State v. Smashey

672 S.W.2d 154, 1984 Mo. App. LEXIS 4638
CourtMissouri Court of Appeals
DecidedMay 9, 1984
DocketNo. 46752
StatusPublished
Cited by7 cases

This text of 672 S.W.2d 154 (State v. Smashey) 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. Smashey, 672 S.W.2d 154, 1984 Mo. App. LEXIS 4638 (Mo. Ct. App. 1984).

Opinion

DOWD, Chief Judge.

Defendant-appellant Emory Smashey was convicted of manufacturing marijuana in violation of § 195.020 RSMo 1978 and sentenced to seven years imprisonment pursuant to § 195.200(2) RSMo 1978. We affirm.

The following facts were adduced at trial. On June 23, 1982, Kenneth Wegehoft, owner of a farm by Route 0 in Ralls County, Missouri, observed a blue camaro drive into the field of Francis Smashey’s farm, which was directly across the road from his farm. Wegehoft saw one male alight from the vehicle. He then observed this same man load some plant material into the trunk of the car. As the car drove past him, Wegehoft wrote down the car’s license number on a deposit slip.

Prior to Wegehoft’s June 23 sighting of the blue camaro, he had previously seen a black pick-up truck parked in approximately the same place where the camaro had been. On one occasion, Wegehoft had seen two men pulling weeds at this same location.

Shortly after observing the camaro, We-gehoft left the license number with Trooper Joseph Swearenger. When Sheriff Parsons received the license number, he went to Wegehoft’s farm. Wegehoft then showed Parson the location in question where they observed some 40-50 plants ranging from 1 foot to 6 feet tall planted in a pattern with weeds pulled from around the plants. Sheriff Parsons pulled and confiscated some of the plants. Chemical tests later revealed the confiscated plants to be marijuana.

On June 24, 1982, a stake out of the marijuana plot was conducted by State Troopers Joseph L. Swearenger and Richard Hursey. At approximately 5 p.m., a black pick-up truck arrived at the marijuana plot. A white male got out of the truck, walked into the underbrush, ran out towards the truck, and then took off at a high rate of speed. Shortly thereafter, Larry Smashey appellant’s cousin, was apprehended and arrested. Larry Smashey then took the arresting officers back to the marijuana plot.

At trial, Wegehoft testified for the state as to his observations and activities previously set forth. Sheriff Glen Parsons of Ralls County testified that the vehicle license number received from Wegehoft was Missouri GYA-228. As a result of plea bargaining, Larry Smashey testified for the state against appellant. Larry also admitted to planting and cultivating the marijuana and testified that appellant helped him plant the marijuana plants on Francis Smashey’s property.

[156]*156Appellant testified and admitted to planting about 10 marijuana plants but only because he got tired of watching and waiting on Larry Smashey. He also admitted to driving a blue camaro with Missouri license number GYA-228, Finally, appellant and a Jimmy Sawyer testified that from 2:00 p.m. to 10:00 p.m. on June 23, 1982, appellant, his wife, and children were at a fish fry at Steven Fowler’s home in Hannibal, Missouri. Appellant was found guilty of manufacturing marijuana and now appeals contending the trial court erred in five respects. Specifically, he claims the court erred in (1) admitting Sheriff Parsons’ alleged hearsay testimony concerning the license plate number; (2) sentencing appellant without reference to § 195.200 et seq., which was the applicable sentencing provision; (3) failing to apply the “personal use” exception to the manufacturing charge; (4) submitting a modified MAI-CR 2d instruction; and (5) failing to give jury instruction MAI-CR 2d 2.37.1, concerning mistake of law or fact.

We first note that points one, two, and three were not preserved for review. Appellant failed to both object at trial and raise any allegation of error as to these points in his motion for new trial. State v. Simpson, 625 S.W.2d 957, 959 (Mo.App.1981). He now asks us to review these points under plain error rule. Our review of the record, however, shows no manifest injustice or miscarriage of justice in any of appellant’s three points. First, Sheriff Parsons’ testimony concerning the license plate number can hardly be considered prejudicial in view of appellant’s own admission to ownership of a blue camaro with a GYA-228 Missouri license plate number, and the fact appellant’s own counsel elicited the appellant’s admission to the same information. See State v. Eiland, 534 S.W.2d 814, 817 (Mo.App.1976).

Secondly, we find appellant’s contention that the trial court failed to mention § 195.200 RSMo 1978 in its findings thereby rendering the judgment sentence void to be without merit.

In its findings, the trial court stated the appellant had a prior drug conviction and therefore came within the “provisions of the prior felony act of the State of Missouri.” Appellant argues, this finding purports to include him within the provisions of the Persistent Offender Statute § 558.016 RSMo 1978 when he was charged under § 195.020 RSMo 1978 thereby invoking the penalty provision of § 195.200 RSMo 1978. It is well established that absent any showing of prejudice the omission of statutory section numbers is not error where the information notified the defendant of the offense charged and would constitute a bar to another prosecution. Emmons v. State, 621 S.W.2d 329 (Mo.App.1981). Here, the amended information more than adequately advised appellant of the charge against him and under which provision he was to be punished. State v. Evans, 637 S.W.2d 62, 65 (Mo.App.1982). Furthermore, since § 558.016 was never mentioned in the information appellant can hardly claim he was confused as to the applicable sentencing provision. We also note appellant’s enhanced sentence was well within the perimeters set by § 195.200 RSMo 1978 and therefore if any error did exist it was certainly not prejudicial.

Finally, appellant’s contention that the trial court erred in failing to grant a judgment of acquittal at the close of the state’s evidence where it was not conclusive the marijuana in question did not fall within the personal use exception is also without merit. On appeal, all evidence and reasonable inferences in support of the verdict must be accepted as true and everything else must be disregarded. State v. Ball, 654 S.W.2d 336, 338 (Mo.App.1983). The evidence previously set forth, especially appellant’s own admission to planting the marijuana, clearly supports a finding that he was engaged in its manufacture. His reliance on the personal use exception is not persuasive • since this exception applies to the “preparation and compounding” of controlled substances and not to their cultivation. See State v. Netzer, 579 S.W.2d 170, 174 (Mo.App.1979). We find [157]*157no plain error and appellant’s third point is also denied.

In his fourth point, appellant challenges the modified verdict director MAI-CR 2d 32.061 submitted in Instruction 6. The state in this case did in fact modify MAI-CR 2d 32.06 by substituting the word “manufacture” for the listed offenses. Appellant argues the notes on use for this instruction state the forms given do not cover the offenses of manufacture, prescription, administration, dispensing, or compounding of controlled substances and that the state was therefore required to submit MAI-CR 14.10.2 We disagree.

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Bluebook (online)
672 S.W.2d 154, 1984 Mo. App. LEXIS 4638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smashey-moctapp-1984.