State v. Fox, Docket No. Aro–13–430.
| Decision Date | 09 December 2014 |
| Docket Number | Docket No. Aro–13–430. |
| Citation | 105 A.3d 1029,2014 ME 136 |
| Parties | STATE of Maine v. Michael O. FOX. |
| Court | Maine Supreme Court |
Hunter J. Tzovarras, Esq. (orally), Bangor, for appellant Michael O. Fox.
Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty. (orally), Houlton, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶ 1] Michael O. Fox appeals from his conviction (Aroostook County, Cuddy, J. ) of several crimes, including one count of aggravated trafficking in scheduled drugs (Class A), 17–A M.R.S. § 1105–A(1)(B)(1) (2013).1 Fox argues that (1) the evidence is insufficient to support his conviction; (2) the trial court committed obvious error when it instructed the jury that it did not have to find that the manufacturing process had been completed in order to convict Fox of the trafficking offense; and (3) the State failed to prove all of the elements of aggravated trafficking because, although the parties signed a stipulation as to Fox's prior conviction for a similar offense, the stipulation was not entered in evidence. We affirm the judgment.
[¶ 2] In November 2011, an officer with the Aroostook County Sheriff's Department observed Fox and his wife engaged in a physical altercation in their parked car. The couple was on their way home to southern Maine after visiting family in Aroostook County. Fox was arrested on an outstanding warrant, and the officer searched the car. In the backseat, the officer discovered a bag containing several items, including plastic tubing, a can of acetone, and drain cleaner. These items aroused the officer's suspicions, so he contacted the Maine Drug Enforcement Agency (MDEA) and turned the items over to an MDEA special agent.
[¶ 3] Recognizing the items found in Fox's car as items typically used to manufacture methamphetamine, the MDEA agent went to the Aroostook County Jail to interview Fox. Fox explained that he had used the acetone to finish a guitar, that he used the gas-line antifreeze for his car's engine because it had a bad spark plug, and that he had used the drain cleaner to unclog a drain at his mother's house.
[¶ 4] The MDEA agent obtained recordings of phone calls Fox made from the jail to his wife. On the recording of the first phone call, Fox's wife could be heard advising Fox that the MDEA had questioned her and located the items in the car. In a second phone call, Fox asked his wife something to the effect of, “Did you get rid of that [stuff] that was out in the shed?” He told her he was worried that the MDEA would go to his mother's house. Fox also told his wife that a confidential informant had told MDEA agents that Fox had manufactured methamphetamine with a person named Larry Easler, and that he believed that another friend of his was the “rat.”
[¶ 5] After hearing these recordings, the MDEA agent went to Fox's mother's house and saw a shed behind the house. Fox's mother allowed the agent to search the shed. The agent found several more items typically used to manufacture methamphetamine, including a glass jug, sodium hydroxide (a crystal drain cleaner), a can of starter fluid, a makeshift funnel, duct tape, and a hand pump. Several of the items were tested for the presence of scheduled drugs. A piece of tubing with duct tape and a blue funnel both tested positive for methamphetamine residue. In another recorded phone call, Fox's wife informed Fox that agents had searched his mother's shed, and Fox responded with an expletive.
[¶ 6] Two MDEA agents went to Larry Easler's apartment and searched the apartment with Easler's consent. They did not find any methamphetamine manufacturing supplies. The agents asked Easler if he had any role in manufacturing methamphetamine with Fox. Easler admitted that he had purchased three boxes of pseudoephedrine for Fox with the understanding that, in return, he would receive some of the methamphetamine that was created.2
[¶ 7] An MDEA agent met with Fox's wife a few days later at her home in Biddeford. She admitted that while in Aroostook County she had purchased pseudoephedrine for her husband. She also told the agent that Fox had manufactured methamphetamine in the shed behind his mother's house.
[¶ 8] In March 2012, Fox was indicted on several counts, including aggravated trafficking in scheduled drugs (Class A), 17–A M.R.S. § 1105–A(1)(B)(1). The indictment alleged that Fox had a prior conviction on October 25, 2001, in Aroostook County, for aggravated trafficking in scheduled drugs. On the first day of trial, Fox's attorney and the prosecutor signed a stipulation acknowledging Fox's prior conviction, in order to avoid having the jury determine that Fox had such a conviction. Although the stipulation is undisputed, it does not appear to have been docketed by the clerk.
[¶ 9] At trial, Fox's mother testified that she had seen Fox, Fox's wife, and Easler in the shed having a drink. She also testified that Fox had used Drano to unclog a bathtub drain in her house. A friend of Fox's mother testified that Fox's mother allowed him to use the shed and that he kept supplies, including starter fluid, in the shed to use when working on his car. Fox's wife testified that she and Fox smoked methamphetamine in the shed, but that they purchased the drugs from Easler.
[¶ 10] An MDEA agent testified extensively about the “one pot” or “shake and bake” method of manufacturing methamphetamine. He explained that the process involves combining ammonium nitrate, pseudoephedrine, strips from lithium batteries, acetone, sodium hydroxide or lye, and camp fuel in a soda or Gatorade bottle, which creates a chemical reaction and allows the chemicals to “cook.” This process results in “meth oil,” a liquid form of methamphetamine. The agent explained that once meth oil is formed, it is typically transferred to a glass container, sometimes by using tubing. The manufacturer will typically then use muriatic acid, sulfuric acid, and salt to create hydrogen chloride gas. The gassing process results in the separation of a solid form of methamphetamine that is usable as soon as it dries. The agent testified that neither a bottle that could have been used as the “one pot” nor lithium batteries were found in the shed or in Fox's car.
[¶ 11] Fox moved for a judgment of acquittal at the close of the State's case and renewed the motion at the close of all of the evidence. The court denied the motion as to the aggravated trafficking charge. In instructing the jury concerning the elements of trafficking, the court gave the following definitions:
To traffick means to make, create, manufacture, to grow or cultivate, to sell, barter, trade, exchange or otherwise furnish for consideration.... To manufacture means to produce, prepare, propagate, compound, convert, or process, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis. The State does not have to prove that the process of manufacturing was completed, only that the defendant was producing, preparing, and processing a scheduled drug.
The court did not instruct the jury regarding the aggravating factor of Fox's prior conviction. Fox did not object to any portion of the jury instructions.
[¶ 12] The jury found Fox guilty of aggravated trafficking and three counts of violation of condition of release. In August 2013, Fox was sentenced to fourteen years of incarceration with all but nine years suspended and a four-year period of probation. The court also imposed concurrent six-month sentences for each of the other counts. Fox filed this appeal.
[¶ 13] First, Fox argues that the evidence is insufficient to support his conviction for trafficking because the evidence at trial established only that he possessed some, but not all, of the ingredients and materials that can be used to manufacture methamphetamine. He further asserts that the evidence was insufficient to link him with the residue found on the items in the shed. The State argues that there was sufficient direct and circumstantial evidence that Fox successfully manufactured methamphetamine.
[¶ 14] “In reviewing a challenge to the sufficiency of the evidence in a criminal matter, we consider the evidence in the light most favorable to the State to determine whether the trier of fact rationally could have found beyond a reasonable doubt every element of the offense charged.” State v. Johnson, 2014 ME 83, ¶ 10, 95 A.3d 621 (quotation marks omitted). A person is guilty of unlawful trafficking in a scheduled drug if the person “intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a scheduled drug,” and the drug is a schedule W drug. 17–A M.R.S. § 1103(1–A)(A) (2013). Methamphetamine is a schedule W drug. 17–A M.R.S. § 1102(1)(A) (2013). The definition of “traffick” includes “[t]o make, create, [or] manufacture.” 17–A M.R.S. § 1101(17)(A) (2013). “Manufacture” means “to produce, prepare, propagate, compound, convert or process, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis.” 17–A M.R.S. § 1101(4) (2013). A person is guilty of aggravated trafficking in a scheduled drug if the person violates section 1103 and, at the time of the offense, has one or more prior convictions for any felony drug offense involving a schedule W drug. 17–A M.R.S. § 1105–A(1)(B)(1).
[¶ 15] We have recently decided two cases addressing the proof necessary to support a conviction for manufacturing methamphetamine. First, we concluded that circumstantial evidence of the successful completion of the manufacturing process is sufficient to support a conviction, even where not all of the necessary materials are found in the defendant's possession. State v. Woo, 2007...
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