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September 9, 1993



Crow, Flanigan, Prewitt

The opinion of the court was delivered by: Crow

Defendant, Douglas Dampier, was charged with the class B felony of delivery of more than five grams of marijuana to Kimberly Ford in violation of § 195.211. *fn1 A jury found Defendant guilty as charged and assessed punishment at five years' imprisonment. The trial court entered judgment per the verdict.

Defendant appeals. His seven points relied on include a claim that the evidence was insufficient to support the verdict, complaints about evidentiary rulings, and an allegation of instructional error.

We begin with point I, which asserts the evidence was insufficient in that it "did not show that Defendant physically delivered marijuana to Kim Ford, or that Defendant had control and knowledge of the marijuana with the intent to deliver it to Kim Ford."

In addressing point I, we view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the verdict, and disregard contrary evidence and inferences. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, U.S. , 111 S. Ct. 2918, 115 L. Ed. 2d 1081 (1991). Our function is not to weigh the evidence, but to determine whether there was sufficient evidence from which reasonable persons could have found Defendant guilty as charged. Id., 803 S.W.2d at 11.

So viewed, the evidence shows that about three months before March 6, 1991, Corporal James Michael Stewart of the Missouri State Highway Patrol began working "undercover" in narcotics investigations in Dallas County using the pseudonym "J. D. Simpson." He soon became acquainted with Kimberly Ford and Andy Cole. On the afternoon of March 6, 1991, Stewart, Ford and Cole drove in Stewart's vehicle from Cole's apartment in Buffalo to a duplex in Urbana. Ford and Cole were unaware of Stewart's true identity.

They knocked on the door of the north apartment. Defendant answered the door; the trio entered. Several other people were inside.

After a few minutes, Ford and Defendant exited the apartment. A short time later, Defendant returned alone and said, "J. D., I think Kim wants to see you next door."

Stewart walked to the south apartment and entered. Ford was in the living room. She and Stewart went to the "dining room area," where Stewart saw four plastic bags of marijuana and a collapsible, hand-held scale on a kitchen table. Ford weighed the bags on the scale. Stewart and Ford then put the four bags into a larger plastic bag. Stewart paid Ford $275 for the marijuana -- a quarter pound. They then exited the apartment.

Stewart locked the marijuana in a tool box in his vehicle. He and Ford then entered the north apartment and remained a few minutes. Defendant asked Stewart when he would be back. Stewart said it would probably be sometime the next week.

At that juncture, Defendant made a comment that is the subject of his sixth point. According to Stewart, Defendant said he "would have some more--." Stewart could not recall Defendant's next word, but remembered it was not "marijuana." Over Defendant's objection, Stewart testified he is familiar with "lingo words . . . within the drug culture, that are synonyms . . . for marijuana." Among them are "pot, smoke, weed." The word Defendant spoke was "a word of similar import to one of those words."

After that remark, Defendant stated "the quality would be better."

Stewart, Ford and Cole then departed. The next day, Stewart took the marijuana to Highway Patrol headquarters for analysis.

Ford, presented as a witness by the State, testified that on March 6, 1991, Defendant was living in the south apartment at the duplex in Urbana. Defendant's niece, a friend of Ford, also lived in that apartment. Ford had been in the apartment on various occasions before March 6, 1991.

Recounting the events of that day, Ford testified that after she, Cole and Stewart arrived and entered the north apartment, she and Defendant went to his apartment. She quoted Defendant as saying marijuana was in a bag on the refrigerator and she could have it, that "it was no good." Ford could not recall whether Defendant handed her the bag or she "grabbed it."

Defendant departed. Ford put the bag on the table and removed the marijuana. Asked about the scales, Ford testified, "I believe they were in the bag."

Stewart entered the apartment, and he and Ford "looked at the pot." Stewart offered Ford $275. Ford weighed the marijuana, then gave it to Stewart and he gave her $275. Asked what she did with the money, Ford answered, "I took half of it and put it in my pocket and left the other half on the table." Ford admitted she had no agreement with Defendant to share the money.

A warrant was eventually issued for Defendant's arrest. Dallas County Sheriff Jerry Cox, accompanied by Deputy Sheriff Melvin Parks, executed the warrant. Parks read Defendant the "Miranda warning." *fn2 Details about this appear (infra) in our Discussion of point VII. Cox, who had been trying to contact Defendant for several weeks, asked Defendant why he had not contacted him (Cox). According to Cox, Defendant replied that he knew Cox would arrest him. Cox's testimony continued:

Q. . . . And what other conversation did you have . . . with Doug Dampier?

A. I believe I asked him why that he had had this marijuana, why he had sold it.

Q. . . . And what was his response to that question?

A. He said he had picked the stuff while he was in Nebraska while he was working for Steve Hart with a dump truck; and that times could get hard, and he needed to pay the rent.

David Nanneman, a chemist at the Missouri State Highway Patrol laboratory, weighed the marijuana Ford sold Stewart. Nanneman determined there were 104.8 grams of "plant material," which consisted of "about 60 to 75 percent seeds." During trial, outside the presence of the jury, Nanneman did some additional weighing of the marijuana. We shall set forth his findings (infra) when we reach Defendant's point V.

Defendant's first point begins with the premise that he did not have possession of the marijuana in his apartment on March 6, 1991. Defendant asserts, "Delivery requires a transfer of possession from one person to another." Defendant argues that inasmuch as he did not have possession of the marijuana, he could not deliver it to Ford.

In support of his theory, Defendant emphasizes he shared his apartment with his niece. Furthermore, says Defendant, several other persons had access to the apartment, including Ford.

Defendant relies on State v. Falkner, 672 S.W.2d 373 (Mo.App. W.D. 1984), but its facts are too different for it to apply. In Falkner, officers obtained a warrant to search a three-story residence owned by the accused. Upon entering, the officers encountered the accused and one Strong in the living room on the ground floor. Marijuana was found in two purses in a second floor bedroom. Marijuana was also found in a paper bag in another second floor bedroom. A trace of heroin and a trace of cocaine were found in the kitchen on the first floor. The accused was found guilty of possession of the marijuana, heroin and cocaine. On appeal, the Western District of this Court held the evidence sufficient to show the accused and Strong shared control of the premises. Id. at 376. However, there was no evidence, direct or circumstantial, that the accused had knowledge of the presence and character of the contraband and was intentionally and consciously in possession of it. Id. The judgment was reversed outright.

The facts here are strikingly different. Defendant knew the bag on the refrigerator contained marijuana. Indeed, he was familiar enough with it to have formed the opinion it was "no good." He exercised dominion over it by telling Ford she could have it. Defendant's guilty knowledge is further revealed by his remark to Stewart that he (Defendant) would have more the following week and its quality would be better.

Two definitions in the Comprehensive Drug Control Act of 1989 apply. Section 195.010(10) reads:

"Deliver" or "delivery", the actual, constructive, or attempted transfer from one person to another . . . of a ...

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