APPEAL FROM THE CIRCUIT COURT OF SCHUYLER COUNTY. THE HONORABLE RICHARD WEBBER, JUDGE
Before Lowenstein, C.j., P.j., Ulrich, and Hanna, J.j.
The opinion of the court was delivered by: Lowenstein
The sole issue in this criminal case is whether the double jeopardy clause of the Article I, § 19 of the Missouri Constitution or the Fifth Amendment to the United States Constitution barred a second prosecution by the same sovereign, for the possession of the very same quantity of marijuana. Waller v. Florida, 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184 (1970). The Missouri Constitution provides "nor shall any person be put again in jeopardy of life or liberty for the same offense, after once being acquitted by a jury." The Fifth Amendment provides, no person shall "be subject for the same offence to be put twice in jeopardy of life or limb."
Missouri previously charged Burns with Count I, possession with intent to distribute marijuana under § 195.211.2, RSMo 1993 *fn1, a Class B felony, and Count II possession of tetrahydrocannabinol (a marijuana derivative) under § 195.202, RSMo 1993, a class C felony. *fn2 A jury acquitted the appellant of Count I and found him guilty of Count II. A little more than a month later, the prosecutor charged the appellant with possession of more than 35 grams of marijuana under § 195.202.2, a Class C felony. The appellant moved the court to dismiss the charge and alleged the state twice placed him in jeopardy for the same offense. After denial, of the motion a jury convicted him.
The underlying facts are as follows: On November 9, 1990, the Schuyler County Sheriff armed with a search warrant for the appellant's residence, found 2,070.46 grams of marijuana. Burns stood trial, by jury, in March, 1992 for Count I, possession with intent to distribute marijuana and Count II, possession of tetrahydrocannabinol (THC), the major psychoactive component of marijuana. After an acquittal on Count I, he was found guilty on Count II with punishment assessed at 9 months in the county jail. At the second trial, which precipitated this appeal, the defendant was charged under § 195.202 with possession of more than 35 grams of a controlled substance (marijuana), based on the same November 9, 1990 discovery. At the time of the second trial, Burns was serving his original nine month sentence for possession of the THC found in the November 9th raid. At the second trial he was convicted by the jury and received a two year sentence. The sole issue is whether the charged conviction for possession of more than 35 grams of marijuana was barred under the Missouri Constitution or Fifth Amendment of the United States Constitution, in view of the earlier acquittal on the charge of possession with intent to distribute.
The Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, § 19 of the Missouri Constitution bar the state from putting a person in jeopardy of life or liberty for the same offense twice. Benton v. Maryland, 395 U.S. 784, 790-93, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). The Missouri Constitution is more restrictive, allowing double jeopardy to apply only when a defendant has been acquitted by a jury. State v. Urban, 796 S.W.2d 599, 601 (Mo. banc 1990) cert. denied 114 L. Ed. 2d 89, 111 S. Ct. 1695 (1990) ; State ex. rel. Westfall v. Campbell, 637 S.W.2d 94, 96 (Mo. App. 1982). In § 556.041, RSMo 1982 , where the same conduct may establish more than one offense, a defendant may not be "convicted" of more than one offense, with certain conditions. The Federal Constitution protects against a second prosecution in the case of an acquittal, a conviction, or multiple punishments for the same offense. Green v. U.S., 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957) ; North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969) .
The principle of criminal collateral estoppel, given constitutional status in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970), does not apply here. Where, as in this case, there is general verdict by a jury, the principles of collateral estoppel are not applicable.
The applicable law when this case brought, tried and argued, was Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990). Grady acknowledged a double jeopardy analysis which involved a two-tier inquiry. Id. at 516. First, one inquires whether each of the offenses have identical elements or is a lesser included offense; if so, the inquiry must cease and the subsequent prosecution is barred. Id. at 516; Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932) . The second part of the test, the Supreme Court stated "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential elementof an offense charged in that prosecution, will prove conductthat constitutes an offense for which the defendant has already been prosecuted. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove the conduct." Grady, 495 U.S. at 521. In a fractured opinion, Grady was overruled by the United States Supreme Court in U.S. v. Dixon, 125 L. Ed. 2d 556, 61 USLW 4835, 4839 (June 28, 1993) . In overruling Grady, the Court eliminated the "essential element" or "same conduct" test and reinstated Blockburger as the test.
The state has charged the appellant twice, in two different proceedings. Burns was charged in the second trial for possession of marijuana after being acquitted for possession with intent to distribute.
This court will now address an inquiry under the Blockburger test to determine whether the subsequent charge constitutes a lesser included offense or is comprised of the identical elements as the first charge of possession with intent to distribute. As written, the essential elements of possession with intent to distribute are 1) possession, 2) of a controlled substance, 3) with intent to distribute. The elements of possession of a controlled substance are 1) knowing and intentional possession of the substance, and 2) awareness of the presence and illegal nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992), State v. Dreiling, 830 S.W.2d 521, 525 (Mo. App. 1992), State v. Phegley, 826 S.W.2d 348, 352 (Mo. App. 1992). The weight of the controlled substance must be proven for both offenses, but this appears to go to the classification of the offense, and therefore to punishment. See State v. Sumlin, 820 S.W.2d 487, 492 (Mo. banc 1991) . The Missouri Supreme Court reaffirmed its position the Drug Act "did not create new offenses involving possession of cocaine, but instead subdivided the one offenseof possession of cocaine into three degrees of criminal liability. That the degrees of liability turn on a determination of the amount of cocaine possessed does not convert the crime to something other than the possession of cocaine." State v. Whardo, 1993 Mo. Lexis 83 No. 75333 Slip opinion at page 5 (Mo. August 17, 1993)(reaffirming State v. Sumlin, 820 S.W.2d at 492) (emphasis added). In Whardo,the court held the same held true for § 195.211 the statute setting forth the punishment for possession of marijuana established "different decrees of liability for that one offense". Id.
Under the first prong of the test, if the offenses have identical elements, the state may not charge the defendant in a subsequent prosecution. In this case, the two charges have the identical elements of 1) possession 2) of a controlled substance with the 3) knowledge of its illegal nature. As such, under this test the subsequent charge, which involves the identical essential elements, violated double jeopardy. Furthermore, where in the first case, the defendant is acquitted, the state may not try the defendant for the lesser included offense. "Missouri long ago adopted Wharton's rule that acquittal on a greater offense is a bar to a later prosecution on a minor offense included in the greater offense if under the charge of the greater offense the defendant could have been convicted of the lesser." State v. Johnson, 710 S.W.2d 908, 911-12 (Mo. App. 1986) (citing State v. Hamlin, 171 S.W.2d 714, 715 (Mo. 1943)) . See also Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977).
The state argues that the weight of the controlled substance is an element of the second offense. Even if this court accepted this argument, the appellant was acquitted of an offense which required 5 grams or more of a controlled substance be involved. An acquittal on a lesser amount would preclude subsequent prosecution for a charge based on a larger amount. See State v. O'Dell, 684 S.W.2d 453, 465 (Mo. App. 1984) cert. denied 488 U.S. 930 (1988). In a case similar to the one before the court, a Maryland court held the defendant's right against double jeopardy was violated when he was convicted of four counts of unlawful distribution of LSD under § 286(a) and one count of distribution of 1,000 dosage units of LSD under § 286(f). Anderson v. State, 89 Md. App. 712, 599 A.2d 861 (Md. 1991). The court noted all the elements of 286(a) were lesser included offenses of 286(f) and thus violated double jeopardy where the only additional element was the element of a specific quantity of LSD. Id. at 867.
This case may be distinguished from cases which require separate acts under the elements of crime and is unlike those cases where the defendant is tried for the substantive crime and then subsequently tried for conspiracy to commit the crime U.S. v. Felix, 118 L. Ed. 2d 25, 112 S. Ct. 1377, 1384 (1992) or where the defendant is tried the first time for possession of a controlled substance and in the second trial for manufacturing a controlled substance. State v. Brown, 750 S.W.2d 139, 142 (Mo. App. 1988) . Here there were no additional acts by the defendant, or independent charges against him in the second trial. The defendant was charged, under § 195.202, for possession of marijuana (the same marijuana seized on November 9, 1990) which was the basis for count I in the first trial and under the same statute which he was charged for possession of THC. Furthermore, as previously noted, he was acquitted of possession with intent to distribute in the first trial and subsequently tried for possession, which is an element of possession with intent to distribute.
A strict reading of the methods of analyzing what are same or separate offenses for determining double jeopardy application perhaps misses the mark. With an infinite variety of variables entering into the equation, each double jeopardy case should be decided with the facts of controlling cases in mind, as well as scrutiny as to whether the result is fair. In the present ...