State v. Beadshaw
| Citation | 81 S.W.3d 14 |
| Decision Date | 29 March 2002 |
| Docket Number | WD57922 |
| Parties | State of Missouri, Respondent v. Beau Bradshaw, Appellant. WD57922 Missouri Court of Appeals Western District 0 |
| Court | Court of Appeal of Missouri (US) |
Appeal From: Circuit Court of Vernon County, Hon. Joseph B. Phillips
Counsel for Respondent: John M. Morris, III
Opinion Summary:
Beau Bradshaw appeals his conviction and sentence for stealing anhydrous ammonia in violation of section 570.030.4, RSMo 2000. Bradshaw claims that the evidence was insufficient to support his conviction because the state failed to prove that the anhydrous ammonia was stolen with the intent to use it to manufacture methamphetamine. He also claims that the court erred in overruling his application for change of venue under Rule 32.03, and that the court plainly erred in overruling his motion to suppress statements he made to the police and evidence the police found in his car.
Division holds: (1) Sufficient evidence supported Bradshaw's conviction for sealing anhydrous ammonia in violation of section 570.030.4, RSMo 2000. The plain language of the statute did not require the state to prove that the theft of the anhydrous ammonia was done with the intent to use it to manufacture methamphetamine. The state's inclusion of the intent to use the anhydrous ammonia to produce methamphetamine in the information and the verdict director was surplusage. Because the evidence supporting the necessary elements of stealing anhydrous ammonia was sufficient to find Bradshaw guilty beyond a reasonable doubt, Bradshaw suffered no prejudice from the inclusion of the surplusage in either the information or the instruction.
(2) The court did not err in overruling Bradshaw's application for change of venue and proceeding to trial in Vernon County. The right to a change of venue can be waived by the defendant's failure to object before the case has proceeded to trial. When Bradshaw proceeded with voir dire without objection, he was proceeding to trial, and he waived his right to change of venue.
(3) The court did not plainly err in admitting Bradshaw's statements to the police and evidence the police found in his car. Because the circumstances known to the officers prior to the arrest were sufficient to warrant a prudent individual to believe that Bradshaw was committing a criminal offense, the police had probable cause to arrest Bradshaw. Therefore, the court did not plainly err in admitting evidence obtained from the arrest.
This author would reverse and remand because Bradshaw's second point relating to his timely filed request for a change of venue is dispositive. He would hold that Bradshaw did not waive his right to a change of venue: his application was timely filed, and under these facts, he is entitled to a new trial.
Beau Bradshaw appeals his conviction and sentence for stealing anhydrous ammonia in violation of section 570.030.4, RSMo 2000.1 On appeal, Mr. Bradshaw claims that the evidence was insufficient to support his conviction because the State failed to prove that the anhydrous ammonia was stolen with the intent to use it to manufacture methamphetamine. He also claims that the trial court erred in overruling his application for change of venue under Rule 32.03, and that the trial court plainly erred in overruling his motion to suppress statements he made to the police and evidence the police found in his car. This court finds that the State was not required to prove that the anhydrous ammonia was stolen with the intent to use it to manufacture methamphetamine, and there was sufficient evidence of the essential elements of the offense to support the conviction. This court also finds that Mr. Bradshaw waived his right to a change of venue by proceeding to trial without objection. Finally, this court finds that there was probable cause to arrest Mr. Bradshaw, so the trial court did not plainly err in admitting the statements he made to the officers and the radio found in his car after his arrest. The judgment of the trial court is affirmed.Factual and Procedural Background
On appeal from a criminal conviction, this court reviews the evidence, and any inferences therefrom, in the light most favorable to the jury's verdict. State v. Mann, 23 S.W.3d 824, 827 (Mo. App. 2000). On August 30, 1998, at around 10:00 P.M., officers from the Missouri State Highway Patrol, and Vernon and Barton Counties, were conducting a surveillance operation at Metz Grain near Sheldon. The purpose of the surveillance operation was to reduce the theft of the fertilizer anhydrous ammonia, which is also used to manufacture methamphetamine.
During the surveillance, Lieutenant Detective Ron Peckman, of the Vernon County Sheriff's Department, watched the tanks from his patrol car, which was parked approximately 100 yards from the tanks. Deputy Paul Evitt of the Vernon County Sheriff's Department and Trooper Clinton Tyler Moreland of the Missouri State Highway Patrol were watching from behind the tanks. Lieutenant Peckman noticed a car drive by the tanks, slow down almost to a stop, and then quickly drive away. Lieutenant Peckman radioed Deputy Evitt and Trooper Moreland, who told him that a man, who was later identified as Terry King, had gotten out of the car, and was filling a red tank with Metz Grain's anhydrous ammonia.
When several of the officers approached Mr. King, Mr. King ran into a nearby soybean field. The officers caught Mr. King, who was carrying a two-way radio transmitter in addition to the tank of anhydrous ammonia. Lieutenant Peckman then questioned Mr. King about the person driving the car that dropped him off at the anhydrous ammonia tanks. Mr. King told Lieutenant Peckman and Highway Patrol Corporal Michael Stone that he and the driver of the car were "there to steal the anhydrous" to take it to another individual so they could make some methamphetamine. Although he did not know the name of the driver of the car, Mr. King said that he had the radio transmitter "to talk back to the guy in the car to tell him [when he was] done." Mr. King said that the driver of the car was supposed to come back to get him about an hour after he dropped him off.
Corporal Stone then left to patrol the area to look for the car, which Mr. King had said was white. While Lieutenant Peckman continued questioning Mr. King, a car drove by very slowly, and Mr. King said, "That's the vehicle." After the car drove by again and Mr. King identified it for the second time, Lieutenant Peckman radioed the Highway Patrol. Lieutenant Peckman told Corporal Stone that the suspect was a white male, who was driving a white Chevy.
Corporal Stone saw a car matching the same description drive by, and Corporal Stone signaled the driver of the car to pull over. Corporal Stone approached the car, opened the driver's side door, and ordered the driver, who was Mr. Bradshaw, to step out of the car. When Mr. Bradshaw got out of the car, Corporal Stone saw the ear piece to a radio transmitter sticking out from under the seat. Corporal Stone arrested Mr. Bradshaw, and informed him of his Miranda2 rights.
Barton County Sheriff William Griffitt drove to the location where Corporal Stone had arrested Mr. Bradshaw. When Sheriff Griffitt arrived, Corporal Stone showed him the radio transmitter he had found in Mr. Bradshaw's car. The radio transmitter found in Mr. Bradshaw's car and the radio transmitter Mr. King had been carrying were set to the same frequency.
As he was walking Mr. Bradshaw to one of the patrol cars, Sheriff Griffitt told Mr. Bradshaw, "It's pretty obvious what's going on here." Sheriff Griffitt then asked Mr. Bradshaw what he intended to do with the anhydrous ammonia. Mr. Bradshaw told Sheriff Griffitt that "[i]t was to make methamphetamine with." He also told the sheriff that he was going to get $500 for it. Sheriff Griffitt took Mr. Bradshaw back to Corporal Stone, and told Corporal Stone that Mr. Bradshaw had told him "that they were stealing anhydrous ammonia to make meth with, and that they were going to get $500 for the anhydrous ammonia." Mr. Bradshaw then told Corporal Stone, "That's what we were doing."
Mr. Bradshaw was later charged by information with the class D felony of stealing, in violation of section 570.030.4. A jury found Mr. Bradshaw guilty, and recommended that Mr. Bradshaw be sentenced to five years in prison and fined. The court then sentenced Mr. Bradshaw to five years in prison and fined him $5000. Mr. Bradshaw filed this appeal.Sufficient Evidence Supports Conviction
In his first point, Mr. Bradshaw argues that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence because the evidence was insufficient to support his conviction. When considering the sufficiency of the evidence to support a criminal conviction, this court's function is limited to a determination of whether there was sufficient evidence upon which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Black, 50 S.W.3d 778, 788 (Mo. banc 2001).
Mr. Bradshaw was convicted of violating section 570.030.4. This statute provides:
4. If an actor appropriates any material with a value less than one hundred fifty dollars in violation of this section with the intent to use such material to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues, then such violation is a class D felony. The theft of any amount of anhydrous ammonia is a class D felony.
Mr. Bradshaw argues that the State failed to produce sufficient evidence to convince the jury that either he or Mr. King intended to use the anhydrous ammonia to manufacture methamphetamine. Mr. Bradshaw argues that the evidence was...
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