State v. Glass

• Decision Date: 02 September 2014
• Docket Number: No. ED 100398.,ED 100398.
• Citation: 439 S.W.3d 838
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Joey Lee GLASS, Appellant.

439 S.W.3d 838

STATE of Missouri, Respondent
v.
Joey Lee GLASS, Appellant.

No. ED 100398.

Missouri Court of Appeals, Eastern District, Division Four.

Sept. 2, 2014.

439 S.W.3d 840

Craig A. Johnston, Woodrail Centre, Columbia, MO, for Appellant.

Chris Koster, Richard A. Starnes, Jefferson City, MO, for Respondent.

Opinion

ROY L. RICHTER, Judge.

Joey Lee Glass (“Defendant”) appeals from a judgment on a jury verdict finding him guilty of one count of attempt to manufacture a controlled substance (methamphetamine), in violation of Section 195.211, RSMo (2000);¹ one count of possession of a controlled substance (methamphetamine), in violation of Section 195.202 ; and two counts of unlawful possession of a firearm, in violation of Section 571.070.1(1). On appeal, Defendant claims that the trial court erred in (1) denying his motion for judgment of acquittal as to all counts because the evidence was insufficient to sustain convictions and (2) entering a judgment on the jury's guilty verdict on two counts of unlawful possession of a firearm because doing so constituted double jeopardy. We reverse the judgment with instructions to discharge Defendant.

I. BACKGROUND

Defendant was charged with attempt to manufacture methamphetamine (Count I), possession of methamphetamine (Count II), and two counts of unlawful possession of a firearm (Counts III and IV) for events that occurred on July 29, 2010. The facts, as adduced by the evidence during the July 29, 2013 jury trial, are not in dispute.

Drug task force officers had been investigating a death from a possible methamphetamine overdose. On July 29, 2010, they arrived at the last place the deceased man had been, the residence of Defendant's parents, Charles² and Melinda Glass, to interview potential witnesses. When the officers arrived, they separated Charles and Melinda for the interview process; Charles was questioned outside their mobile home, and Melinda was questioned inside. While inside, Melinda lifted “a wood piece” that was on the living room table, and Sergeant Michael Cheek observed rolling paper, a pen “tooter,”³ foil, pipes, bags of suspected marijuana, and cigarettes with suspected marijuana on that table. At this point, Sergeant Cheek went outside with Melinda to inform the other officers of his observations. Defendant, who had been staying on the living room couch of his parents' home, thenarrived

439 S.W.3d 841

on the premises. Sergeant Cheek testified that he did not recall whether Defendant had arrived on foot or in a vehicle. Defendant claimed ownership of everything in the living room, and the officers obtained consent from Charles and Melinda to search the remainder of the residence.

During their search of the mobile home, officers discovered two firearms in an open gun cabinet in the bedroom; a ledger with law enforcement radio scanner codes, scales, bags with white powder, tablets, foil with residue, a pen and a glass pipe with powder residue in that same bedroom; a “power hitter” canister and glass pipe with residue next to the living room couch; and “a lot of foil with burnt residue” in a coffee can in the living room. Sergeant Cheek also testified that there was a van, a tent, and a shed on the property, “within a city block” of the mobile home. In the van, officers discovered cans of starting fluid with holes punched in them. In the tent, they found a cold pack, tubing, Heet, Coleman fuel, a Camel tin containing a burnt pen barrel, a blue container containing bags of white powder, foil, and a coffee filter with residue. Sergeant Cheek testified that from his training and experience, he knew that the items found in the van and the tent were used in the manufacturing of methamphetamine. He testified that the items found in the living room, however, were for the consumption of methamphetamine.

During trial, the State offered into evidence the coffee filter with residue and three plastic bags with powder and residue. These items were all admitted, and a laboratory witness testified that all four exhibits had tested positively for methamphetamine. The parties also stipulated that Defendant had been convicted of a felony on November 17, 2005.

Defendant filed a Motion for Judgment of Acquittal at the Close of the State's Evidence and then a Motion for Judgment of Acquittal at the Close of All the Evidence, wherein he argued that the State had failed to make a submissible case as to all counts. Both motions were denied. After deliberation, the jury returned guilty verdicts on all counts. Sentencing was set for September 4, 2013. On that date, Defendant filed a motion for judgment notwithstanding the verdict and for new trial, wherein he alleged that the trial court erred in denying his motions for judgment of acquittal and argued that the State had presented insufficient evidence to sustain the guilty verdicts. The trial court denied this motion and sentenced Defendant to twelve years' imprisonment on Count I, seven years' imprisonment on Counts II and III, and four years' imprisonment on Count IV, all time to be served concurrently. This appeal follows.

II. DISCUSSION

Defendant raises four points on appeal. His first three points challenge the sufficiency of the evidence supporting the convictions for, respectively, attempt to manufacture methamphetamine (Count I), possession of methamphetamine (Count II), and unlawful possession of a firearm (Counts III and IV). Defendant's fourth point alleges that the trial court erred in entering judgment on the guilty verdict on Counts III and IV because convictions for two counts of unlawful possession of a firearm violated his double jeopardy rights. Because we find the first three points dispositive, we do not engage in a discussion of Defendant's fourth point.

Standard of Review

We review the sufficiency of the evidence in the light most favorable to the

439 S.W.3d 842

finding of guilt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). Evidence is sufficient to support a finding of guilt if a reasonable inference supports that finding even if other “equally valid” inferences do not. State v. Freeman, 269 S.W.3d 422, 424 n. 4 (Mo. banc 2008). “We disregard all inferences contrary to the verdict, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. We may not supply missing evidence or give the State the benefit of unreasonable, speculative or forced inferences.” State v. Taylor, 407 S.W.3d 153, 159 (Mo.App.E.D.2013) (citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) ). The State, however, is held to proof of the elements of the offense actually charged, not one that might have been charged. State v. Keeler, 856 S.W.2d 928, 931 (Mo.App.S.D.1993) (citing State v. Palmer, 822 S.W.2d 536, 540–41 (Mo.App.S.D.1992) ).

I. Attempt to Manufacture Methamphetamine

In his first point, Defendant alleges the trial court erred in denying his motion for judgment of acquittal as to Count I because there was insufficient evidence to support a conviction of attempt to manufacture a controlled substance. Specifically, Defendant claims that the evidence was insufficient to support a finding that Defendant had “combined chemicals and precursors with various items of drug paraphernalia.”

Like other attempt offenses, “[c]onviction on a charge of attempting to manufacture methamphetamine requires proof that: (1) the defendant took a substantial step toward commission of the offense; and (2) the defendant engaged in such conduct with the purpose of committing the offense.” State v. McLarty, 327 S.W.3d 557, 562 (Mo.App.S.D.2010). “A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.” Section 564.011; State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). Here, Defendant was charged with having “attempted to manufacture methamphetamine, a controlled substance, by comb[in]ing chemicals and precursors with various items of drug paraphernalia to create methamphetamine.” “ ‘Where the act constituting the crime is specified in the charge, the State is held to proof of that act; and a defendant may be convicted only on that act.’ ” State v. Armstrong, 863 S.W.2d 374, 377 (Mo.App.E.D.1993) (citing State v. Edsall, 781 S.W.2d 561, 564 (Mo.App.S.D.1989) ). When the evidence fails to show that a defendant committed a crime in the specific manner charged, reversal is required. Edsall, 781 S.W.2d at 565. Therefore, the elements of this offense, as charged, are: (1) that Defendant combined chemicals and methamphetamine precursors with paraphernalia, and (2) that Defendant did so with the purpose of manufacturing methamphetamine.

In the event of joint control over premises where the controlled substance was found, more evidence than just a defendant's presence...