State v. Schoenhals

715 S.W.2d 583, 1986 Mo. App. LEXIS 4635
CourtMissouri Court of Appeals
DecidedSeptember 4, 1986
DocketNo. 14408
StatusPublished
Cited by1 cases

This text of 715 S.W.2d 583 (State v. Schoenhals) 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. Schoenhals, 715 S.W.2d 583, 1986 Mo. App. LEXIS 4635 (Mo. Ct. App. 1986).

Opinion

FLANIGAN, Judge.

The information charged that defendant, in violation of § 195.020,1 on May 24, 1984, in Newton County, sold marijuana to T.G. Mills. After a non-jury trial the trial court found defendant guilty and imposed a sentence of five years. Defendant appeals.

Defendant’s sole point is that the evidence is insufficient to support the finding of guilty “in that defendant produced substantial evidence of entrapment by repeated pressure from state agents to procure marijuana for them and the state failed to prove lack of entrapment beyond a reasonable doubt, in that evidence of defendant’s participation in subsequent transactions did not show a previous disposition to engage in illicit drug sale prior to the charged offense.” (Emphasis added.)

The state’s only witness, during the presentation of its case-in-chief, was T.G. Mills, a highway patrolman who was working undercover. Mills testified that on May 23, 1984, he met defendant in Seneca. The meeting had been arranged by Glenn Smith, an informant paid by the state. Smith was a friend and former schoolmate of defendant.

At the Seneca meeting Mills gave defendant $270 to obtain a quarter pound of marijuana. Defendant told Mills that his “contact” was Ron Durbin who lived in Oklahoma. During the early hours of May 24 [584]*584defendant, who had procured the marijuana in Oklahoma, delivered it to Mills. Mills gave defendant a small amount of the marijuana for his own use. Such was the state’s case-in-chief.

Defendant, testifying in his own behalf, admitted delivering the marijuana to Mills and receiving $270. Defendant testified that he paid Durbin $265 for the marijuana and that the extra $5 was for defendant’s travel expenses.

Defendant testified that informant Smith “all the time would ask me to sell drugs to Mills and bother me at work.... Smith did this a half dozen or a couple of dozen times at least.” Defendant also said, “Mills asked me to sell him drugs half a dozen times and I turned him down half a dozen times or more and said I couldn’t get it, I didn’t have time, and I had more important things to do.”

Defendant also said that on May 23, 1984, “I decided to get marijuana for Mills after consistently refusing to get him any because Mills kept coming to my job and I figured I would get it and he would leave me alone.”

On cross-examination the defendant testified that although he used marijuana occasionally he did not sell it. Defendant admitted that on June 9, 1984, he participated in a $970 sale of marijuana by Durbin to Mills in Miami. Defendant also admitted that on July 1, 1984, he participated in the sale, for $1,650, of two pounds of marijuana by Durbin to trooper M.H. Poe, who was working undercover with Mills. Defendant could not recall whether on July 13, 1984, he “worked with” Mills in attempting to set up a sale of one pound of marijuana to people named Engles.

After the defense rested, the state produced Trooper Poe who testified about the June 9 and July 1 sales. Trooper Mills, recalled by the state as a rebuttal witness, also testified to defendant’s involvement in the June 9 and July 1 sales.

Defendant then produced Archie Burli-son, who testified that on one occasion, date uncertain but “after May — after school, 1984,” he overheard a conversation between Mills and defendant in which Mills asked defendant to “get him a quarter pound of smoke [marijuana]” and defendant said, “I’ve got better things to do.” The witness further testified that Mills kept talking to defendant, “trying to talk him into it,” and defendant said, “I’ve got plans today.”

Referring to the June 9, July 1 and July 13 transactions, defendant’s brief says:

“If these subsequent sales are held permissible evidence of a predisposition to engage in a prior sale, then the state may have displayed defendant’s predisposition to commit the offense. However, defendant submits the relevant analysis is predisposition prior to the charged offense, and while defendant may have admitted to being an occasional user of drugs, he never sold previous to the charged offense, and only did so on that occasion to be relieved of the alleged badgering of Smith and Mills.”

The state’s brief does not address defendant’s contention that evidence of defendant’s participation in the June 9, July 1, and July 13 transactions has no probative value with respect to defendant’s predisposition to commit the May 24 offense for which he was on trial. Citing State v. Willis, 662 S.W.2d 252 (Mo. banc 1983), the state argues that there was no evidence of entrapment in “the State’s case” and that the trial judge “as trier of facts was free to disbelieve the defendant’s evidence of unlawful entrapment.” Judge Henry stated, at the close of the evidence, “The court is of the opinion that the testimony does not show an entrapment of the defendant.”

Section 562.066 reads, in pertinent part:

“1. The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.
2. An ‘entrapment’ is perpetrated if a law enforcement officer or a person acting in cooperation with such an officer, [585]*585for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.
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4. The defendant shall have the burden of injecting the issue of entrapment.”
Section 556.051 reads:
“When the phrase ‘The defendant shall have the burden of injecting the issue’ is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue.”

In Willis defendant was convicted, in a non-jury case, of selling cocaine. On appeal defendant claimed that the evidence was insufficient as a matter of law to support the conviction for the reason that she had presented evidence of entrapment which the state had not contradicted. In upholding the conviction the supreme court noted that Missouri follows the “subjective” test on entrapment, which focuses on the origin of the intent to commit the crime with emphasis on the predisposition of the accused.

The court said that § 562.066.2, set forth above, codified the defense of entrapment which was originally “a judge created doctrine.”

“[I]t is the defendant’s initial burden to go forward with evidence showing both unlawful governmental inducement and defendant’s lack of predisposition. The State then has the burden of proving lack of entrapment beyond a reasonable doubt. The State may do so by rebutting either defendant’s evidence of inducement or showing his predisposition.”

State v. Willis, supra, 662 S.W.2d at 255.

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Related

State v. Manns
745 S.W.2d 768 (Missouri Court of Appeals, 1988)

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Bluebook (online)
715 S.W.2d 583, 1986 Mo. App. LEXIS 4635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schoenhals-moctapp-1986.