Swain v. State
| Decision Date | 31 January 1991 |
| Docket Number | No. F-90-148,F-90-148 |
| Citation | 805 P.2d 684 |
| Parties | Richard Gayle SWAIN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Richard Gayle Swain, appellant, was tried by jury and convicted of the crime of Unlawful Possession of Marijuana With Intent to Distribute (63 O.S.Supp.1986, § 2-401) in Comanche County District Court Case No. CRF-88-573. In accordance with the jury's recommendation, appellant was sentenced to twenty (20) years imprisonment and ordered to pay a twenty thousand dollar ($20,000.00) fine. From this Judgment and Sentence, appellant appeals.
On September 16, 1987, appellant telephoned Herman Williams and offered to sell him a quantity of marijuana. Williams, an informant for the district attorney's Drug TASC Force, told appellant that he wanted to see the marijuana and arranged for a meeting at a local convenience store. After being informed of the meeting by Williams, TASC Force investigators Dean Cunningham and Bruce Justice drove to a location across the street from the store and observed the meeting. Williams testified that at the scene appellant said that the marijuana was in the trunk of his car and that it was "very good stuff." Appellant then opened the trunk and showed Williams a large quantity of substance which Williams believed to be marijuana. Appellant reiterated to Williams that he could get as much of the substance as Williams needed. After a price was discussed, Williams asked appellant to follow him so that Williams could get more money. Williams then drove in a direction prearranged by the TASC Force investigators, with appellant and his companion following. The investigators, who also followed in their automobile, radioed for a patrol unit to stop appellant's vehicle. After appellant's car was stopped and he and his companion were arrested, investigator Cunningham opened the trunk of appellant's car and observed what he believed to be approximately five (5) ounces of marijuana. Investigator Justice also stated that the believed the green leafy substance found in the trunk was marijuana. The substance was collected and sent to the Oklahoma State Bureau of Investigation (OSBI) for chemical analysis.
At trial, Justice testified that the substance marked as State's Exhibit No. 1 was the substance removed from the trunk of appellant's vehicle. The parties also stipulated that if Tom Reynolds was called as a witness, he would qualify himself as a chemist with the OSBI and he would testify as to the information contained in the report marked as State's Exhibit No. 2. The State failed to offer either of these two exhibits into evidence. 1
In his first assignment of error, appellant claims that there was insufficient evidence to support his conviction. While he advances several arguments within this assignment, the thrust of appellant's proposition is that the State failed to prove that the substance discovered in his automobile was marijuana. He bases this argument upon the fact that none of the witnesses who testified that the substance appeared to be marijuana were qualified as an expert in the area of marijuana recognition, and because neither the lab report nor the seized substance were introduced into evidence. See, e.g., McCoy v. State, 699 P.2d 663 (Okl.Cr.1985); Cory v. State, 543 P.2d 565 (Okl.Cr.1975); Davenport v. State, 510 P.2d 988 (Okl.Cr.1973). (In all three cases this Court held that the opinion testimony of a law enforcement official, who provided evidence of his expertise, training and/or experience in recognizing marijuana, was sufficient to establish that a seized substance was in fact marijuana).
We note, however, that expert testimony and chemical analysis results are not the only items of evidence which may be considered in determining whether the identity of an illegal substance has been established. In United States v. Sanchez DeFundora, 893 F.2d 1173 (10th Cir.1990), the United States Court of Appeals for the Tenth Circuit addressed an issue similar to the argument advanced herein. There, the appellant argued that there was insufficient evidence to support her convictions for distribution of cocaine because the substances allegedly distributed were not subjected to scientific analysis and no evidence was adduced to establish the chemical makeup of those substances. After setting forth the test to be used in determining the sufficiency of the evidence, see Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), ...
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