State v. Beggs

• Decision Date: 13 December 2005
• Docket Number: No. WD 64068.,WD 64068.
• Citation: 186 S.W.3d 306
• Parties: STATE of Missouri, Respondent, v. Shane M. BEGGS, Appellant.
• Court: Missouri Court of Appeals

186 S.W.3d 306

STATE of Missouri, Respondent, v. Shane M. BEGGS, Appellant.

No. WD 64068.

Missouri Court of Appeals, Western District.

December 13, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

Application for Transfer Denied April 11, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

Craig Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ELLIS, JJ.

EDWIN H. SMITH, Chief Judge.

Shane M. Beggs appeals the judgment of his convictions, after a jury trial in the Circuit Court of Carroll County, on Count I, of conspiracy to manufacture methamphetamine, § 564.016;¹ on Count II, of possession of methamphetamine, § 195.202; and, on Count III, of possession of a chemical with intent to create methamphetamine, § 195.420. As a result of his convictions, the appellant was sentenced, as a prior drug offender, § 195.275, to concurrent prison terms in the Missouri Department of Corrections of fifteen years on each count, which were ordered to run consecutively with sentences imposed in unrelated cases in Jasper, Greene, and Polk Counties.

The appellant raises four points on appeal. In Point I, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count I, conspiracy to manufacture methamphetamine, at the close of the State's and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof element that he had agreed with a third party to manufacture methamphetamine. In Point II, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count II, possession of methamphetamine, at the close of the State's and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof element that he "consciously and intentionally possessed the methamphetamine or that he had an awareness of the drug's presence and nature." In Point III, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count III, possession of lithium batteries with the intent to create methamphetamine, at the close of the State's and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof elements that: (1) he "intended for another person to convert or alter the lithium batteries to create methamphetamine"; or, (2) he "acted together with unknown third person with the purpose of promoting or furthering the conversion or alteration of the lithium batteries to create methamphetamine." In Point IV, he claims that the trial court plainly erred in entering its judgment convicting him of both Count I, conspiracy to manufacture methamphetamine, and Count III, possession of a chemical, with the intent to create a controlled substance, because it violated the double jeopardy protection of the conspiracy statute, § 564.016.7, prohibiting a person from being "charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense."

We affirm, in part, and reverse, in part.

Facts

On August 11, 2003, the appellant was charged, by indictment, in the Circuit Court of Lafayette County, with one count of conspiracy to manufacture methamphetamine, § 564.016; one count of possession of methamphetamine, § 195.202; and one count of possession of a chemical substance with an intent to create methamphetamine, § 195.420. The charges arose from events occurring on July 11, 2003, and July 12, 2003.

At around 4 a.m. on July 11, 2003, Officer Gary Frisendorf of the Concordia, Missouri, Police Department, observed a 1985 Chevy Blazer running a stop sign and driving erratically. Officer Frisendorf pulled the car over and approached the driver, who turned out to be the appellant. Officer Frisendorf observed that the appellant seemed nervous so he asked him to step out of the vehicle. While exiting the vehicle, the appellant almost fell down. As a result, Officer Frisendorf thought the appellant was intoxicated, either from alcohol or drugs, so he had him perform numerous field sobriety tests. The appellant performed and failed the walk-and-turn test, the one-leg-stand test, the horizontal gaze nystagmus test, and the alphabet test. After failing these tests, Officer Frisendorf concluded that the appellant was under the influence of either alcohol or drugs, and arrested him.

After placing the appellant under arrest, Officer Frisendorf transported the appellant to the Concordia Police Station and performed a Breathalyzer test. The test indicated that he had not consumed any alcohol, so Officer Frisendorf asked him why he seemed impaired. The appellant admitted that he had smoked methamphetamine earlier in the evening. The appellant was then transported to the Lafayette County Jail.

Detectives Fred Alkire and Donnie Hammond of the Lafayette County Narcotics Unit interviewed the appellant. After being read his Miranda rights, the appellant explained to the two detectives how he had missed the Odessa exit and ended up driving to Concordia where he was arrested for driving under the influence of methamphetamine. The appellant then explained that he lived with his girl-friend, Michelle Gould, at 301 W. Ottway in Odessa, Missouri. He admitted that there were pseudoephedrine pills, lithium batteries, and methamphetamine at his apartment.

Later that same day, two narcotic agents with the Lafayette County Narcotics Unit, Don Barker and William Falls, executed a search warrant for the appellant's apartment. The apartment included two bedrooms, a living room, a bathroom, a kitchen, a large foyer, and a garage. In the garage, Barker and Falls found dozens of empty pseudoephedrine boxes, which would have held over 4,000 pseudoephedrine pills. In a closet, the agents found twenty-two packages containing eighty-eight lithium batteries. In the master bedroom, they found a set of scales hidden in a flowerpot on top of the wardrobe. On the set of scales, they found a small amount of what was later determined to be methamphetamine.

The appellant's case proceeded to a jury trial in the Circuit Court of Carroll County, Missouri. At trial, Gould testified for the State. She testified that the appellant had moved in with her in late May or early June of 2003 and both of them had a "methamphetamine problem." After the appellant moved in, Gould testified that they began to go to stores to buy pseudoephedrine pills and lithium batteries with the intention of manufacturing their own methamphetamine. Gould also testified that she and the appellant had traded some of the pills for a gram and a half of methamphetamine, which they smoked. She further testified that the methamphetamine found on the scale was probably left over from the gram and a half that they had smoked.

At the close of the State's evidence, the appellant made a motion for a directed verdict of acquittal, which the trial court overruled. The appellant presented no evidence in his defense. The jury found the appellant guilty of all four offenses charged. The trial court subsequently sentenced the appellant to fifteen years on each count, to run concurrently.

This appeal follows.

Plain Error Standard of Review

The appellant concedes that he did not properly preserve his claims of error for appellate review because he failed to file a motion for new trial in a timely fashion. Hence, he requests plain error review, pursuant to Rule 30.20.²

Rule 30.20 provides, in pertinent part, that "[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or [a] miscarriage of justice has resulted therefrom." The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Mickle, 164 S.W.3d 33, 58 (Mo.App.2005). "In determining whether to exercise its discretion under plain error review, the appellate court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed a `plain' error, which resulted in manifest injustice or a miscarriage of justice." Id. Plain error for purposes of Rule 30.20 is error that is evident, obvious, and clear. Id.

Plain error review involves two steps. First, the court must determine whether the trial court committed an evident, obvious and clear error, which affected the substantial rights of the appellant. Id. at 58-59. As in the case of review for "regular" error, not every obvious error found in plain error review mandates reversal. Id. at 59. In the case of review for "regular" error, to be reversible, the found error must have prejudiced the appellant. Mickle, 164 S.W.3d at 59. Likewise, in the case of review for plain error, the error must have prejudiced the appellant, except such prejudice must rise to the level of manifest injustice or a miscarriage of justice. Id. Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Id.

I.

In both Points I and IV, the appellant attacks his conviction on Count I, conspiracy to manufacture methamphetamine. In Point I, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count I, at the close of the State's and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof element that he had agreed...