State v. Underwood

TITUS, Presiding Judge.

In a two-count information, defendant was charged with twice violating § 195.-020.6¹ by selling to an undercover patrolman “an imitation controlled substance, to wit: a white powder represented by the defendant to be heroin....” Following a court trial, defendant was declared guilty of both counts and sentenced to five years’ imprisonment on each count to run consecutively. Defendant appealed.

Per stipulation and by testimony of the state’s lone witness (which was the only evidence proffered), the defendant sold the trooper clear heat-sealed plastic squares that contained white powder which the defendant assured the trooper was “some fire heroin that’s some bad stuff.” The state’s proof showed the sold substance was not heroin; however, the state nowhere undertook to prove what it actually was.

The statutes with which we are concerned read:

Section 195.010 ... (19) ‘Imitation controlled substance’ means a substance that is not a controlled substance, which by dosage unit appearance (including col- or, shape, size and markings), or by representations made, would lead a reasonable person to believe that the substance is a controlled substance. In determining whether the substance is an ‘imitation controlled substance’ the court or authority concerned should consider, in addition to all other logically relevant factors, the following: ... (b) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect; (c) Whether the substance is packaged in a manner normally used for illicit controlled substances; ... (f) ... An imitation controlled substance does not include a noncontrolled substance that was initially introduced in commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate. Furthermore, an imitation controlled substance does not include a placebo or registered investigational drug either of which was manufactured, distributed, possessed or delivered in the ordinary course of professional practice or research;

Section 195.180. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.

Relying on § 195.010(19)(f), defendant asserts the court nisi erred in denying his motion for judgment of acquittal because the state failed to adduce evidence that the white powder sold the trooper in clear heat-sealed plastic squares was not an excluded imitation controlled substance, i.e., the state failed to prove the powder was not “a noncontrolled substance that was initially introduced in commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate.” Or, as argued by defendant, as the state’s evidence failed to show what precise noncontrolled substance was sold by defendant to the trooper there was insufficient evidence to warrant the conviction.

It is to be noted, which defendant apparently overlooks, that § 195.010(19)(f) provides “An imitation controlled substance does not include_” (Emphasis supplied). Thus the emphasized portion terms this subsection of the definition as an exception. Also to be remembered is that under § 195.180, in any pleading “and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception ... or exemption, contained in this law, and the burden of proof of any such exception ... or exemption, shall be upon the defendant.” Ergo, the state had no burden of proving the white powder had not been introduced into commerce prior to defendant’s sale thereof to the trooper. Rather that burden was on defendant and as he presented absolutely no evidence, he did not meet that burden. State v. Miller, 588 S.W.2d 237 (Mo.App.1979); State v. Lovelace, 585 S.W.2d 507 (Mo.App.1979); State v. Kane, 586 S.W.2d 812 (Mo.App. 1979); State v. Netzer, 579 S.W.2d 170 (Mo.App.1979).

Judgment affirmed.

FLANIGAN and GREENE, JJ., concur.

1 . Statutory references are to V.A.M.S.