State v. Mclarty

• Decision Date: 29 November 2010
• Docket Number: No. SD 30044.,SD 30044.
• Citation: 327 S.W.3d 557
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Plaintiff–Respondent,v.Donald K. MCLARTY, Defendant–Appellant.

327 S.W.3d 557

STATE of Missouri, Plaintiff–Respondent,

v.Donald K. MCLARTY, Defendant–Appellant.

No. SD 30044.

Missouri Court of Appeals, Southern District, Division Two.

Nov. 29, 2010.

Alexa Irene Pearson, Columbia, MO, for Appellant.Chris Koster, Atty. Gen., Daniel McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.JEFFREY W. BATES, Judge.

Donald McLarty (Defendant) was charged by amended information with the class B felony of attempted manufacture of methamphetamine. See § 195.211.¹ A jury found Defendant guilty of that crime. Defendant presents five points on appeal. Finding no merit in any of these points, we affirm. For ease of analysis, we address Defendant's points out of order. The relevant facts will be provided in connection with our discussion of each point.

Point I

Defendant's first point challenges the sufficiency of the evidence to support his conviction. We view the evidence and all reasonable inferences derived therefrom in the light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). “We defer to the jurors' superior position to weigh and value the evidence, determine the witnesses' credibility and resolve any inconsistencies in their testimony.” State v. Lopez–McCurdy, 266 S.W.3d 874, 876 (Mo.App.2008). Viewed from this perspective, the following evidence was presented at trial.

At approximately 11:00 a.m. on February 7, 2009, Detective Jeremy Yates of the Kennett Police Department received a call that two men were purchasing pseudoephedrine pills at the Kennett Wal–Mart. The caller provided a description of the two men. Detective Yates went to Wal–Mart and parked outside. He observed two men, who matched the caller's description, leave the store. Both men were carrying bags. They walked together toward a white 2002 Dodge Stratus (the Stratus). Detective Yates provided this information to Lieutenant Tim Trowbridge of the Kennett Police Department. He arrived at the Wal–Mart while the two men were getting into the Stratus.

Lieutenant Trowbridge provided the license plate number on the Stratus to dispatch and was told that the plate was registered to another vehicle. The Stratus left the parking lot, and Lieutenant Trowbridge followed it. When the Stratus pulled into a parking lot without making a proper turn signal, Lieutenant Trowbridge initiated a traffic stop. He observed a 26 oz. box of table salt sitting in the back window. Christopher Barbre (Barbre) was sitting in the driver's seat; Defendant was sitting in the front passenger seat.

Kennett Police Corporal Craig Moody arrived at the scene to assist. He went to the passenger side where Defendant was seated and asked him to get out of the vehicle. Defendant's speech was slurred and incoherent, and his eyes were dilated. He was unable to maintain his balance without leaning on the Stratus. He was unable to be questioned by the police at that point.

In the front passenger seat where Defendant had been sitting, there were some plastic Wal–Mart bags. One bag contained an unopened box of Sudafed brand pseudoephedrine cold medication and a bottle of hydrogen peroxide. Another bag contained lithium batteries and a receipt. There was another unopened box of Sudafed cold medication in the vehicle. Police also saw four empty boxes of Aleve–D, Claritin–D and Equate brand pseudoephedrine cold medication in the front passenger compartment. Two of these empty boxes were lying on the floorboard between the car door and right side of the passenger seat where Defendant had been sitting. There were eight loose blister packs of pseudoephedrine pills (each containing 10 pills) on the front passenger seat. Some of these blister packs had been removed from the box and placed into a small paper sack. Barbre and Defendant were arrested. A bag of marijuana was found in Defendant's right front pocket during a search incident to arrest. In addition to the pseudoephedrine, the following items were recovered from the Stratus during a subsequent inventory search: (1) a coffee grinder; (2) coffee filters; (3) lithium batteries; (4) receipts from various stores; and (5) a glass pipe with methamphetamine residue on it in the center console between the front seats.² Some of the receipts were from various Wal–Mart stores and showed the purchase of cold medication on five different occasions in January and February 2009.³ One receipt from the Schnucks Supermarket in Cape Girardeau showed the purchase of three Ace instant cold compresses on January 15th. Another receipt showed that Barbre had purchased a coffee grinder and lithium batteries at the Malden Wal–Mart on February 7th.

The amended information charged Defendant with attempting to manufacture methamphetamine in violation of § 195.211 because he “knowingly compiled pseudoephedrine, lithium batteries, filters, salt and hydrogen peroxide, and such conduct was a substantial step toward the commission of the crime....”

At trial, the jury was read a stipulation that Wal–Mart pharmacy records showed: (1) Barbre purchased a box of Equate pseudoephedrine 12–hour tablets containing 2.4 grams of pseudoephedrine at the Poplar Bluff store on February 6, 2007; (2) Defendant purchased one box of Claritin–D 120 mg. cold tablets containing 3.6 grams of pseudoephedrine at the Malden store on February 7, 2009 at 9:46 a.m.; (3) Barbre purchased another box of Equate pseudoephedrine 12–hour tablets containing 2.4 grams of pseudoephedrine at the Kennett store on February 7, 2009 at 10:58 a.m.; and (4) Defendant purchased a box of Aleve Cold & Sinus tablets containing 2.4 grams of pseudoephedrine at the Kennett store on February 7, 2009 at 11:06 a.m. All three brands of cold medication were found in the Stratus when it was searched by police.

Lieutenant Trowbridge, who was part of the Bootheel Drug Task Force, gave the following testimony. He had been trained about how methamphetamine was clandestinely manufactured. He was familiar with various methods and techniques that were used to make the drug. Pseudoephedrine is the principal ingredient that is necessary to manufacture methamphetamine. One method of acquiring this pseudoephedrine is to have someone purchase and accumulate the necessary pseudoephedrine pills. Law enforcement officers refer to such persons as “ingredients getters[.]” It is illegal for a person to purchase more than 3.6 grams of pseudoephedrine in a 24–hour time period. ⁴ One method of making the drug, known as the “Shake–and–Bake” recipe, uses lithium batteries to get the reaction going. A coffee grinder is commonly used to crush the pseudoephedrine pills. Ace instant cold compresses contain ammonium nitrate, which is one the main ingredients in the “Shake–and–Bake” method of producing methamphetamine. Ammonium nitrate, table salt, muriatic acid and hydrogen peroxide are used during the “shake” part of the recipe. Coffee filters are used to filter out the methamphetamine.

Crime lab technician Joanna Sides also had received significant training with respect to the various methods used in the clandestine manufacture of methamphetamine. She had observed large numbers of items seized from clandestine labs. She gave the following testimony:

Q. And in this case, the police have testified that they seized a number of pseudoephedrine pills or pills containing pseudoephedrine, lithium batteries, table salt, coffee grinder, coffee filter, hydrogen peroxide. Are those all items that are normally associated by you in connection with the clandestine manufacture of methamphetamine?

A. Each of those items can be used to make methamphetamine.

Q. And together would indicate to you that that was something that was occurring or going to occur if those things were all assembled in one place?

A. If they were all assembled in one place, yes, it would be suspicious.

At the close of all of the evidence, defense counsel filed a motion for judgment of acquittal. The trial court denied the motion.

On appeal, Defendant contends the evidence was insufficient to support his conviction for attempting to manufacture methamphetamine in violation of § 195.211. Defendant argues the State failed to prove that: (1) Defendant or Barbre compiled each of the items listed in the information; and (2) Defendant or Barbre actually or constructively possessed such items. Appellate review is limited to determining whether there was sufficient evidence from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). Methamphetamine is a Schedule II controlled substance. See § 195.017.4(3)(c). Except as authorized by §§ 195.005–195.425, it is unlawful for any person to attempt to manufacture a controlled substance. § 195.211.1. The definition of “manufacture” includes the production, preparation, compounding or processing of a controlled substance. § 195.010(23). Conviction 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. Tilley v. State, 202 S.W.3d 726, 737 (Mo.App.2006); State v. White, 14 S.W.3d 121, 126 (Mo.App.2000). A “substantial step” is defined as “conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.” § 564.011.1 RSMo (2000). “Therefore, an attempt to manufacture methamphetamine requires conduct strongly corroborative of the act of producing methamphetamine.” White, 14 S.W.3d at 127.

Because the State presented evidence implicating Barbre in the commission of the charged offense, it is important to note that all persons who act in concert to commit a crime are equally guilty under Missouri law. State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001)...