State v. Condict
| Decision Date | 29 October 2001 |
| Docket Number | No. 23946.,23946. |
| Citation | 65 S.W.3d 6 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Barry W. CONDICT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
A jury convicted Barry Condict ("Defendant") of possession of chemicals with the intent to create a controlled substance in violation of § 195.420.1 The trial court sentenced Defendant as a prior and persistent offender to twelve years' imprisonment with the Department of Corrections. Defendant appeals this conviction and sentence alleging (1) there is insufficient evidence to support the conviction, (2) instructional error, and (3) § 195.420 is unconstitutionally vague.
This court affirms the judgment of conviction and sentence.
In January 2000, Detective Mike Williams ("Williams") of Sikeston, Missouri, went to the home of Terry Schaumann ("Schaumann") to investigate a possible case of child endangerment. After talking with Schaumann and informing her of the allegations, Williams requested permission to search the house. Ultimately, Schaumann allowed Williams to make the search. At that point, Defendant came from the bathroom "wiping his hands with what appeared to be toilet paper." Defendant sat down beside Schaumann, and Williams began his search of the house.
During his search, Williams found a laundry basket containing clothes, which Defendant admitted belonged to him. Later, Williams searched the laundry basket more thoroughly and found lithium batteries, acetone, Defendant's address books, fuel cleaner, and lids from Mason jars underneath the clothing. As Williams continued to search the house, he found a straw in the child's bedroom closet.2 When Williams asked Schaumann about the straw, she admitted it contained methamphetamine and that it belonged to her. Thereon, Williams arrested Schaumann but allowed Defendant to leave the house.
After Defendant left, Williams "got to thinking about the suspicious nature of [Defendant] wiping his hands with toilet paper" and undertook a search of the bathroom. Therein, Williams detected an odor of alcohol and discovered a jar and "white paper like items" in the reserve tank of the toilet. The water in the tank was "milky white." A Mason jar was in the tank and inside the jar were coffee filters and water. Next, Williams searched the kitchen of the house where he found coffee filters, spoons, and salt. Other officers found an altered fire extinguisher and a pestle. Based on Williams' training regarding methamphetamine labs, he believed the discovered items were all suited for use in producing methamphetamine; accordingly, he seized them as evidence. Filters and liquid from the Mason jar were placed in two separate containers and sent to a crime lab for testing.
On January 12, 2000, Williams arrested Defendant and then questioned him about the seized items. Defendant admitted the following items belonged to him: the acetone, lithium batteries, spoons, Mason jar and lids, pestle, and the fire extinguisher. Further, Defendant stated the items found in the reserve tank were "pills that were soaking down[,]" and he placed those items in the tank when he saw the officers at the door of Schaumann's house. Laboratory tests of the container contents revealed an ether solution which contained methamphetamine and ephedrine.3
In an amended information, the State charged Defendant with possession of "acetone, lithium batteries, salt, denatured alcohol and lab paraphernalia" with the intent to manufacture a controlled substance. At trial, the State prepared and the trial judge gave a verdict-directing instruction which read, inter alia:
Additional facts are provided when necessary in analyzing and discussing Defendant's points relied on.
Defendant's first point urges reversal on the theory there was insufficient evidence upon which to sustain his conviction. The first subpart of this claim is rooted in the fact that the State submitted its case in the conjunctive, that is, it hypothesized in the verdict director that "defendant possessed lithium, acetone, and ephedrine" with the intent to create a controlled substance. (Emphasis supplied.) Defendant insists that by submitting the verdict director in this fashion, the State undertook the burden of showing by appropriate evidence that Defendant knowingly possessed all of the items with the requisite criminal intent. See State v. Ellinger, 549 S.W.2d 136, 138 (Mo.App.1977). Accordingly, Defendant argues, inter alia, that the State could not and did not prove the offense, as hypothesized in the instruction, beyond a reasonable doubt, because "lithium is not a proscribed substance under § 195.420—it is not a chemical listed in § 195.400.2, nor is it an immediate precursor, as defined in § 195.010(20)."
In pertinent part, § 195.420 provides:
....
....
(Emphasis supplied.)
Section 195.400 (referred to in § 195.420.1) has a subsection 2 which lists thirty-four substances the sale or transfer of which must be reported to the Missouri Department of Health. Two of the chemicals hypothesized in the verdict director, acetone and ephedrine, are in the § 195.400.2 list. However, as Defendant correctly points out, lithium, the third chemical mentioned in the verdict director, is not listed.
The fact that lithium is unlisted means that other language in § 195.420.1 must be considered, specifically, the provision that also makes it a crime to possess "precursor ingredients of methamphetamine ... as established by expert testimony pursuant to subsection 3 of this section, with the intent to manufacture ... a controlled substance." However, uncertainty about what the legislature intended when it enacted § 195.420 is at once apparent because in subsection one, the statute requires expert testimony to prove a chemical is a "precursor ingredient," while subsection three requires the testimony to demonstrate the chemical is an "immediate precursor ingredient." The uncertainty about what the legislature intended is compounded by the fact that the word "precursor" as used in § 195.420.1 is not explicitly defined, whereas the phrase "immediate precursor" as found in § 195.420.3 is statutorily defined. In that regard, § 195.010(20) defines an "immediate precursor" as a substance that:
The State argues that all it had to prove was that the lithium batteries were "precursor ingredients" of methamphetamine which Defendant possessed with the intent to manufacture methamphetamine. The State insists it proved that the batteries were precursor ingredients via the testimony of Kevin Glaser, narcotics investigator with the Missouri Highway Patrol. He testified that either lithium or sodium metal is a "precursor" in the manufacture of methamphetamine, that is, one or the other is "necessary to manufacture ... methamphetamine." Glaser further testified that initially commercial sodium metal was most often used to illicitly manufacture methamphetamine. However, once sodium metal producers learned of such use, "[t]hey made it a lot more difficult for the criminal manufacturer to get hold of [sodium metal;]" accordingly, lithium stripped from commercial batteries is now the "most ... common" metal used in the illicit manufacture of methamphetamine.
Defendant disagrees, saying that despite Glaser's testimony, the State did not prove that lithium was an "immediate precursor" as that phrase is defined in § 195.010(20). He argues that as required by § 195.010(20)(c). Thus, according to Defendant, "there was insufficient evidence that `lithium' is an immediate precursor of methamphetamine."
The question presented, therefore, is whether the legislature intended by § 195.420 to criminalize possession of chemicals proven by expert testimony to be "precursor ingredients" of methamphetamine (when possessed with the intent to...
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