State v. McAdam, 88,139

• Decision Date: 11 April 2003
• Docket Number: No. 88,139,88,139
• Citation: 31 Kan.App.2d 436,66 P.3d 252
• Parties: STATE OF KANSAS, Appellee, v. BRIAN KEITH McADAM, Appellant.
• Court: Kansas Court of Appeals

31 Kan.App.2d 436

66 P.3d 252

STATE OF KANSAS, Appellee, v. BRIAN KEITH McADAM, Appellant.

No. 88,139

Court of Appeals of Kansas

Opinion filed April 11, 2003.

Randall L. Hodgkinson, deputy appellate defender, for appellant.

Frederick B. Campbell, county attorney, and Phill Kline, attorney general, for appellee.

Before BEIER, P.J., ELLIOTT and GREEN, JJ.

GREEN, J.:

Brian Keith McAdam appeals from his convictions by a jury of conspiracy to unlawfully manufacture methamphetamine, attempted possession of anhydrous ammonia, attempted theft, and conspiracy to possess anhydrous ammonia. On appeal, McAdam contends that the evidence was insufficient to sustain his conviction of conspiracy to unlawfully manufacture methamphetamine and attempted theft. We disagree. In addition, McAdam contends that the evidence was insufficient to show that either he or his accomplices attempted to possess anhydrous ammonia or conspired to possess anhydrous ammonia in an unapproved container. We agree and reverse. McAdam further contends that the trial court wrongly failed to give the jury a cautionary instruction regarding an accomplice testimony. We disagree and affirm. Additionally, McAdam maintains that the trial court imposed an illegal sentence. We disagree. Finally, McAdam contends that the attorney fees assessed against him were excessive. We direct the trial court to determine the appropriate amount of attorney fees which can be imposed under K.S.A. 2002 Supp. 22-4513, K.A.R. 105-5-7, and the Board of Indigents' Defense Services (BIDS) reimbursement tables.

McAdam was staying at the home of his friend Marcus Maley. Maley lived with his girlfriend and her son. Maley and McAdam agreed to manufacture methamphetamine. They had made methamphetamine before and decided it was time to make more. Maley usually would act as a lookout and "go fer." He would help McAdam by removing ephedrine pills from blister packs, poking holes in cans of ether, and performing other menial tasks.

On this occasion, Maley and McAdam had everything they needed to make methamphetamine except anhydrous ammonia. They decided to use Maley's car to steal anhydrous ammonia from the Kincaid Co-Op.

Before leaving, Casey Carter joined Maley and McAdam at Maley's home. While Maley changed into dark clothes, either McAdam or Carter loaded Maley's girlfriend's car with the materials for the manufacturing process. The group left in Maley's car at around 9:30 or 10 that night. Maley drove, Carter sat in the front passenger seat, and McAdam rode along in the back seat. Maley and McAdam brought along two cooler-like water jugs to carry the anhydrous ammonia and a larger cooler. During the trip, McAdam operated a scanner and looked through a list of scanner frequencies. McAdam did not have any particular responsibility during the trip. Once at the Kincaid Co-op, Carter got out of the car to steal the anhydrous ammonia as planned.

Deputy Max Skelton was also at the Kincaid Co-op, checking on the anhydrous ammonia tanks, when he saw tracks, smelled ammonia, and saw a white male running away from the anhydrous ammonia tanks into the woods. As he was attempting to stop the man, Skelton saw a car turn on its headlights and slowly drive by. When Skelton stopped the car, he observed that Maley was driving the car and McAdam was in the back seat. Undersheriff Darin Dalsing arrived and noticed frost on one of the hoses of an anhydrous ammonia tank. During the stop, Maley gave the officers consent to search his car. In the trunk of the car, Skelton discovered an ice chest containing a single water jug that smelled of anhydrous ammonia and a margarine container with an orange powder residue that smelled of ether. This residue later tested positive for methamphetamine. The officers also discovered two scanners, a list of scanner frequencies, a single walkie-talkie, and night vision goggles in the car.

Maley asked Dalsing what he could do to stay out of jail. Dalsing told Maley it depended on what information he could provide. Maley stated he could give the officer McAdam's methamphetamine lab.

Maley then gave the officers consent to search his house and his girlfriend's car. In the trunk of his girlfriend's car, officers discovered a shotgun, starting fluid, coffee filters, a face mask, lithium batteries, rock salt, drain opener, a weed sprayer, propane bottles, a heater, a two-liter bottle full of ether, a digital scale, rubber gloves, and ten bottles of ephedrine tablets. In Maley's garage, officers discovered a bag of green vegetation and zig-zag rolling papers. A few days later, a Kincaid employee found two water jugs, one of which was half full of anhydrous ammonia, in some trees in the vicinity of the anhydrous ammonia tanks.

Maley gave officers a written statement that McAdam had given him some money to give him a ride. While Maley was driving, an unknown individual got in the car, and they drove to the Kincaid Co-Op to steal anhydrous ammonia. Although Maley was originally charged with a number of crimes related to this incident, these charges were later dismissed without prejudice in exchange for his testimony against McAdam.

McAdam was charged with 10 counts: (1) attempted unlawful manufacture of methamphetamine, (2) conspiracy to commit unlawful manufacture of methamphetamine, (3) possession of methamphetamine, (4) felony possession of drug paraphernalia, (5) attempted possession of anhydrous ammonia, (6) criminal possession of a firearm, (7) attempted theft, (8) misdemeanor possession of drug paraphernalia, (9) criminal trespass, and (10) conspiracy to possess anhydrous ammonia. During the jury trial, Maley testified that he had lied in his written statement to the police. McAdam elected not to present any evidence.

The jury found McAdam not guilty of Count 1, attempt to commit unlawful manufacture of methamphetamine; Count 3, possession of methamphetamine; Counts 4 and 8, possession of drug paraphernalia; Count 6, possession of a firearm; and Count 9, criminal trespass. The jury found McAdam guilty of Count 2, conspiracy to commit unlawful manufacture of methamphetamine; Count 5, attempt to unlawfully possess anhydrous ammonia; Count 7, attempted theft; and Count 10, conspiracy to unlawfully possess anhydrous ammonia.

McAdam was sentenced to 173 months in prison. He was also ordered to pay $4,890 in attorney fees.

Was there sufficient evidence of an overt act to support McAdam's conviction for conspiracy to commit unlawful manufacture of methamphetamine?

McAdam first maintains that there was insufficient evidence at trial to support his convictions. "When sufficiency of the evidence is attacked, the standard of review is `whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).

McAdam first attacks his conviction for conspiracy to commit unlawful manufacture of methamphetamine based on insufficient evidence. The first element of conspiracy is "an agreement between two or more persons to commit or assist in committing a crime.... [Citation omitted.]" State v. Smith, 268 Kan. 222, 227, 993 P.2d 1213 (1999); see K.S.A. 21-3302(a). The agreement can be either expressed or implied. 268 Kan. at 228.

McAdam maintains that there was insufficient evidence to show that a party to the agreement to manufacture methamphetamine acted in furtherance of the agreement. He admits there was evidence that he and Maley entered into an agreement to manufacture methamphetamine. However, he argues that there was no evidence that Carter, the person who actually attempted to steal the anhydrous ammonia, was part of the agreement.

The jury drew a reasonable conclusion that because Carter had joined Maley and McAdam in their quest to obtain anhydrous ammonia, he had agreed to help them manufacture methamphetamine. Because Maley drove Carter to the Kincaid Co-Op and because McAdam was checking scanner frequencies in the backseat of Maley's vehicle, it was reasonable for the jury to conclude that Carter was a coconspirator. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Penn, 271 Kan. 561, 564, 23 P.3d 889 (2001). Thus, there was sufficient evidence to support the inference that Carter had agreed to the conspiracy.

The second element for the crime of conspiracy is an overt act in furtherance of the conspiracy. This element must be alleged and proved to have been committed by the defendant or by a coconspirator. K.S.A. 21-3302(a). The overt act alleged in the complaint is that McAdam or a coconspirator attempted to steal anhydrous ammonia. The jury was similarly instructed that it had to find that McAdam or a coconspirator attempted to steal anhydrous ammonia.

McAdam asserts that the attempt to steal anhydrous ammonia was not an overt act as a matter of law. In State v. Hill, 252 Kan. 637, 642, 847 P.2d 1267 (1993), our Supreme Court noted: "`An overt act which completes crime of conspiracy to violate federal law is something apart from conspiracy and is an act to effect the object of the conspiracy, and need be neither a criminal act, nor crime that is object of conspiracy, but must accompany or follow agreement and must be done in furtherance of object of agreement.' [Citation omitted.]" (quoting Black's Law Dictionary 1104 [6th ed. 1990]).

Although McAdam cites State v. Chism, 243 Kan. 484, 759 P.2d 105 (1988), and State v. Garner, 237 Kan. 227, 699 P.2d 468 (1985), in support of his argument that an overt act must extend beyond "mere preparation," the language in both cases referred to overt acts for the crime of attempt, rather than conspiracy. Here, there was sufficient evidence that the act of attempting to steal anhydrous ammonia was done in furtherance of the parties'...