State v. Winters

• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Citation: 525 S.W.2d 417
• Parties: STATE of Missouri, Respondent, v. Loren WINTERS, Appellant. 26801.
• Court: Missouri Court of Appeals

Page 417

525 S.W.2d 417

STATE of Missouri, Respondent, v. Loren WINTERS, Appellant.

No. KCD 26801.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

Motion for Rehearing and/or Transfer Denied May 6, 1975.

Howard L. McFadden, Circuit Public Defender, Jefferson City, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special JJ.

ROBERT R. WELBORN, Special Judge.

Appeal from judgment and sentence to eight years' imprisonment, imposed under Second Offender Act, upon jury verdict, finding Loren Winters guilty of selling amphetamine, a controlled substance.

On November 14, 1972, an undercover agent of the Jefferson City Police Department told other officers that he had arrangements to make a purchase of 'speed.' The undercover agent and other officers met at a Jefferson City motel, where the agent was 'strip searched,' his money taken from him and he was given a $20 bill. A radio transmitter was taped to the agent's back.

The agent drove downtown where he parked and entered a bar. Police officers followed him in an unmarked car and parked across the street.

The agent sat at a table in the bar with appellant Loren Winters, whom he had known previously, Donna Hunt and a fourth person. Winters asked the agent if he 'still wanted some.' The agent said 'Yes,' and suggested they take a ride. The agent, Winters and Miss Hunt went to the agent's auto. He and Winters got in the front seat and Miss Hunt in the rear. The agent drove around the block three times, with the unmarked police car following.

Winters removed a plastic container with about 40 red 'pills' in it and asked the agent how much he wanted. The agent said, 'About $10 worth.' Winters said they were $1.50 apiece so the agent asked for six, and gave Winters a five and four one dollar bills. After the sale had been completed, Winters and Miss Hunt were let out of the auto in front of the bar. The agent advised the other officers that 'Everying was completed.'

The agent and other officers returned to the motel. There the agent was again 'strip searched.' The capsules which he had purchased were taken to the police station where a 'Nartec' field test showed the capsules had an amphetamine content. The capsules were turned over to a chemist at the Missouri State Highway Patrol Technical Laboratory for examination.

Winters was charged with illegal sale of a controlled substance: six capsules of amphetamine. §§ 195.020, 195.017, RSMo Supp.1973, V.A.M.S. The agent, one of the police officers and the highway patrol chemist testified at the trial. Appellant testified and denied that he made the sale. Miss Hunt testified on behalf of appellant that no sale was made while she was in the auto. After the trial court found that appellant was subject to the Second Offender Act, the jury found him guilty as charged and the court fixed him punishment at eight years' imprisonment under § 195.200, subd. 1(4), RSMo Supp.1973, V.A.M.S.

On this appeal the first contention of appellant is that he was sentenced under an inappropriate section of the statutes. This contention is based on the proposition that by § 195.017, subd. 6(2)(a), RSMo, supra, amphetamine is a Schedule III controlled substance, and that its illegal sale, in violation of § 195.240 is punishable, under § 195.270, by a term of from two to ten years in the penitentiary, a jail term of not more than one year, a fine of not more than $1,000, or both the jail term and fine. § 195.200, subd. 1(4), under which the court sentenced appellant, fixes the punishment at from five years to life imprisonment.

The state offered in evidence 'Missouri Controlled Substances Regulations,' promulgated by the Division of Health, dated October 4, 1972, which classified amphetamine as a Schedule II controlled substance. Appellant argues that § 195.017, subd. 6(2)(a), classifies amphetamine as a Schedule III controlled substance and that the Division of Health had no authority to classify amphetamine under a schedule different than that prescribed by the legislature. Appellant relies on the language of § 195.015, subd. 1, authorizing the Division of Health to 'add' substances to the schedules and argues that this authority applies to newly discovered substances. Appellant argues that no authority is granted to 'subtract' a substance from an existing schedule.

This argument ignores subparagraph 4 of § 195.015, which provides:

'If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the division of health, the division of health shall similarly control the substance under sections 195.010 to 195.320 after the expiration of thirty days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty day period, the division of health objects to inclusion, rescheduling, or deletion. In that case, the division of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the division of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under sections 195.010 to 195.320 by the division of health, control under sections 195.010 to 195.320 is stayed until the division of health publishes its decision.'

Effective July 7, 1971, the Federal Director of the Bureau of Narcotics and Dangerous Drugs, under the authority of 21 U.S.C. § 811, rescheduled amphetamine from Schedule III to Schedule II of the Federal Drug Abuse Act. 36 F.R. 12735 Federal Drug Abuse Act. 36 F.R. 12735 Division of Health to act under § 195.015, subd. 4, supra. Appellant does not attack the validity of the grant of authority to the Division of Health. This assignment of error is without merit.

Appellant has assigned error based upon the admission into and use in evidence of the regulations of the Division of Health placing amphetamine under Schedule II. He contends that the rules were not properly identified and authenticated. The exhibit consists of 26 pages of regulations to which is affixed the certificate of the Secretary of State 'that the annexed pages contain a full, true and complete copy of MISSOURI CONTROLLED SUBSTANCES REGULATIONS FILED IN THIS OFFICE BY THE DIVISION OF HEALTH OF THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE ON OCTOBER 4, 1972 AND WHOLLY IN EFFECT UNTIL THE UNDERSIGNED DATE WITHOUT CHANGE, ADDITION OR DELETION * * *.' The certificate is dated March 1, 1973.

This certificate, under the seal of the Secretary of State, was sufficient to make the document admissible in evidence under § 490.180, RSMo 1969, V.A.M.S. Appellant's contention that the document was required to bear the seal of the Division of Health mistakes the requirement of § 490.180. The requirement is that the seal of the officer receiving the document for filing appear on the certification, not the seal of the agency which promulgated the document. § 536.020, RSMo 1969, V.A.M.S., required the filing of this regulation in the office of the Secretary of State and his certificate adequately authenticated the document offered in evidence.

Appellant objects to the trial court's permitting the prosecuting attorney to read from the exhibit on the grounds that it amounted to an instruction to the jury that the substance in question was in fact proscribed by the rules. The prosecutor did, over appellant's objection on this ground, read to the jury the language of the regulation including amphetamine under Schedule II. However, appellant's contention that the court was required to submit to the jury the question of whether or not amphetamine was under Schedule II is based on a misreading of State v. Carter, 475 S.W.2d 85 (Mo.1972), which he cites. In that case the court stated (475 S.W.2d 90(5)):

'Therefore, in the instant case the questions of whether or not the list of proscribed stimulant drugs was sufficiently clear and definite and whether dl amphetamine sulfate appears on the list of proscribed stimulant drugs and is, therefore, proscribed are questions of law and must properly be left to the court, not the jury, to decide. People v. Bruner, (343 Ill. 146, 175 N.E. 400) supra; Ex parte Taft, (284 Mo. 531, 225 S.W. 457) supra.

'It was the function of the jury to decide, inter alia, as a matter of fact, whether or not the substance defendant was charged with selling was dl amphetamine sulfate. However, it was not the jury's function to determine if dl amphetamine sulfate was a proscribed drug, just as it was not the function of the jury in State v. Thompson, Mo., 425 S.W.2d 80, to determine whether marihuana was or was not a narcotic drug.'

That case is contrary to appellant's position here. He has shown no error in the trial court's ruling on this matter. A further contention, based on similar grounds, of error in permitting testimony that the capsules contained a 'controlled substance' is, for the same reason, without merit.

Appellant also claims that Exhibit 5 included a great deal of extraneous, inadmissible and highly prejudicial matter. Such an objection was made in the trial, but neither then nor here has appellant made any effort to point out what portion of the exhibit he considers objectionable. Failure to do so precludes any finding of error on the part of the trial court.

Appellant contends that the certified copy of the record of his prior conviction, relied upon in the court's finding that he was subject to the Second Offender Act, was inadequate because its authenticity was not properly established. The state produced a certified copy of a judgment of the Cooper County Circuit Court entered April 22, 1968, in the case of State of Missouri v. Loren De Wayne Winters,...