719 S.W.2d 108 | Mo. Ct. App. | 1986
Defendant was indicted, jury-tried and convicted of selling marijuana/marihuana (also called “pot”) in violation of § 195.-020.
Seven to ten days ere July 24, 1984, undercover Springfield Police Officer Adams met one Dougherty to buy pot. Defendant accompanied Dougherty which was Adams’ first encounter with defendant. Dougherty, defendant, Adams and another undercover officer (Wells) went to a market where Adams gave Dougherty $60 to buy half an ounce of pot. Dougherty did not return with either the money or the pot. On July 24, 1984, defendant took Adams and Wells to another market vowing he could get them marijuana for $60. Adams gave defendant the sum but defendant returned the money shortly thereafter saying he could not get any then but “might later.” The two undercover officers on July 27, 1984, took defendant to a Springfield residence occupied by one Suriette. After defendant’s initial meeting alone with Suriette and upon motioning to Adams, the latter entered the premises to find Suriette holding a tray containing loose and bagged marijuana. Adams and defendant seated themselves on separate chairs while Sur-iette sat on a couch. Samples of marijuana and a lighted “joint” were passed among the trio and Adams simulated taking a drag on the cigarette. Ultimately Adams indicated which bag he wanted and handed it, together with $30 to defendant who, in turn, passed the bag and money to Sur-iette. The bag of marijuana was then returned to Adams by Suriette via defendant. Before departing, Adams undertook to arrange a bigger deal with Suriette who told him to make such arrangements through defendant. Upon returning defendant to his home, Adams declined defendant’s request for a “joint” out of the purchase which Adams described as a common practice of “pinching the bag” for setting up the deal. In exchange therefor, defendant accepted Adams’ offer of $5.00.
Defendant’s first claim is that the trial court erred in failing to direct a verdict of acquittal because the evidence was insufficient to support a finding that he sold marijuana.
Section 195.010(32): “ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.” Under this statutory definition of “Sale” it has been held that “proof that defendant acted either as the principal in the sale or as-an agent for either the buyer or seller was sufficient to sustain his conviction for selling marijuana.” State v. Perkins, 650 S.W.2d 339, 341[3] (Mo.App.1983); State v. Miles, 599 S.W.2d 948, 950 (Mo.App.1980).
Defendant’s second point relied on is that the trial court erred in permitting the state, over defendant’s objections, to introduce evidence of defendant’s involvement in attempted drug transactions which transpired prior to the happenings of July 27, 1984, for which he was convicted. There is no disputing that the state may not introduce evidence of other criminal acts of the defendant unless such evidence is relevant for some purpose other than to show a probability that he committed the crime on trial because he is a man of criminal character. State v. Perkins, 680 S.W.2d 331, 334[2] (Mo.App.1984). Nonetheless, “evidence of other crimes is admissible ... where it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v. Trimble, 638 S.W.2d 726, 732[4] (Mo. banc 1982), cert, denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983). Evidence that defendant accompanied Dougherty when the latter met with the undercover agents for the express purpose of purchasing pot and Dougherty’s double crossing of Adams, coupled with defendant’s comment that Dougherty’s betrayal “wasn’t good business,” went to show how defendant became acquainted with Adams et al. and his awareness of what the intended transaction entailed. Also, defendant’s taking $60 from Adams only three days before the charged incident for the avowed purpose of buying marijuana and his subsequent revelation that he was unsuccessful then but could buy it “maybe later,” constituted direct evidence of defendant’s intent to undertake a “sale” of pot as that term is defined in § 195.010(32).
We need not decide whether the proof that defendant merely accompanied Dough-erty on the first reported occasion or whether his later avowed unsuccessful and unwitnessed attempt to buy pot, presented evidence sufficient to convict him of any crime. But even so assuming, the history of his conduct ere July 27,1984, was admissible under the so-called “complete story” exception. That is, use of other crimes evidence is permissible “[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.” McCormick on Evidence § 190, at 558-59 (3d ed. 1984); Perkins, 680, S.W.2d at 334[5]. Clearly the evidence of defendant’s previous activities aided the jury in putting his actions of July 27, 1984, in context. The point is denied.
In defendant’s third and final point he claims the trial court erred when it overruled defense counsel’s objection to a remark made by the prosecutor in closing argument. The point has this background. In closing argument the prosecution stated: “Ladies and gentlemen, it’s clear. It’s simple. There’s nothing complicated about it. [The defendant] sold marijuana to Officer M.J. Adams on the 27th day of July, 1984, in Greene County. The State has proven its case beyond a reasonable doubt. Well, what was the defendant’s case? Answer
No one disputes that no person shall be compelled to testify against himself in a criminal cause, Mo. Const, art. I, § 19, or that if a defendant shall not avail himself of his right to testify that fact shall not “be referred to by any attorney in the case_” § 546.270; Rule 27.05(a). Both direct and indirect references to defendant’s failure to testify are forbidden. State v. Chunn, 657 S.W.2d 292, 294[2] (Mo.App.1983). Important to deciding whether a direct reference to the failure to testify has been made is whether the words “accused” or “defendant” and “testify” or their equivalents have been used. State v. Hill, 678 S.W.2d 848, 850[3] (Mo.App.1984). No such language was employed here and we find no direct reference. To be an indirect reference the remark, when viewed in context, must be the type that would cause the jury to infer the remark referred to defendant’s failure to testify. State v. Reed, 583 S.W.2d 531, 534 (Mo.App.1979). The critical question is whether the remark drew the jury’s attention to the lack of testimony by defendant himself; and in answering that question, we must examine the statement in the particular context in which it was made. Hill, 678 S.W.2d at 850[5 — 6].
Before we become mesmerized with generalities and legal expressions applicable to the bulk, specifics pertinent to the case at hand should be observed. At trial defendant objected to the prosecutor’s argument because “I think” the state was referring to the fact defendant had not “put on any evidence in this case.” After the prosecutor denied he intended such a reference, the court indicated he could not “tell at this point” and would overrule “the objection until I hear some more.” No additional objection was made and in such circumstances the trial court could properly assume the remainder of the prosecutor’s statement had clarified the argument so that defendant no longer found it objectionable. State v. Zweifel, 570 S.W.2d 792, 794[3] (Mo.App.1978), rev’d on other grounds on reh’g, 615 S.W.2d 470 (Mo.App.1981). Also, at most the prosecutor’s comment related to defendant’s failure to offer evidence, not to his failure to testify. State v. Mason, 588 S.W.2d 731, 737[9] (Mo.App.1979) and cases there cited. Of similar import is the fact that defendant’s trial objection was that the state’s argument implied defendant had not “put on any evidence” whereas in his motion for new trial defendant differently contends the argument indicated “We have heard nothing from the defendant.” It is axiomatic a defendant on appeal or in a motion for a new trial may not enlarge an objection made at trial, which defendant has obviously undertaken to do here. State v. Singleton, 694 S.W.2d 828, 830[4] (Mo.App.1985); State v. Robinson, 694 S.W.2d748, 750[5] (Mo.App.1985); State v. Cannady, 660 S.W.2d 33, 37[6] (Mo.App.1983); State v. Comstock, 647 S.W.2d 163, 165[2] (Mo.App.1983); State v. Byrnes, 619 S.W.2d 791, 793[5] (Mo.App.1981). The point is denied.
Affirmed.
. Statutory and rule references are to V.A.M.S. and V.A.M.R.
