State v. Monath
| Decision Date | 23 January 2001 |
| Citation | 42 S.W.3d 644 |
| Parties | (Mo.App. W.D. 2001) . State of Missouri, Respondent, v. Bryan S. Monath, Appellant. WD57578 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Lafayette County, Hon. Robert H. Ravenhill
Counsel for Appellant: Kent Denzel
Counsel for Respondent: Philip M. Koppe
Opinion Summary: Bryan S. Monath appeals the trial court's judgment on his jury conviction of possession of a chemical with the intent to create a controlled substance. Police officers stopped the vehicle in which Monath was a passenger after multiple reports were made concerning the vehicle's occupants' attempts to purchase "large quantities of ephedrine." Upon stopping the vehicle, officers discovered several items commonly used to manufacture methamphetamine, including pseudoephedrine.
AFFIRMED.
Division Four holds:
(1) The trial court did not err in denying Monath's motion to suppress the pseudoephedrine and other evidence seized because reasonable suspicion existed for the initial stop of the vehicle.
(2) This Court declines, in its discretion, to review for plain error Monath's claim concerning alleged prosecutorial misconduct because Monath failed to demonstrate that manifest injustice or a miscarriage of justice will occur if this Court does not correct the complained of error. Missouri Rule of Criminal Procedure 30.20 (2000).
A Lafayette County jury convicted Bryan S. Monath (hereinafter "defendant") of possession of a chemical with the intent to create a controlled substance, section 195.420, RSMo 1994.1 The trial court then sentenced him as a prior and persistent offender, section 558.016, to ten years imprisonment. Defendant now appeals from his conviction, raising two points on appeal. First, he contends that the trial court erred in denying his motion to suppress evidence, in admitting at trial the pseudoephedrine that the police seized from the vehicle in which he was a passenger, and in admitting the testimony of his co-defendant Robert Glidden, because there was no reasonable suspicion upon which to base the initial stop of the vehicle in which he was a passenger. Second, he contends that the trial court plainly erred in failing to declare a mistrial sua sponte because of the prosecutor's improper jury argument.
We affirm.
Viewed in a light most favorable to the verdict, the facts are as follows:
On April 2, 1998, defendant and his acquaintance Robert Glidden entered a Break Time convenience store in Concordia, Missouri. Kelly Elling, Break Time's assistant manager, testified at defendant's suppression hearing that she recognized the two men because they had previously been in the store two or three times to buy Mini Thins containing pseudoephedrine.2 She also testified that Break Time had a policy that would not allow her to sell more than one bottle of "pseudo" Mini Thins per customer per visit. Upon entering Break Time, defendant went to the Mini Thin display, which contained only the "regular" Mini Thins but not those containing pseudoephedrine, and Mr. Glidden went to the cooler at the back of the store. Defendant then informed Mr. Glidden that "they [were] out," so Mr. Glidden walked out of the store. Defendant then asked Ms. Elling if there was a Dollar General store in town, obtained directions from her and left the store. As soon as he left, Ms. Elling obtained their license plate number and had her manager call the police. The police dispatcher testified that the Break Time manager had reported that the men attempted "to buy large quantities of cold medicine" and had given a description of the vehicle and the license plate number.
Herb Bryson, Concordia's chief of police, arrived at Break Time shortly after hearing the dispatch. Ms. Elling described to him defendant and Mr. Glidden, their vehicle and its license number, and their inquiry about buying "pseudo" Mini Thins. Chief Bryson knew that pseudoephedrine was commonly used in the manufacturing of methamphetamine.
In the meantime, defendant and Mr. Glidden arrived at the Dollar General. Defendant went inside and went directly to the aisle containing cold and cough medicines. He picked up six packages of the store's Swan nasal decongestant, a cold medicine containing pseudoephedrine, and took them to the front counter. Linda Bodenstab, the store's manager who had become "suspicious" when defendant acted "very nervous," informed him that Dollar General's policy prohibited the purchase of more than three cold medicines at a time. Defendant then put three of the boxes back, purchased three, and left the store. Ms. Bodenstab followed defendant to the door, noted the license plate number and description of the vehicle that defendant entered, and then called the Lafayette County Sheriff's Department. She reported that someone had just attempted "to buy large quantities of cold medication," and she was suspicious of him. She gave the dispatcher the license plate number and a description of the vehicle. Thus, another dispatch concerning defendant and Mr. Glidden's actions went out over the police radios. After requesting assistance, Chief Bryson, who was already in the parking lot of the Dollar General when he heard the second dispatch from the county, immediately went inside. Chief Bryson observed as Mr. Glidden, who had entered the store immediately after defendant made his purchase and whom Ms. Bodenstab had pointed out to Chief Bryson by nodding her head, also purchased three boxes of Swan cold medication containing pseudoephedrine. Mr. Glidden then left the store and walked to the vehicle where defendant was waiting. Defendant moved to the passenger side, and Mr. Glidden sat in the driver's seat.
After Mr. Glidden left the Dollar General, Chief Bryson exited the store to his patrol car. He testified that he intended to pull over the vehicle in which defendant was a passenger for a registration violation, but he could not do so under the ordinance until the vehicle exited the public parking lot to a city street. Thus, he waited for the vehicle to pull out, but defendant and Mr. Glidden remained in their parked vehicle. Therefore, Chief Bryson pulled out of the parking lot, "anticipating pulling them over to the side when they passed [him]." However, the vehicle did not follow him. Instead, the vehicle turned the opposite direction out of the parking lot. Chief Bryson was unable to turn around and lost contact. Thus, he again called for assistance from Lafayette County.
Officer Kent Shutt, a deputy sheriff with Lafayette County, heard the dispatches concerning attempts to purchase "large quantities of ephedrine" while on general road patrol. Dispatch eventually contacted Officer Shutt and advised him to head toward Concordia to assist Chief Bryson. Dispatch gave Officer Shutt a description of the vehicle and a license number.3 Once he arrived in Concordia, he contacted Chief Bryson and learned that Chief Bryson had just missed them. Chief Bryson again described the vehicle and the two men to Officer Shutt. As Officer Shutt proceeded out of town in the direction in which the vehicle had last been seen traveling, he came upon a gravel road. He noticed a vehicle with two occupants matching the description he was given parked several hundred feet down on the side of the gravel road. When Officer Shutt turned and drove toward the vehicle, it "took off," passed him and turned onto the highway. As the vehicle passed, Officer Shutt had observed its license number. He then did a U-turn, activated his lights, and pulled them over.As he approached the vehicle, Officer Shutt saw a Wal-Mart bag on the floorboard containing bottles and boxes of "what [he knew] to be pseudoephedrine and ephedrine." Officer Shutt asked Mr. Glidden to step back to his police vehicle with him, so he could obtain his identification and speak to him. After verifying Mr. Glidden's valid license, but finding that the license plate number he had did not match the vehicle, Officer Shutt obtained permission from Glidden to obtain his vehicle registration from the vehicle's glove compartment. In the glove compartment, Officer Shutt discovered eight Pyrex test tubes, which the deputy knew to be consistent with the use or manufacture of methamphetamines. Mr. Glidden "had no real explanation" for the tubes and verbally consented to a full search of his vehicle. Officer Shutt then discovered that in the Wal-Mart bag, which he had initially observed on the floorboard, were multiple containers of ephedrine or pseudoephedrine, more glass tubes, and some aluminum foil with "burn residue" on it. Mr. Glidden was arrested for the investigation of the production of narcotics. Defendant was arrested on an outstanding Pettis County warrant and also for investigation of narcotics production. Mr. Glidden later admitted that he intended to make methamphetamine and that defendant was helping him buy the pseudoephedrine he needed for this purpose.
Defendant was subsequently charged with possession of a chemical with the intent to create a controlled substance, section 195.420. At the hearing on defendant's pre-trial motion to suppress, Officers Bryson and Shutt, the two store clerks, Mr. Glidden and the police dispatcher all testified. The trial court denied his motion for suppression of evidence and statements arising from an illegal car stop and arrest. Defendant was subsequently convicted as charged by the jury and sentenced by the trial court. He then filed this appeal.
Defendant first alleges that the trial court clearly erred in denying his motion to suppress evidence and in thereafter admitting the pseudoephedrine at trial. He also argues that the trial court plainly erred in admitting the testimony of Mr. Glidden...
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