State v. Daggett
| Decision Date | 01 August 2005 |
| Docket Number | No. 26157.,26157. |
| Citation | 170 S.W.3d 35 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Shawn D. DAGGETT, Defendant-Appellant. |
| Court | Missouri Supreme Court |
John M. Albright, Daniel T. Moore, Poplar Bluff, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.
Shawn D. Daggett ("Appellant") was charged, as a prior and persistent offender, with the class D felony of possession of drug paraphernalia with intent to use the paraphernalia in combination with each other to manufacture methamphetamine, pursuant to Section 195.233.1 Following his conviction by a jury, he was sentenced to four years imprisonment.
The facts of the case are as follows: Deputy Sheriff Craig Bolin ("Deputy Bolin") was patrolling in Stoddard County, Missouri, during the night of July 24, 2003, and the early morning of July 25, 2003. At about 11:30 P.M. on July 24, he noticed a small, gray GMC pickup truck traveling east on U.S. Highway 60, west of Dexter, Missouri, cross the center line several times. He also noticed that the truck's license plate light was not working. Deputy Bolin stopped the vehicle that was occupied by Appellant and Amy Guzman ("Guzman").
Deputy Bolin told Appellant why he had stopped them, and asked Appellant where they were going. Appellant replied that he and Guzman were going to Saxton, Missouri to stay all night with a friend. Deputy Bolin testified that Appellant spoke with a nervous, shaky voice and that he noticed a propane cylinder without a valve sitting in the bed of the pickup truck. He also noticed a large brass valve sitting in the bed beside the cylinder. Deputy Bolin asked Appellant if he could search the vehicle and Appellant gave him permission to do so, but the search produced no additional items. When Deputy Bolin asked Appellant about the propane tank, Appellant told him that he had not had time to get the valve replaced on the tank. Deputy Bolin also asked about the brass valve, and Appellant stated that it was his father's and that it had something to do with anhydrous ammonia, but he was not sure what. In responding to Deputy Bolin's question about whether he thought the items were suspicious, Appellant told him that he knew that people used the items to steal anhydrous ammonia, but that he did not do that sort of thing. Deputy Bolin asked both Appellant and Guzman if they had come to Stoddard County to steal anhydrous ammonia, and both replied that they had not. He then told them that they were free to go.
Deputy Bolin continued his patrol on Highway 60, and about thirty minutes later arrived in Essex, Missouri. He regularly patrolled Essex because of thefts of anhydrous ammonia at the Ross Cotton Gin. As he approached the gin, he saw some headlights come on behind a building and saw a vehicle moving near the anhydrous ammonia storage area. Deputy Bolin turned around in a driveway and faced the opposite direction, so as to face the vehicle as it came toward him. The vehicle approached the intersection near where Deputy Bolin sat, stopped for an unusual length of time, and turned left. Deputy Bolin noticed that it was the same vehicle that he had stopped earlier, and he followed the truck as it made another turn and then stopped in the roadway. Deputy Bolin activated his emergency lights, got out of his vehicle, and noticed that Appellant was approaching his car. Although he told Appellant to go back and get into his vehicle, Appellant went back and stood by the driver's side door. Guzman remained in the truck.
Deputy Bolin approached the truck and asked Appellant what he was doing stopped in the road. Appellant replied that he was looking for "Mary's house." He said that he thought she lived in Essex, but he was not sure where and he did not know her last name. Deputy Bolin noticed that the propane cylinder and the brass valve were still in the back of Appellant's pickup truck. Appellant said,
Deputy Bolin returned to his car, contacted his dispatcher regarding the stop, and asked the dispatcher to contact Deputy Dennis Fowler ("Deputy Fowler") of the SEMO Drug Task Force. Deputy Fowler arrived about fifteen minutes later. He recognized Appellant's vehicle as one he had seen on May 7, 2003, in Butler County, Missouri, when he and Deputy Scott Johnston, a narcotics officer with the SEMO Drug Task Force, ("Deputy Johnston") were serving an arrest warrant. Deputy Fowler noticed that the propane cylinder had the valve removed and testified that in his investigation of methamphetamine laboratories, he had seen many tanks similar to this one with the valves taken off. He also stated that he had seen many valves similar to the brass valve in the back of Appellant's truck during his investigations and that those valves were used to capture anhydrous ammonia in a tank similar to the propane cylinder found in Appellant's truck. He said that neither of these items could be used separately in the manufacture or production of methamphetamine. The items could be combined in that manufacture, however, by filling the tank with anhydrous ammonia and then screwing the valve into the top of the tank to prevent the anhydrous ammonia from evaporating. A tank such as that is used to store the anhydrous ammonia until it is time to "cook" the methamphetamine, at which time the valve can be removed to release the anhydrous ammonia. Typically, in order to steal anhydrous ammonia, a hose would be used to transfer it from the storage tank to the propane cylinder. No hose was found in Appellant's possession or in the area, though Deputy Fowler said he does not always find hoses when someone is trying to steal anhydrous ammonia. There was no discoloration of the propane cylinder or the valve consistent with exposure to anhydrous ammonia, and there was no anhydrous ammonia found in the propane cylinder on the night of the stop. Appellant and Guzman were arrested.
Missouri Highway Patrolman Chris Graves ("Patrolman Graves") testified that he spoke with Appellant on the afternoon of July 25, 2003. He advised Appellant of his Miranda rights before speaking with him, and Appellant stated that he understood his rights and agreed to speak with Patrolman Graves. Appellant informed Patrolman Graves that he and Guzman had a plan to steal anhydrous ammonia. Appellant stated that Guzman, with whom he was in love, was addicted to methamphetamine and that she wanted him to help her acquire some. He said they planned to steal anhydrous ammonia then trade it to a methamphetamine cook for some of the drug. Patrolman Graves also testified about the use of the propane cylinder and the valve in the manufacture of methamphetamine, stating that such tanks were commonly used to store and transport anhydrous ammonia, with the valve capping the tank. He testified that it would be possible, but not preferable, to obtain anhydrous ammonia using the propane cylinder without using a hose.
Finally, Deputy Johnston testified regarding his previous contact with Appellant. He described an incident in Butler County, Missouri, where Appellant and Guzman drove up to a residence while Deputy Johnston was there serving an arrest warrant. Deputy Johnston observed that a partial methamphetamine laboratory was in the back of Appellant's truck at that time, including two glass jars containing a clear liquid ("seed jars"), an acid generator, and salt. He testified that these items are typically used in the manufacture of methamphetamine.2
Appellant presents three points on appeal. We will set out his first point relied on verbatim as the State contends that Appellant makes arguments not included in this point.
The trial court erred in denying the motion for judgment of acquittal in that the law requires jury instructions to be supported by substantial evidence and instruction no. 5 required proof the Appellant was combining drug paraphernalia but the only paraphernalia the Appellant possessed was an LP tank consisting of a tank and valve.
Appellant was convicted under Section 195.233, which states:
1. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of sections 195.005 to 195.425.
2. A person who violates this section is guilty of a class A misdemeanor, unless the person uses, or possesses with intent to use, the paraphernalia in combination with each other to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues in which case the violation of this section is a class D felony.
The statute requires that for a class D felony, the paraphernalia must be possessed with intent to be used "in combination with each other to manufacture" methamphetamine. Id.
Jury Instruction No. 5 was the verdict directing instruction, patterned after MAI-CR (3d) 325.22 (1999) relating to Section 195.233, though modified to submit the unlawful possession of paraphernalia as a class D felony. It stated, in pertinent part:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about July 25, 2003, in the County of Stoddard, State of Missouri, [Appellant] possessed a propane tank and a connecting valve, and
Second, that the propane tank and connecting...
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