State v. Hougardy

• Decision Date: 02 April 2013
• Docket Number: No. WD 74913.,WD 74913.
• Citation: 396 S.W.3d 443
• Parties: STATE of Missouri, Respondent, v. Shawn K. HOUGARDY, Appellant.
• Court: Missouri Court of Appeals

396 S.W.3d 443

STATE of Missouri, Respondent,

v.Shawn K. HOUGARDY, Appellant.

No. WD 74913.

Missouri Court of Appeals, Western District.

April 2, 2013.

Gregory L. Barnes, for Respondent.

William J. Swift, for Appellant.

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.

JOSEPH M. ELLIS, Judge.

Shawn Hougardy appeals from his convictions of one count of attempted manufacture of methamphetamine, § 195.211, one count of resisting a lawful stop, § 575.150, and one count of tampering with physical evidence, § 575.100. Appellant also challenges the trial court's finding that he was a persistent offender. For the following reasons, the judgment is affirmed.

On April 1, 2011, Appellant was present in a house in Lexington, Missouri when Jerry Smith, who Appellant had grown up with, called one of the occupants seeking to acquire anhydrous ammonia. Smith was told none was available. After hearing of that phone call, Appellant called Smith back and asked what he was doing. Smith told Appellant that he and his girlfriend, Autumn Ratliff, who was on speaker phone with them, were going to make methamphetamine. Appellant said he wanted to be involved, that he could get the anhydrous ammonia, and that he was willing to drive them to get the necessary supplies. Smith and Ratliff agreed.

Appellant drove from Lexington to Kansas City and picked up Smith and Ratliff. Smith had a blue bag of pseudoephedrine with him. Appellant then drove to multiple stores where the three purchased equipment and supplies. Appellant provided the money for all of the purchases because Smith and Ratliff had no money.

At a Wal–Mart in Blue Springs, Appellant purchased a blue utility trash can while Ratliff purchased a large wooden spoon at another register. Having failed to find an open store that carried “liquid fire,” the three purchased drain cleaner, which they hoped would work as a suitable substitute, at a Wal–Mart in Oak Grove. They also purchased paper plates, coffee filters, and salt at that store.

Appellant next drove to a Pilot truck stop in Higginsville. They walked around separately in the store. Ratliff grabbed a pack of six lithium batteries and met Appellant and Smith near the bathrooms. She then went inside the bathroom, removed the batteries from their packaging, and placed them in her purse. The three then left the truck stop. The group's plan was for Appellant to then drop Ratliff off in Concordia and pick up Tony Davies to help Appellant and Smith get anhydrous ammonia in Houstonia, where Appellant's sister owned property.

Shortly before midnight, as he left the truck stop and turned onto Interstate 70, Appellant failed to signal his turn, and in the course of the turn, the passenger door of the truck briefly flung all the way open. Two Higginsville police officers in a marked police car witnessed those traffic violations. The officers activated their lights and siren and attempted to stop Appellant. In response, Appellant attempted to flee from the police at speeds reaching over 100 miles per hour.

The three occupants of the vehicle began yelling at each other to throw the equipment and supplies out the window. At about the 51.2 mile marker, Smith began throwing things out the passenger window at the police car. Shortly thereafter, Smith threw a trash bag containing beer bottles from the vehicle, which hit the police car and punctured the rear passenger tire.

Appellant made a sharp left turn onto Highway T, and Smith continued to throw items from the truck, including two white bags. With the flat tire slowing them down, the police officers lost sight of the truck as it went around an S curve. Appellant stopped the truck on an overpass, and the three fled on foot.

The truck was towed to an impound lot and searched. Inside the truck, officers found an 18–inch spoon, six lithium batteries, a blue utility trash container, a black bag containing a prescription bottle with Appellant's name on it and unused syringes, a Wal–Mart receipt, and a cell phone. Retracing the chase route, officers recovered a white bag with salt, coffee filters, a white bag containing blister packs of four or five different types of pseudoephedrine pills, a trash bag containing broken beer bottles, drain cleaner, a distilled water jug with the top cut off, additional blister packs of pills, a bottle of sulfuric acid, and a plastic milk container containing a liquid solution.

Around 7 a.m. the following morning, the police picked up Appellant walking down the same road the truck had been abandoned on. He appeared dirty, scratched-up, cold, and worn-out. Appellant was arrested, and two Wal–Mart receipts from the previous evening were found in his pockets.

After receiving Miranda warnings and agreeing to talk, Appellant admitted that he owned the truck and had been the one driving the truck the night before during the police chase. He identified Smith and Ratliff as the other two occupants of the truck. He admitted that he was with them when they were purchasing items at the various Wal–Mart stores and that he knew the items they were buying were going to be used to make methamphetamine. He stated that he was going to get some methamphetamine for helping Smith and Ratliff. He also admitted that he had given Smith and Ratliff money to make their purchases. Appellant said that, at the time the officers started chasing them, they had been on their way to pick up Davies and then acquire some anhydrous ammonia.

Appellant was subsequently charged by indictment with one count of attempted manufacture of methamphetamine, one count of resisting a lawful stop, and one count of tampering with physical evidence. At the end of the first count, a paragraph was included asserting that Appellant was a prior and persistent drug offender punishable under Sections 195.275 and 195.291.2.

Prior to trial, the trial court found that one of the prior convictions relied upon by the State was not a drug offense. The court then found Appellant to be a prior drug offender and a prior and persistent felony offender.

Appellant was tried by jury. Ratliff and various police officers involved in the case testified at trial. Appellant was ultimately found guilty as charged. The court sentenced Appellant to a term of twenty years imprisonment on the attempted manufacturing of methamphetamine count, seven years for resisting a lawful stop, and seven years for tampering with physical evidence. The sentencing range on the latter two convictions was enhanced due to the trial court's finding of persistent felony offender status. The two seven-year sentences were to run concurrently with each other and consecutively to the twenty-year sentence. Appellant brings three points on appeal.

In his first point, Appellant claims that the trial court erred in denying his motion for judgment of acquittal on the attempted manufacturing count because the evidence was insufficient to prove beyond a reasonable doubt that he had possessed the items that had been in his truck. He notes that his personal possession of the items was the only substantial step alleged in the jury instruction to support that conviction.

“We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.” State v. Watson, 290 S.W.3d 103, 105 (Mo.App. S.D.2009) (internal quotation omitted). “Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Woods, 284 S.W.3d 630, 638–39 (Mo.App. W.D.2009) (internal quotation omitted). “In applying this standard, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary.” Id. at 639 (internal quotation omitted). “[T]he relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation omitted).

Pursuant to Section 195.211.1, “it is unlawful for any person to ... attempt to distribute, deliver, manufacture, or produce a controlled substance” including methamphetamine. Section 564.011.1 provides that

[a] person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

Furthermore, “[a] person is criminally responsible for the conduct of another when ... [e]ither before or during the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.” § 562.041.1(2).

In this case, the verdict director was somewhat disjointed and, while including language expressing the general concept of accomplice liability, failed to allege actions on the part of Smith and Ratliff for which Appellant could be held liable as an accomplice. The jury was instructed:

A person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with the other persons with the common purpose of committing the offense or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about April 1, 2011, ... the defendant possessed items used in the production of methamphetamine, and

Second, that such conduct was a substantial step toward manufacturing or producing methamphetamine, a controlled substance, and

Third, that the...