State v. McElvain

• Decision Date: 29 June 2007
• Docket Number: No. WD 66589.,WD 66589.
• Citation: 228 S.W.3d 592
• Parties: STATE OF MISSOURI, Respondent, v. Joseph K. McELVAIN, Appellant.
• Court: Missouri Court of Appeals

228 S.W.3d 592

STATE OF MISSOURI, Respondent, v. Joseph K. McELVAIN, Appellant.

No. WD 66589.

Missouri Court of Appeals, Western District.

June 29, 2007.

Kent Denzel, Columbia, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

Before NEWTON, P.J., BRECKENRIDGE and ELLIS, JJ.

PATRICIA BRECKENRIDGE, Judge.

Joseph K. McElvain appeals his conviction for felony stealing, under section 570.030, RSMo Cum.Supp.2004, after a jury trial. Mr. McElvain waived jury sentencing and the trial court sentenced him to two years imprisonment. In his first point on appeal, Mr. McElvain asserts that the trial court abused its discretion in overruling his motion to exclude and in admitting evidence concerning a plastic bag and its contents that police officers recovered because the officers failed to preserve the material found in the bag according to the procedure set forth in section 490.733.2, RSMo 2000.¹ In his second point on appeal, Mr. McElvain contends that the trial court abused its discretion in denying his motion to suppress evidence that an eyewitness identified him from a photograph shown to the eyewitness by a deputy and in overruling his objection to that evidence at trial. Mr. McElvain claims the identification procedure was impermissibly suggestive and unreliable. Finding no error, the trial court's judgment is affirmed.

Factual and Procedural Background

Sometime between 12:00 and 12:30 p.m. on June 7, 2005, A.J. McConkey drove past an MFA elevator in Albany and noticed a motorcycle parked in the lot close to a row of anhydrous ammonia tanks. Mr. McConkey thought that the motorcycle looked out of place and parked his car to see what was going on. He then saw a man standing by an anhydrous ammonia tank step on the front tire of the tank, put a plastic bag over the valve of the tank, and turn the valve on. Mr. McConkey noticed that the bag "puffed up like it had something in it." Mr. McConkey then went to the scale house and told the elevator manager, David Kent, "that there was somebody taking some anhydrous." Mr. Kent looked out the window and saw someone drive off the lot on a motorcycle, carrying a bag in his left hand. About 12:45 p.m., Mr. Kent called the police.

Gentry County Sheriff Eugene Lupfer and Deputy Nick Tompkins responded to Mr. Kent's call. Sheriff Lupfer and Mr. Kent inspected the anhydrous ammonia tanks and discovered that one of the tanks had frost around the valve, which indicated that ammonia had flowed through the valve within the previous ten to fifteen minutes. They also discovered that the dust cap covering the valve had been removed.

Mr. Kent told the officers that the suspect was wearing jeans and a tank top and riding a motorcycle. Deputy Tompkins then went looking for the suspect. Deputy Tompkins called Greg Harner, an officer with the ATF NITRO task force, and picked up Officer Harner at his residence. Officer Harner had observed Mr. McElvain leaving his home on a motorcycle around 12:00 to 12:30 p.m. that day. As Deputy Tompkins and Officer Harner were driving on State Route 6, about six miles north of Albany, they encountered Mr. McElvain walking along the highway, wearing jeans and a tank top. Mr. McElvain told the officers that his motorcycle had broken down. Deputy Tompkins told Mr. McElvain that he matched the description of an individual that had been seen leaving the MFA depot. The officers placed Mr. McElvain in handcuffs and put him in the back seat of the patrol car.

The officers then drove Mr. McElvain to the road where Mr. McElvain's motorcycle had broken down. Deputy Tompkins noticed a locked bag on top of the motorcycle's gas tank, which had "a very faint odor of ammonia, rotten eggs." Deputy Tompkins was familiar with the smell of anhydrous ammonia from his "[d]ays at the farm when [he] was working on the farm, around farmers, row cropping." Deputy Tompkins took pictures of the motorcycle and then transported Mr. McElvain to the sheriff's department for booking.

Sheriff Lupfer also went to the location where Mr. McElvain's motorcycle was parked. He searched the area surrounding the motorcycle and found a clear plastic bag lying in the grass about twenty feet north of where Mr. McElvain's motorcycle was found. The bag had about a teacup full of liquid in the bottom, was very cold, had frost on the outside, and had "an ammonia smell to it." The grass around where the bag was found had turned black.

Sheriff Lupfer did not have any equipment with which to preserve the liquid in the bag and did not know of anyone to call who could take a sample. While Sheriff Lupfer wanted to preserve the substance in the bag, he realized that within thirty minutes the substance "was going to be gone, would be evaporated." Therefore, in an effort to preserve the substance, one of the deputies retrieved a coffee can with a lid from his car. Sheriff Lupfer wadded the plastic bag up, put it in the coffee can, and then put the lid on the can. The officers then called the station to have someone bring a cooler to them so that they could put the coffee can in the cooler. While they waited for someone to bring the cooler, the officers sat the coffee can along the side of the road. When someone arrived with the cooler, the officers put the coffee can in the cooler and then transported the cooler to the station. The officers placed the cooler in a storage shed at the sheriff's department, where it remained until pretrial.

About 3:00 p.m. on the afternoon of June 7, Mr. McConkey went to the sheriff's department. Deputy Tompkins showed Mr. McConkey the picture of Mr. McElvain that he had taken when he booked Mr. McElvain. The picture of Mr. McElvain was the only picture shown to Mr. McConkey. Mr. McConkey told Deputy Tompkins that the individual in the picture appeared to be the person he observed at the MFA tank.

The State subsequently charged Mr. McElvain with the class C felony of stealing, under section 570.030, RSMo Cum. Supp.2004. On December 19, 2005, a jury found him guilty. Mr. McElvain waived jury sentencing and the trial court sentenced him to two years in prison. This appeal followed.

Standard of Review

In both Mr. McElvain's points on appeal, he challenges the trial court's admission of certain evidence. The trial court has broad discretion in determining whether to admit or exclude evidence. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). This court will reverse the "`trial court's ruling on the admission of evidence only if the court has clearly abused its discretion.'" Id. (footnote omitted). The trial court abuses its discretion "`when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.'" Id. (footnote omitted). Moreover, this court reviews "`for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" Id. at 223-24 (footnote omitted). "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id. at 224.

No Abuse of Discretion in Admitting Evidence Concerning Contents of Plastic Bag

In his first point on appeal, Mr. McElvain asserts that the trial court abused its discretion in overruling his motion to exclude and in admitting evidence concerning the plastic bag and its contents, because the officers failed to preserve the material found in the bag according to the procedure set forth in section 490.733.2. Moreover, Mr. McElvain claims that, in failing to collect representative samples of the material in the bag before allowing it to dissipate, the officers acted in bad faith.

Prior to trial, Mr. McElvain filed a motion to suppress "all physical evidence concerning a plastic bag, its contents, and any testimony regarding such evidence." Mr. McElvain claimed that the evidence should be suppressed because no laboratory tests were performed on the contents of the bag and the officers did not retain a representative sample of the contents, as required by section 490.733.2. Thereafter, Mr. McElvain filed a "Motion to Exclude Evidence Amending Previously Filed `Motion to Suppress,'" in which he made the same argument.

On December 15, 2005, the trial court held a hearing on Mr. McElvain's motion to exclude and took the matter under advisement. Review of the transcript of the trial reflects that the trial court denied Mr. McElvain's motion to exclude. At trial, when the State began to question Sheriff Lupfer about the plastic bag, Mr. McElvain objected on the grounds that admission of the evidence regarding the contents of the plastic bag violated his due process rights because the officers' conduct violated section 490.733.2. The trial court overruled Mr. McElvain's objection.

The section referenced in Mr. McElvain's objection, section 490.733.2, provides:

Notwithstanding the provisions of section 575.100, RSMo, and with the approval of the affected court, any law enforcement officer who seizes hazardous materials as evidence related to a criminal investigation may collect representative samples of such hazardous materials, and destroy or dispose of, or direct another person to destroy or dispose of the remaining quantity of such hazardous materials.

(Emphasis added.) Mr. McElvain argues that the plain language of section 490.733.2 "requires that a police officer, before destroying seized evidence of hazardous materials, obtain approval from the affected court to do so." He further claims that, under the statute, an "officer needs the court's permission to maintain only a representative sample." In essence, the gist of Mr. McElvain's claim is that the trial court should have excluded all of the evidence and testimony surrounding the contents of the plastic bag at trial as a sanction for the officers' violation of section 490.733.2.

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