State v. Revelle

809 S.W.2d 444, 1991 WL 79310
CourtMissouri Court of Appeals
DecidedMay 17, 1991
DocketNos. 16665, 16953 and 16958
StatusPublished
Cited by8 cases

This text of 809 S.W.2d 444 (State v. Revelle) 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. Revelle, 809 S.W.2d 444, 1991 WL 79310 (Mo. Ct. App. 1991).

Opinions

MAUS, Presiding Judge.

Defendant Michael D. Revelle was charged by indictment with conspiracy to sell marijuana. A jury found defendant guilty and assessed a 15-year sentence. The trial court on October 31, 1989 sentenced defendant in accordance with the jury verdict. Defendant filed a notice of appeal from the original sentence, Case No. 16665. On April 10, 1990, on its own motion and on a stipulation by the state, the trial court set aside that sentence and imposed a sentence of seven years. The trial court assumed that by reason of the repeal of § 195.020 RSMo 1986 and the enactment of the “Comprehensive Drug Control Act of 1989”, §§ 195.005 to 195.425 RSMo Supp.1990, § 1.160 was applicable. Defendant also filed a notice of appeal from the resentencing, Case No. 16953. This was apparently done to insure a review of defendant’s conviction. The appeals in Case Nos. 16665 and 16953 were consolidated.

[446]*446The defendant also filed a Rule 29.15 motion. That motion was denied. Defendant filed a notice of appeal from that denial, Case No. 16958. That case was consolidated with Case Nos. 16665 and 16953. Defendant has briefed no assignment of error on his Rule 29.15 motion and the appeal in Case No. 16958 is abandoned. Rule 30.06. Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978); State v. Sumowski, 792 S.W.2d 381 (Mo.App.1990); State v. Maxson, 755 S.W.2d 277 (Mo.App.1988). On his direct appeals from the initial sentencing and his resentencing, defendant states four points of error.

Defendant’s first point contends the evidence was insufficient to support his conviction for conspiracy to sell marijuana. In reviewing the evidence, we “must accept as true all evidence and inferences supportive of the verdict and disregard contrary evidence and inferences; viewed in that light, we must determine whether a sub-missible case was made.” State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991). So viewed, the record establishes the following facts.

From June 1986 to February 1987, John Curry (Curry) worked for John Webb (Webb) in Webb’s marijuana selling operation. As part of his employment with Webb, Curry would break up one-hundred pound cubes of marijuana into one pound packages. Between July and November 1986, Webb sold defendant marijuana at least four times, in amounts ranging from one half pound to three pounds each time. Between December 1986 and January 1987, Curry observed defendant purchasing three or four pounds of marijuana a week from Webb. Curry also testified that the defendant told him he was reselling the marijuana he bought and gave Curry the names of three people to whom he had resold it. Defendant always paid for the marijuana in cash at $825-850 per pound. There was testimony indicating that even a very heavy marijuana smoker could personally use only about ⅛⅛ of a pound of marijuana in one week.

There was also evidence that in February 1987 Curry began to work for Roy Dean (Dean), Webb’s supplier of marijuana, and live in Dean’s home. In addition to breaking up cubes of marijuana as he had done for Webb, Curry made trips to Kansas City, St. Louis and East Prairie delivering marijuana for Dean. Defendant began purchasing marijuana from Curry instead of Webb because it was less expensive. Defendant bought five or six pounds of marijuana once a week, paying $700 cash per pound. In the spring of 1987, Curry witnessed defendant attempting to collect money from someone to whom he had sold marijuana.

As stated, the defendant’s first point is “there was no substantial credible evidence adduced at trial to make a submissible case of defendant conspiring with Johnnie Webb to sell marijuana”. In support of that point, he argues “there is no evidence that anyone agreed to sell marijuana”. He continues “[ajssuming the Court agrees with Webb’s testimony, there was an agreement that Webb would sell to Revelle. There was no agreement for a further sell [sic].” In essence, he contends the evidence is insufficient because there was no evidence of an express agreement between the defendant and Webb that the defendant would sell marijuana.

It is settled that there need not be direct evidence of an explicit agreement between two or more persons to establish a conspiracy as defined by § 564.016.

“ ‘It is universally conceded that an agreement need not be express, although whether the idea of an implied agreement connotes only an unspoken, actual consensus or has broader fictional components is by no means clear.’ Model Penal Code § 5.03 Comment 2(c)(iv) (footnote omitted).
In the Institute’s view, neither combination as distinguished from agreement nor the analogy of partnership should be included in the formal definition. If a consensus is demanded, it is clearly indicated by demanding an “agreement,” which need not, of course, be formal or, indeed, explicit in the sense that it is put in words.
[447]*447Id. Also see United States v. Mohr, 728 F.2d 1132 (8th Cir.1984), cert. denied, 469 U.S. 843, 105 S.Ct. 148, 83 L.Ed.2d 87 (1984).
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‘The agreement can be established by circumstantial evidence and need show “no more than a tacit understanding among the participants.” United States v. American Grain & Related Industries, 763 F.2d 312, 315 (8th Cir.1985).’ United States v. Raymond, 793 F.2d 928, 932 (8th Cir.1986).” State v. Welty, 729 S.W.2d 594, 597-598 (Mo.App.1987).

There was evidence that over the course of seven months Webb regularly sold marijuana to the defendant in far greater quantities than would be reasonably consumed for personal use. The extended course of dealing between Webb and the defendant provides a strong inference of an understanding the defendant would resell the large quantities of marijuana he purchased. In addition, there was evidence the defendant had stated he resold the marijuana. The evidence is sufficient to permit the jury to find the conspiracy charged. State v. Welty, supra; State v. Drinkard, 750 S.W.2d 630 (Mo.App.1988).

The defendant’s second point is that the trial court erred in giving verdict directing Instruction No. 5 “because said instruction was not supported by any substantial evidence.” As stated, this point is a rescript of his first point and should be denied on that basis. Examination of the argument under that point reveals a contention by the defendant that the date of the overt act charged and submitted, between July 1986 and January 1987, is outside of the period of conspiracy. The period of the conspiracy charged and submitted was July 1986 through October 1987. The date of the overt act falls within that period. The point is denied.

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Bluebook (online)
809 S.W.2d 444, 1991 WL 79310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-revelle-moctapp-1991.