State v. Hendricks

944 S.W.2d 208, 1997 Mo. LEXIS 40, 1997 WL 209515
CourtSupreme Court of Missouri
DecidedApril 29, 1997
Docket79513
StatusPublished
Cited by44 cases

This text of 944 S.W.2d 208 (State v. Hendricks) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hendricks, 944 S.W.2d 208, 1997 Mo. LEXIS 40, 1997 WL 209515 (Mo. 1997).

Opinions

COVINGTON, Judge.

Appellant, Danny Hendricks, appeals from the trial court’s judgment finding him guilty of selling a controlled substance. The Missouri Court of Appeals, Eastern District, transferred the case after opinion. See Rule 83.02. The Court is called upon to decide whether the trial court can properly enter a verdict of guilty of selling a controlled substance under section 195.211, RSMo 1994,1 where a defendant utters the words of an offer to sell but does not actually have the controlled substance in his possession. The judgment of the trial court is affirmed.

On April 14, 1994, an undercover detective for the Northeast Missouri Narcotics Task Force met a confidential informant in Shelby County, Missouri. The detective and the informant discussed buying drugs from Connie Wood. The detective and the informant met Wood on the road on the way to her house. She told them to follow her to her house to make the transaction.

At Wood’s house, the detective and the informant were introduced to appellant, Wood’s brother. Wood went into another room and the detective and appellant sat down at the kitchen table. Wood returned with two packets, each containing approximately half a gram of cocaine. The detective gave Wood $100. Wood left the room and the detective and appellant began talking. Appellant told the detective that if he liked the cocaine that Wood had sold him, appellant could sell the detective an eight-ball the next day. An “eight-ball” is commonly used to refer to an eighth of an ounce, or three and a half grams, of cocaine. The detective told appellant that if he, the detective, liked the cocaine he would get in touch with appellant and they “would do the deal.” Appellant and the detective spoke for about twenty minutes. The detective did not return to the house to complete the transaction. Appellant was later arrested, charged, and convicted of selling a controlled substance. Section 195.211.

Appellant’s sole point on appeal asserts:

The trial court erred in finding [appellant] guilty and in sentencing him on his convic[210]*210tion for sale of a controlled substance, because such actions violated [appellant’s right to due process of law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Missouri Constitution, in that the State’s evidence was insufficient to support the conviction because [appellant’s statement to [the officer] that he would be willing to sell him an “eight ball” at a later date did not constitute a sale of a controlled substance.

Allegedly at issue is the question of what constitutes an offer to sell a controlled substance. Section 195.211 provides in pertinent part: “[I]t is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.” In enacting section 195.211 and its companion definitional statutes, the general assembly has defined some, but not all, of the statutory terms. Definitions include “delivery,” for example, which is “the actual, constructive, or attempted transfer from one person to another ... of a controlled substance ... and includes a sale.” Section 195.010(10) (emphasis added). “Sale” is defined as “barter, exchange, or gift, or offer therefor. ...” Section 195.010(37) (emphasis added). The term “offer” is not defined in section 195.010, nor has the meaning of the term for purposes of section 195.211, as it is read together with section 195.010(37), been previously decided by this Court.

Appellant puts forth two subpoints for his point on appeal. Under his first subpoint, appellant does not dispute that he uttered the words of an offer. He states, instead, that mere words do not constitute a sale. He contends that, absent evidence that he actually had the controlled substance in his possession or had access to his sister’s cocaine, there can be no conviction under section 195.211. Putting it another way, appellant submits that, even though the state proved that appellant asked the detective whether the detective wanted to buy an “eight ball” the following day, no evidence established that appellant had access to the substance. These statements constitute the entirely of appellant’s presentation regarding appellant’s subpoint one.

Appellant’s argument does not allow a decision. Appellant does not say why there must be evidence that he had access to the substance. Appellant cites cases that he contends show the need for a presence of a controlled substance, but he does not connect them to the present case in any respect, nor does he provide explanation of why they might be authoritative. His statements, although thought-provocative, are nothing more. His statements are presented, then left unsupported by any reasoning. Left as they are, completely undeveloped, they provide nothing for meaningful review. Certainly they lend themselves to the possibility of a number of reasoned arguments. It is not within this Court’s province, however, to speculate about, then decide, arguments that are not asserted or that are merely asserted but not developed. Leahy v. Leahy, 858 S.W.2d 221, 227-28 (Mo. banc 1993); Krame v. Waller, 849 S.W.2d 236, 239 (Mo.App. 1993).

There is no requirement that the argument section of an appellate brief be perfect. Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App.1993). An appellant’s brief, however, should adequately present and address the issues to be decided. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). Appellant’s submission of error, being without reasoned argument with respect to why there must be evidence that appellant had access to the substance does not require, or even allow, a decision. See id.

In his second subpoint, appellant contends that to allow a conviction for offering to sell a controlled substance in the absence of proof that the substance was controlled would render the imitation controlled substances act “obsolete.” Presumably, appellant means “superfluous.” Appellant argues that if a person offered to sell cocaine but actually delivered an imitation substance, he could be subject to multiple convictions for one sale—the offer to sell a controlled substance, section 195.211, and the sale of an [211]*211imitation controlled substance, section 195.242.

Appellant’s contention is without merit. The legislature made crimes of both the selling of an imitation controlled substance and the offering to sell a controlled substance. When a person violates more than one criminal statute, it is within the prosecutor’s discretion to determine the statute or statutes under which the prosecutor desires to proceed. State v. Watts, 601 S.W.2d 617, 620 (Mo. banc 1980). The prosecutor’s determination will be based upon the evidence, along with any other considerations that the prosecutor may properly take into account. The efficacy of the crime of selling an imitation controlled substance is not diminished by allowing a conviction for offering to sell a controlled substance without requiring presentment of the substance.

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State v. Hendricks
944 S.W.2d 208 (Supreme Court of Missouri, 1997)

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Bluebook (online)
944 S.W.2d 208, 1997 Mo. LEXIS 40, 1997 WL 209515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hendricks-mo-1997.