-Respondent, v. Michael WELTY, Defendant-Appellant.

No. 14566.

Missouri Court of Appeals,

Southern District,

En Banc.

April 10, 1987.

Motion for Rehearing and to

Transfer Denied and Overruled

May 1, 1987.

Application to Transfer Denied June 16, 1987.

Charles M. Shaw, Shaw, Howlett & Schwartz, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PER CURIAM.

Defendant Michael Welty was convicted, following a jury trial, of conspiracy to commit the offense of sale of marijuana. He appeals from the judgment of that conviction sentencing him to seven years' imprisonment. We affirm.

Defendant and his friend, one Taylor, had been solicited by another acquaintance, Howell, to provide funding for the purchase of a large quantity of marijuana. Howell had been contacted about some marijuana which would be available by an individual who was in fact an undercover informant working for the Federal Drug Enforcement Administration. The informant acted as a messenger for a federal narcotics agent who was posing as the actual seller.

Defendant and Taylor were able to raise "[c]lose to $7,000," with $3,000 furnished by Taylor and the remainder put up by Welty. With this, after it was determined the seller would "break the bale," or permit the purchase of less than a packaged quantity, Howell was to buy "[a]round 23 pounds." Howell delivered the money to the narcotics agent while defendant waited in a nearby truck. After the money was counted, Howell and the defendant were arrested. Taylor, who had adjourned to a lounge in the area to await the completion of the transaction, was also soon arrested. There was no marijuana.

During the trial, the agent, who had extensive experience in the drug enforcement field, testified over objection that five marijuana cigarettes could be made from a gram and that there are 453 grams to a pound. This would indicate that 2,265 cigarettes could be made from a pound and that 23 pounds of marijuana could produce over 52,000 marijuana cigarettes. He also testified to the relatively small numbers of cigarettes that even a heavy marijuana user could consume individually before the product got "dried up and stale."

Defendant's first point is that the evidence failed to establish the charge of a conspiracy to sell marijuana, but at most only a plan and agreement to purchase.

The essence of this argument lies in the fact that no testimony expressly stated an agreement or intention relative to disposing of the marijuana once it was obtained. In the absence of actual possession, it is said that the matter never got beyond a conspiracy to possess the marijuana, particularly in view of the fact there is in Missouri no statutory offense in the nature of possession with intent to sell. Thus, as we understand it, the events are urged to be so attenuated from the object crime of the charged conspiracy that there can be no finding of an agreement to commit that crime. ¹ We believe, however, that a proper understanding of the conspiracy statute, as applied to the facts of this case, demonstrates the lack of merit in the sufficiency argument. In reviewing this point, we are, of course, guided by the familiar principle that the evidence is viewed in the light most favorable to the state, giving the state the benefit of all reasonable inferences based on the evidence, and ignoring evidence and inferences not supportive of the verdict. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. Neal, 685 S.W.2d 271 (Mo.App.1985).

Conspiracy is defined by § 564.016.1, RSMo 1978, as follows:

A person is guilty of conspiracy with another person or persons to commit an offense if, with the purpose of promoting or facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such offense. ²

The adoption of § 564.016 as a part of the Criminal Code of Missouri represents a major reformation of the law of conspiracy. The statute is drawn from § 5.03 of the Model Penal Code. In construing and applying § 564.016, it must be presumed the General Assembly intended to adopt the interpretation of that section contained in the Comments to the Proposed Criminal Code, October, 1973, and the Comments, insofar as applicable, to § 5.03 of the Model Penal Code. John Deere Co. v. Jeff DeWitt Auction Co., 690 S.W.2d 511 (Mo.App.1985). Similarly, we may regard decisions in other states construing statutes of like heritage as persuasive authority. See State ex rel. Philipp Transit Lines v. P.S.C., 552 S.W.2d 696 (Mo. banc 1977).

Perhaps the most significant aspect of the offense now defined by § 564.016.1 lies in the fact that a person can be guilty of conspiracy with one or more other persons to commit a particular offense if, with the requisite purpose "he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such offense." § 564.016.1 (emphasis added). It is clear this language adopts the "unilateral theory of conspiracy." Comments to § 9.020, Proposed Criminal Code for Missouri; Model Penal Code Comments to § 5.03; Garcia v. State, 271 Ind. 510, 394 N.E.2d 106 (1979); State v. Marian, 62 Ohio St.2d 250, 16 Ohio Op.3d 287, 405 N.E.2d 267 (1980).

It must be noted that the Missouri Criminal Code did not go so far as to adopt § 5.03(1)(b) of the Model Penal Code. That subsection provides:

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

....

(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Under that subsection it is apparent an agreement to aid in merely planning the object crime meets the definition. The Missouri Committee and General Assembly may have considered that criminal responsibility for such an agreement was within the ambit of § 564.011 (attempt) when construed with § 562.041 (responsibility for conduct of another).

Nonetheless, the omission of § 5.03(1)(b) of the Model Penal Code does not establish that defendant did not commit the offense proscribed by § 564.016. Under the unilateral theory of conspiracy (a contradiction in terms) it is not essential that two or more persons agree that they will commit an offense. The proscribed offense is committed if a person with the purpose of promoting or facilitating the commission of an offense "agrees" with another person or persons that at least one of them will engage in conduct which constitutes such offense. § 564.016.1. Furthermore, while at least two individuals obviously must be involved when the defendant "agrees," our conspiracy statute "focuses upon the conduct of one person" regardless of the subjective intent of the other. State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982). Accord, State v. Mace, 682 S.W.2d 163 (Mo.App.1984).

Under the unilateral theory as adopted in § 564.016, it is generally considered that the term "agrees" does not require an agreement in the sense of a specific contract founded upon consideration. The requirement imposed by the term "agrees" has received the following expressions.

One might suppose that the agreement necessary for conspiracy is essentially like the agreement or 'meeting of the minds' which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of the word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates agreement.

2 LaFave & Scott, Substantive Criminal Law § 6.4(d) (1986) (footnotes omitted). "It is universally conceded that an agreement need not be express, although whether the idea of an implied agreement connotes only an unspoken, actual consensus or has broader fictional components is by no means clear." Model Penal Code § 5.03 Comment 2(c)(iv) (footnote omitted).

In the Institute's view, neither combination as distinguished from agreement nor the analogy of partnership should be included in the formal definition. If a consensus is demanded, it is clearly indicated by demanding an 'agreement,' which need not, of course, be formal or, indeed, explicit in the sense that it is put in words.

Id. Also see United States v. Mohr, 728 F.2d 1132 (8th Cir.1984), cert. denied, 469 U.S. 843, 105 S.Ct. 148, 83 L.Ed.2d 87 (1984).

Further, it is not required that the offense be established by direct evidence of the understanding or consensus. The clandestine nature of conspiracies usually does not permit direct evidence, and the prosecution must rely on logical inferences drawn from the course of conduct. 2 LaFave & Scott, supra, § 6.4(d). "The agreement can be established by circumstantial evidence and need show 'no more than a tacit understanding among the participants.' United States v. American Grain & Related Industries, 763 F.2d 312, 315 (8th Cir.1985)." United States v. Raymond, 793 F.2d 928, 932 (8th Cir.1986).

Upon review of convictions for bilateral conspiracy to sell drugs, it has been repeatedly held that a jury can properly find an agreement to sell from the circumstances, primarily from the amount of drugs involved. United States v. Prieskorn, 658 F.2d 631 (8th Cir.1981); United States v. Villarreal, 565 F.2d 932 (5th Cir.1978), cert. denied, 439 U.S. 824, 97 S.Ct. 2181, 53 L.Ed.2d 228 (1977); United States v. Brischetto, 538 F.2d 208 (8th Cir.1976); Ridgeway v. State, 422 N.E.2d 410 (Ind.App.1981). The same is true in regard to the analogous...