State v. Oris

892 S.W.2d 770, 1995 Mo. App. LEXIS 62, 1995 WL 13282
CourtMissouri Court of Appeals
DecidedJanuary 17, 1995
DocketNos. WD 48074, WD 49413
StatusPublished
Cited by4 cases

This text of 892 S.W.2d 770 (State v. Oris) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Oris, 892 S.W.2d 770, 1995 Mo. App. LEXIS 62, 1995 WL 13282 (Mo. Ct. App. 1995).

Opinion

SPINDEN, Presiding Judge.

Gregory Oris appeals his convictions of felony stealing and possession of a controlled substance. In a bench-tried case, the trial court found him guilty of stealing Valium from a pharmacy in Sedalia where he was a pharmacist. He contends that the state’s information wrongly accused him of stealing a “narcotic drug” because Valium does not meet the statutory definition of a narcotic. We agree and remand for resentencing.

Oris also filed a motion pursuant to Rule 29.15 seeking post-conviction relief. He complains in this appeal of the motion court’s denial of his motion that the court did not make sufficient findings of fact to permit a meaningful appellate review. We disagree and affirm the motion court’s denial of his motion.

Oris’ convictions result from an incident at Oseo Drug in Sedalia on July 12, 1991. The store’s manager, viewing a security monitor, saw Oris lift his pants’ leg and put a vial in his sock. When Oris left the store, the manager confronted him. The manager asked him to turn over the vial in his sock. On the vial was a label identifying its contents as Valium prescribed for Christie Oris, his wife. The manager called police.

[771]*771Officers did a “pat-down” search of Oris. They found several medicine bottle labels in his rear pocket. The drug labels indicated medications purportedly prescribed for Christie Oris, Linda Carter, and Carol McCormack. Oris told officers that he was taking the Valium to his wife. He said that he put it in his sock because he did not have money to pay for it and planned to pay the next day.

In his first of two points on appeal, Oris complains that the trial court erred in overruling his motion for judgment of acquittal because the state’s charge was not supported by the evidence. The state charged Oris with a class C felony pursuant to § 570.030.3(3)(k), RSMo Supp.1993, which mandates that stealing be elevated to a felony if “[t]he property appropriated consists of ... [a]ny narcotic drugs as defined by section 195.010, RSMo; otherwise, stealing is a class A misdemeanor.” Section 195.010(27) defines “narcotic drug:”

[A]ny of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical analysis:
(a) Opium, opiate, and any derivative, of opium or opiate, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation. The term does not include the isoquinoline alkaloids of opium;
(b) Coca leaves, but not including extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(c) Cocaine or any salt, isomer, or salt of isomer thereof;
(d) Ecgonine, or any derivative, salt, isomer, or salt of isomer thereof;
(e) Any compound, mixture, or preparation containing any quantity of any substance referred to in paragraphs (a) to (d) of this subdivision[.]

The state acknowledges that Valium, diazep-am, does not appear to fit in § 195.010(27)’s definition of “narcotic drug.”

The state contends, however, that the General Assembly would not have intended to make stealing some controlled substances a felony, but not others. The state also argues that Missouri courts have described § 570.030.3(3)(k) as proscribing “stealing a controlled substance” and cites State v. Villar-Perez, 835 S.W.2d 897, 904 (Mo. banc 1992), and Wright v. State, 764 S.W.2d 96, 97 (Mo.App.1988). It cites cases referring to diazepam as a narcotic: State v. Norwood, 721 S.W.2d 175, 177 (MoApp.1986), and Branstuder v. State, 609 S.W.2d 460, 462 (Mo.App.1980). We reject these contentions.

This court held in State of Missouri v. Funk, 501 S.W.2d 526, 527 (Mo.App.1973), that the General Assembly, by specifying certain drugs in § 195.010 as narcotic drugs, intended to exclude from the term any drug not meeting the specifications. This was true, the Funk court concluded, although the drug in question was recognized by federal authorities as a narcotic drug. Indeed, a maxim of statutory construction provides that a statute’s express mention of one thing implies the exclusion of another. Harrison v. MFA Mutual Insurance Company, 607 S.W.2d 137, 146 (Mo. banc 1980). Hence, to the suggestion that the General Assembly would not have intended to exclude Valium as a narcotic because it is a controlled substance, we respond that the statute’s inescapable implication is that the General Assembly intended precisely that.

As for the state’s contentions that the courts’ characterization of Valium as a narcotic and a charge under § 570.030(3) as stealing a controlled substance somehow effectuated a modification of the statute to include more than the General Assembly intended, the argument is meritless. Courts do not have authority to read into a statute a legislative intent contrary to the intent made evident by the statute’s plain language. Kearney Special Road District v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). Although the courts have made such general characterizations in describing the facts of cases, they have never held that Valium was [772]*772a narcotic as defined in § 195.010(27) or that stealing any controlled substance was sufficient to satisfy § 570.030(3). The eases cited by the state serve nothing more than to illustrate that the courts can at times be less than precise. The courts “may not engraft upon the statute provisions which do not appear in explicit words or by implication from other language in the statute.” Wilson v. McNeal, 575 S.W.2d 802, 810 (Mo.App.1978).

The state then argues that in Chapter 195 the General Assembly used “narcotic drugs” and “substances” interchangeably. Assuming, arguendo, that this is correct, we fail to discern any significance to the point. Had the General Assembly used the terms interchangeably in § 570.030, the point might have some significance, but the General Assembly did not. It made clear its intent that the only substances falling within the parameters of § 570.030.3(3) were those satisfying the precise definition of § 195.010(27).

The state’s final assertion is that we should conclude that the jury convicted Oris of a misdemeanor which is a lesser included offense of felony stealing under § 570.030.3(3)(k). The statute’s syntax is confusing. The statute provides that stealing is a class C felony if “[t]he property appropriated consists of ...

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Bluebook (online)
892 S.W.2d 770, 1995 Mo. App. LEXIS 62, 1995 WL 13282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oris-moctapp-1995.