State v. Graham

• Decision Date: 05 October 1999
• Citation: 2 S.W.3d 859
• Parties: (Mo.App. W.D. 1999) State of Missouri, Respondent, v. Charles Graham, Appellant. WD55979
• Court: Missouri Court of Appeals

2 S.W.3d 859 (Mo.App. W.D. 1999)

State of Missouri, Respondent, v. Charles Graham, Appellant.

WD55979

Missouri Court of Appeals Western District

10/05/99

Appeal From: Circuit Court of Henry County, Hon. William J. Roberts

Counsel for Appellant: Ellen H. Flottman

Counsel for Respondent: Attorney General's Office

Opinion Summary: Charles Graham was convicted of second degree murder for the death of David Alexander in an explosion at a methamphetamine laboratory and common law attempt to manufacture a controlled substance in violation of section 195.211. He was sentenced to 30 and 15 years in prison, respectively, to run consecutively. Graham argues the trial court committed plain error when it instructed the jury to find him guilty of attempt to manufacture a controlled substance if it found that he took a substantial step to commit the offense, as this is the standard of proof for the inchoate statutory offense of attempt to commit a crime, set out in section 564.011, not for the specific crime of common law attempt to manufacture a controlled substance in violation of section 195.211, the crime with which he was charged.

Division One holds: (1) The trial court committed plain error in instructing the jury it could sentence Graham to the range of punishment permitted for the Class B felony of common law attempt to manufacture a controlled substance, and in sentencing him accordingly, where, as here, the verdict director submitted only substantial step attempt under section 564.011, a Class C felony carrying a lesser sentence. Although the state had the option of submitting the lesser degree of attempt set out in section 564.011, having done so, it was required to instruct the jury on the punishment for that crime and not on the punishment for the common law crime of attempt. Otherwise, the state would have the benefit of obtaining a higher level of punishment without the burden of proving the elements required for conviction of that crime.

(2) The conviction of felony murder is affirmed. The charge of common law attempt under section 195.211 was sufficient notice of the facts to be submitted under either common law or substantial step attempt. Conviction under the felony murder instruction did not require a finding of guilt of the underlying felony, just a finding of the facts constituting it. Here, the jury found Graham committed all of the elements of statutory attempt and the other elements of felony murder, and there is no contention that the evidence did not support this submission. Opinion Author: Laura Denvir Stith, JUDGE

Lowenstein and Riederer, JJ., concur.

Defendant-Appellant, Charles Graham, was convicted of second degree murder under Section 565.021.1(2) RSMo 1994,¹ for the death of David Alexander in an explosion at a methamphetamine laboratory, and was sentenced to 30 years in prison. He was also charged with common law attempt to manufacture a controlled substance in violation of Section 195.211, a Class B felony, and was sentenced to 15 years in prison, both sentences to run consecutively.

Defendant's only point on appeal is that the trial court committed plain error when it instructed the jury to find Defendant guilty of attempt to manufacture a controlled substance if it found that he took a substantial step to commit the offense, as this is the standard of proof for the inchoate statutory offense of attempt to commit a crime, set out in Section 564.011, not for the specific crime of common law attempt to manufacture a controlled substance in violation of Section 195.211, the crime with which he was charged. The latter offense requires the jury to find elements not required by Section 564.011 and not included in the jury instructions given below. The State agrees that the instruction submitted statutory attempt under Section 564.011 rather than the common law attempt with which Defendant was charged, but argues the State had the option of submitting the lesser degree of attempt set out in the statute, and that in any event no prejudice resulted since the evidence which would have supported the higher submission was uncontested.

This Court finds the trial court committed plain error in sentencing Defendant to a Class B felony of common law attempt to manufacture a controlled substance where, as here, the case was submitted as substantial step attempt under Section 564.011, a Class C felony carrying a far lesser sentence. Because this was a jury-sentenced case, we reverse and remand for a new trial on this charge. Our reversal and remand of the attempt submission does not require us to reverse the conviction for felony murder, however, as the jury properly found that Defendant committed murder in the course of committing an attempt to manufacture a controlled substance in violation of Section 564.011, and no error was made in instructing the jury as to the proper sentencing range for that crime.

I. STATEMENT OF FACTS

Considered in the light most favorable to the verdict, the record shows that Defendant and Mr. Alexander, both users of methamphetamine, had been friends since approximately 1986. In the spring of 1996, Defendant became acquainted with Mr. Duncan, who taught him how to manufacture methamphetamine. In the few months before the fire, Defendant asked his long time friend, Mr. Alexander, to make methamphetamine with him.

In pursuance of this plan, Defendant rented property upon which was located a white trailer and a shed. On September 1, 1996, he moved a mobile home onto the property, and began to live there. He bought several pounds of iodine crystals, a substance necessary for the manufacture of methamphetamine, purchased a brown utility trailer filled with equipment used in the manufacturing of methamphetamine, allowed Mr. Alexander to move into the mobile home with him, and they began to manufacture methamphetamine.

From evidence found in the house, the jury could infer that Defendant, Mr. Alexander, and Mr. Duncan had already been producing various batches of methamphetamine in the shed. At the time of the explosion, however, only Mr. Alexander and Mr. Duncan were in the shed. Defendant says this was because he was not involved in production of that batch of the drug and so did not commit the charged attempt to manufacture a controlled substance. Rather, Defendant testified, on the night before the explosion he was awakened by Mr. Duncan, who asked whether he could produce methamphetamine on Defendant's property. Defendant says he denied this request and went back to sleep, only to be jarred from sleep at 10 a.m. the following morning by the screams of Mr. Alexander and Mr. Duncan. The State presented contrary evidence that Defendant was simply in the mobile home working on other parts of the manufacturing process, however, and was a participant in the crime who was simply lucky enough not to be in the shed when the explosion occurred.

In any event, it appears that on the morning of the explosion, in an effort to quicken the pace of production in the shed, Mr. Alexander stirred an extremely volatile chemical solution with an electric paddle. This caused sparks to ignite the solution, leading to an explosion. Mr. Duncan was severely burned by the explosion. He ran from the shed, where he was found by a woman who immediately drove him to Cass County Hospital. Mr. Alexander was in even worse shape when he emerged from the shed, but was not immediately given medical attention, and lay collapsed on the ground instead. A couple who noticed the smoke drove up, saw Mr. Alexander, and offered assistance to Defendant. After initially rejecting this offer, Defendant only allowed the husband to move his cars away from the burning shed, while Defendant carried Mr. Alexander into his mobile home. The couple called 911. Eventually, Mr. Alexander was found in the mobile home, lying on the floor, and received medical attention. Blood tests showed that he had ingested methamphetamine only a few hours earlier. As a result of severe second and third degree burns, Mr. Alexander died the next day.

In searching the premises, including the vehicles brought onto the property by Defendant, the police found extensive evidence of methamphetamine production in the debris from the explosion in such places as Defendant's truck, the brown utility trailer, the motor home, the car port area, the Corvette, the white utility trailer, and a boat they found on the property. The police officers' search of the mobile home also revealed the existence of ephedrine in an array of different containers on the kitchen counter and in the kitchen cabinets, in the drawer next to the refrigerator, in the freezer, and in the bathroom. The police located other materials related to methamphetamine manufacture in the mobile home, including metham-phet-amine, a glass pipe, two receipts for the purchase of acetone, Red Devil Lye, plastic gloves, a funnel, and plastic tubing. Lastly, the police searched a safe in the living room and found a large amount of cash, a number of firearms, Defendant's receipt for the purchase of the mobile home, the lease agreement for the property, a book on how to manufacture methamphetamine, and two lists of ingredients required for the production of methamphetamine.

After hearing all the evidence and pursuant to the instructions provided by the trial court, the jury found Defendant guilty of felony murder and statutory attempt to manufacture a controlled substance, and recommended prison sentences of 30 years and 15 years, respectively. The court sentenced him in accordance with the jury's verdict. This appeal followed.

II. STANDARD OF REVIEW

Defendant failed to object below to the lower court's alleged error in instructing the jury on statutory attempt under Section 564.011 when the information charged Defendant with common law attempt under Section 195.211, but asks us to review for plain error. Error is plain if, on its face, we find substantial grounds to believe that the...