State v. Morgan

• Decision Date: 24 May 2012
• Docket Number: No. ED 96746.,ED 96746.
• Citation: 366 S.W.3d 565
• Parties: STATE of Missouri, Respondent, v. Ricky Eugene MORGAN, Appellant.
• Court: Missouri Court of Appeals

366 S.W.3d 565

STATE of Missouri, Respondent,
v.
Ricky Eugene MORGAN, Appellant.

No. ED 96746.

Missouri Court of Appeals,
Eastern District,
Division Two.

April 10, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied May 24, 2012.

[366 S.W.3d 570]

Emily N. Kaiser, St. Charles, MO, for appellant.

Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

The defendant, Ricky Eugene Morgan, appeals the judgment entered on a jury verdict finding him guilty of attempt to commit the offense of stealing anhydrous ammonia, Section 570.030 RSMo 2000.¹ Defendant advances five points of trial-court error. He first challenges the sufficiency of the evidence to support his conviction. Defendant claims the State presented insufficient evidence to prove that he possessed the equipment to steal anhydrous ammonia, or that he had taken a substantial step towards stealing the anhydrous ammonia. In his four remaining points, Defendant contends the trial court erroneously admitted certain evidence at trial. He first takes issue with the testimony of the law-enforcement officer, in which the officer stated he knew defendant's “past” and that he “should have asked” defendant if he had used methamphetamine. Defendant contends this testimony constituted inadmissible evidence of uncharged misconduct. He next alleges that testimony regarding text messages in his cell phone lacked foundation. He further maintains the evidence seized from the car he was driving was the product of an unlawful stop, in that no reasonable suspicion justified the stop of the vehicle. And finally, he asserts that his statement that he had used drugs earlier in the day was the result of an unlawful, pre-

[366 S.W.3d 571]

Miranda² custodial interrogation. We hold that the State presented sufficient evidence to support the conviction. We further hold that either the court properly admitted the evidence or that the defendant failed to properly preserve the evidentiary issues for appeal. We therefore affirm.

Factual and Procedural Background

Defendant's conviction in this case stem from events that occurred in the early morning hours of December 11, 2010, on a rural Marion County highway north of Hannibal, Missouri.³ On that night, at about 1:00 o'clock in the morning, two deputies from the Marion County Sheriff's Office were each on patrol. Deputy Dennis McAfee was in his vehicle on a county road, just north of where it intersects with Highway 168, the highway leading north out of Hannibal. Deputy McAfee pulled over and shut off his headlights and engine. McAfee chose that particular area to stop because it allowed him to watch Bleigh Construction and Graupman Construction, as well as a large area of the bottomlands. The two construction sites are located alongside Highway 168. The construction companies had asked the sheriff's office to watch their sites. No one was supposed to be at their locations at this time of night. Additionally, thefts of anhydrous ammonia frequently occurred from the storage tanks located on the Bleigh Construction property. As explained at trial, anhydrous ammonia is a necessary ingredient in the manufacture of methamphetamine.

While parked, McAfee observed headlights coming out of Hannibal northbound on Highway 168. As the vehicle approached Bleigh Construction, the headlights veered to the left as though the vehicle was attempting to turn into a field entrance. The vehicle's headlights were pointed to a wooded area just north of Bleigh Construction. The vehicle then continued northward on the highway toward Graupman Construction. The vehicle turned around at the southernmost entrance to Graupman, and proceeded back south on Highway 168. The vehicle passed Bleigh Construction and went down to the entrance of Austin Power, just south of Bleigh Construction. The vehicle turned around in the entrance of Austin Power and proceeded back north again. The vehicle repeated its prior actions—as it approached Bleigh Construction, it veered to the left, as though turning into an entrance, and pointed its headlights into the same wooded area. The vehicle then continued north on Highway 168.

At this point, McAfee contacted Deputy Eric Dudley, who was also patrolling in the area, to determine where he was located. Dudley was headed south out of Palmyra on Highway 168, towards the two construction sites, to check on the anhydrous ammonia tanks at Bleigh Construction before heading home for the night. McAfee reported the vehicle's movements to Dudley. Dudley saw the vehicle coming towards him; Dudley and the vehicle passed.

Deputy Dudley turned around and headed back north on the highway to see where the vehicle went. He lost sight of the vehicle as it went around a curve. McAfee reported that the vehicle had turned around at Graupman Construction and was headed back south towards Bleigh Construction. The vehicle and Dudley again passed each other.

[366 S.W.3d 572]

Deputy Dudley continued northward to Graupman, where he turned around and proceeded back south on Highway 168. McAfee reported that the vehicle had applied its brakes and had stopped very near the anhydrous tanks at Bleigh Construction. At this point, Dudley advised McAfee and dispatch that he was going to stop the vehicle, to investigate what the vehicle and its occupants were doing and to see if there was an attempt to steal anhydrous ammonia. At this point in time, the suspicious vehicle had driven past Bleigh Construction three times in the span of five minutes. When Dudley came around the curve of the highway, he saw the vehicle stopped at Bleigh Construction, right in front of the anhydrous ammonia tanks. As he approached from behind and his headlights became visible to the stopped vehicle, the vehicle “took off at a high rate of speed.” Dudley pursued the vehicle, and as he got closer, he activated his lights and siren. McAfee also left his parked position and pursued the vehicle. The vehicle pulled over at the entrance to Austin Powder.

Deputies Dudley and McAfee parked behind the stopped vehicle; as McAfee exited his patrol car, he could smell the odor of ether. McAfee was parked about twenty feet behind the vehicle; as he approached the stopped vehicle, the odor became stronger.

Defendant was driving the stopped vehicle. There were two passengers in the car—Joseph Tierney and Kris Luoma, the owner of the car.⁴ Deputy Dudley asked defendant for his driver's license and asked him to step out of the vehicle. When defendant exited the vehicle, both Dudley and McAfee noticed the smell of ether coming off defendant's person. As explained at the pre-trial suppression hearing, the odor of ether is significant to police officers because that product is used in the production of methamphetamine. Dudley asked defendant why he smelled like ether. Defendant turned away from Deputy Dudley and said he did not know what the deputy was talking about.

Deputy Dudley asked defendant what he and his passengers were doing. Defendant stated they were just out driving around. Dudley then asked why they stopped by the anhydrous ammonia tanks. Defendant stated they saw some deer in the field, so they stopped and were looking at the deer. Dudley had not seen any deer that night, and although in the past he had seen deer in the general area, he had never seen any deer in the area in front of Bleigh Construction. Dudley then asked defendant if there was anything illegal in the vehicle. Defendant said no, and told the deputy to go ahead and look.

Before searching the car, Deputy Dudley had the passengers step out of the vehicle. In removing the passenger from the back seat, Dudley noticed a fire extinguisher in plain view on top of a speaker box behind the driver's seat. Dudley knew that the extinguisher could be used to steal and carry anhydrous ammonia. The deputy asked defendant about the fire extinguisher. Defendant stated he knew nothing about it. Dudley then remarked that the fire extinguisher could be used to carry anhydrous ammonia, to which defendant stated that if that is what he was doing, “wouldn't I need an inner tube?”

Deputy Dudley obtained permission from Mr. Luoma to search the vehicle. Dudley reached in and grabbed the fire extinguisher. As he did so, he noticed a syringe cap on the back passenger seat. When he picked that up, he noticed a

[366 S.W.3d 573]

syringe on the floorboard. Dudley also seized the syringe. He asked Mr. Tierney to whom the syringe belonged. Tierney said it was his, and that he had used it to ingest methamphetamine. Deputy Dudley placed Mr. Tierney under arrest. The deputy then asked defendant if he had recently used narcotics. Defendant said that he had, a couple of hours earlier.

Deputy Dudley then proceeded to search the trunk. As soon as he opened the trunk, he could smell the odor of ether emanating from the trunk. Inside the trunk, Dudley found a plastic bag containing a HCL generator, which is used in the manufacture of methamphetamine. The generator contained a salt-like substance. As explained at trial, salt is used in the HCL generator during the manufacture of methamphetamine. The deputy also found a pair of bolt cutters in the trunk, right next to the plastic bag. Dudley also found a flashlight, a pair of black gloves, a plastic jug, and a hammer in the car.

After finding the items in the trunk, the deputies arrested defendant and read him his Miranda rights. Deputy McAfee transported defendant and his two companions back to the jail. Deputy Dudley remained with the stopped vehicle, to await the arrival of the narcotics task force to process the seized items. After taking the defendant and his companions to jail, McAfee returned to the scene and searched the area where he had observed defendant illuminate the woods with his headlights. He found a five-gallon bucket with a bicycle inner tube inside of it. He also found a large cooler laying at the edge of the woods, about...