Evans v. StateEvans v. State
- Reporters:
- ,
- Before:
- Bussey
Lead Opinion
OPINION
BUSSEY, Presiding Judge:Appellant, Steven Earl Evans, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Lincoln County, Case No. CRF-76-47, for the offense of Unlawful Delivery of Marijuana, in violation of
At the trial, Richard Dill testified that he was employed as a chemist with the Oklahoma Bureau of Investigation. He conducted tests on the contents of State’s Exhibit No. 1 and was of the opinion that the same was marijuana.
Richard Edward Strong testified that in the fall of 1975, he was employed as an undercover agent with the District Attorney’s Office in Lincoln County. He admitted that prior to becoming an undercover agent he smoked marijuana and “sold it a few times,” and that on October 11, 1975, he approached defendant and asked him if he knew where any “stuff” was around. Defendant stated that he had one bag left. Defendant opened the trunk of his vehicle and sold him a baggie containing a green leafy substance for $10.00. He kept the baggie in his possession for two days and delivered it to Investigator Dawson. He placed the baggie in an evidence envelope, State’s Exhibit No. 1, which he initialed and dated.
*504On cross-examination, he testified that defendant was in his National Guard Unit and that Investigator Dawson was their First Sergeant. He admitted being involved in narcotics for the previous two or three years. He further admitted that he had been caught smoking marijuana in a National Guard truck.
Gene Dawson testified that he was employed as an Investigator for the District Attorney’s Office in Lincoln County. On October 13, 1975, Hank Strong delivered to him a plastic bag containing a green leafy substance. The bag was initialed, dated and placed in an evidence envelope. He delivered the envelope to the Oklahoma Bureau of Investigation on October 15, 1975.
For the defense, Hank Strong was recalled by the defendant. He admitted that the incident wherein he had been caught smoking marijuana occurred six or seven months ago rather than eighteen months as ■he had previously testified.
Defendant testified that he had known Hank Strong approximately six years. He denied selling marijuana to Strong on the day in question.
Defendant asserts in the first assignment of error that
We believe that the better view was expressed by the Supreme Court of South Dakota, who held in substance, in State v. Strong, 245 N.W.2d 277 (1976), that there is a rational basis for a classification very much like the one challenged in the instant case:
“The statutory scheme here involved does not involve basic or fundamental rights or interests of appellant and
‘the concept of equal protection as embodied in the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), does not require that all persons be dealt with identically, but rather that there be some “rational basis” for the statutory distinctions made, McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055,1060, 35 L.Ed.2d 282, (1973), or that they “have some relevance to the purpose for which the classification is made.” ’ ” (citations omitted) Marshall v. United States, 1974, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618.’
“As stated in McLaughlin v. Florida, 1964, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, ‘Normally, the widest discretion is allowed the legislative judgment in determining whether to attack some, rather than all, of the manifestations of the evil aimed at; and normally that judgment is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious.’ Considering the lack of unanimity in either legal or scientific opinion as to the effects of marijuana, we agree with the Supreme Court of Missouri wherein it stated ‘ “The classification, we believe, is reasonable and not arbitrary despite the fact that some of the drugs listed could be classified differently.” ’ State v. Burrow, 1974, Mo., 514 S.W.2d 585.”
We would further observe that
“C. The Commissioner may recommend to the Legislature the addition, deletion or rescheduling of a substance.
D. In considering whether to make a recommendation or issue an order under this section, the Commissioner or the Board of Pharmacy, as the case may be, shall consider the following:
*505“1. Its actual or relative potential for abuse;
“2. Scientific evidence of its pharmacological effect, if known;
“3. State of current scientific knowledge regarding the substance;
“4. Its history and current pattern of abuse; .
“5. The scope, duration, and significance of abuse;
“6. What, if any, risk there is to the public health;
“7. Its psychic or physiological dependence liability; and
“8. Whether the substance is an immediate precursor or principal compound of a substance already controlled under this article.”
It is thus readily apparent that the Legislature has provided a proper framework within which to determine when and if certain substances should be reclassified. This Court will not substitute its judgment based upon the development of conflicting contemporary expert opinion for that of the Legislature. The classification here complained of is neither unreasonable nor arbitrary, and we therefore find this assignment of error to be without merit, in accordance with State v. Strong, supra, and authorities cited therein.
Defendant finally contends that the verdict was not sustained by the evidence. We have consistently held that where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, this Court will not interfere with the verdict even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom. Taylor v. State, Okl.Cr., 374 P.2d 786 (1962). From the foregoing statement of facts we are of the opinion that the evidence although conflicting was sufficient for the jury to conclude that the defendant was guilty.
We therefore find the final assignment of error to be without merit.
In conclusion we observe the record is free of any error which would cause reversal or justify modification.
The judgment and sentence is accordingly AFFIRMED.
BRETT, J., specially concurs.
Concurrence Opinion
specially concurring:
I concur that the evidence was sufficient to submit this case to the jury, and that the conviction should be affirmed. However, insofar as it appears that this is the defendant’s first conviction defense counsel is admonished to consider filing an application under the provisions of