State v. Rollett

• Decision Date: 06 August 2002
• Docket Number: No. WD 60048.,WD 60048.
• Parties: STATE of Missouri, Respondent, v. Steven E. ROLLETT, Jr., Appellant.
• Court: Missouri Court of Appeals

80 S.W.3d 514

STATE of Missouri, Respondent, v. Steven E. ROLLETT, Jr., Appellant.

No. WD 60048.

Missouri Court of Appeals, Western District.

August 6, 2002.

COPYRIGHT MATERIAL OMITTED

Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Sara L. Trower, Asst. Atty. Gen., Jefferson City, for Respondent.

Before PAUL M. SPINDEN, C.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.

ROBERT G. ULRICH, Judge.

Steven Rollett, Jr., appeals his convictions following a jury trial for the class C felony of possession of a chemical with the intent to create a controlled substance, section 195.420,¹ and the class B felony of attempting to manufacture methamphetamine, sections 195.211 and 564.011, and sentences as a prior offender to concurrent terms of five years and eight years, respectively. Mr. Rollett challenges the sufficiency of the evidence to support his convictions. The judgment of convictions is affirmed.

Facts

Prior to January of 2000, a member of the local Drug Strike Force had spoken to the employees at the Wal-Mart in Savannah, Missouri, about methamphetamine and the ingredients used in its manufacture. Wal-Mart employees were informed that ephedrine and pseudoephedrine, commonly found in cold tablets, were ingredients used to manufacture methamphetamine. Savannah Wal-Mart policy limited a customer's purchase of cold medicine containing either of the two substances to three boxes per visit.

On January 19, 2000, Lois Mitts was working as the manager of the over-the-counter drug department at Wal-Mart when a pharmacy technician called her attention to two men that were in the store, "getting more cold medicine." When Ms. Mitts recognized the men as having purchased from the store cold medicine four or five times during the previous month, she notified Marilyn Decker, the assistant manager of the store. Steven Rollett Jr. and Sean Fisk were later identified as the men in the Savannah Wal-Mart that day.

By the time Mr. Rollett and Mr. Fisk had concluded their shopping, Ms. Mitts and Ms. Decker had positioned themselves at the front of the store near the checkout lanes. From that location, Ms. Mitts observed the men proceed through separate checkout lanes to pay for their purchases. Ms. Mitts was unable to observe what Mr. Rollett purchased, but she did observe Mr. Fisk purchase three boxes of cold medicine that contained pseudoephedrine.

As Mr. Rollett and Mr. Fisk were exiting the store, Ms. Decker instructed an employee to follow the men and to observe the license plate number of their vehicle. Meanwhile, Ms. Mitts contacted a member of the local Drug Strike Force and informed him that two men had purchased six boxes of cold medicine. When the employee returned with the license plate number and a description of the vehicle Mr. Rollett and Mr. Fisk had entered, Ms. Mitts called the Drug Strike Force a second time and relayed the additional information.

Bruce Lundy, chief deputy of the Andrew County Sheriffs Department, responded to Ms. Decker's phone call. Upon entering the Wal-Mart parking lot, Deputy Lundy observed a vehicle that matched Ms. Decker's description leaving the parking area. As Deputy Lundy passed the vehicle, the two men inside the vehicle made eye contact with him. The men then drove into the drive-thru for the Break Time/Taco Bell store that was across the street from the Savannah Wal-Mart. At that point, Deputy Lundy drove into a nearby parking lot where he could observe the men. Officer Blake Brownlee of the Savannah Police Department arrived at the scene shortly thereafter and stopped his vehicle at a point where he too could observe the men.

After Proceeding through the drive-thru of the Break Time/ Taco Bell store, the men drove into the employee parking lot. Deputy Lundy was suspicious of the men's actions because he had never seen customers use the employee lot. While the men were parked in the employee lot, Deputy Lundy verified the license plate number on the Oldsmobile and was informed that the plate was issued to Mazda owner Sean Fisk.

After approximately ten minutes, the men exited the employee lot, parked in the customer lot, and entered the Break Time/ Taco Bell store. After a few minutes in the store, the men returned to their vehicle and drove south toward the city limits. Deputy Lundy and Officer Brownlee followed the vehicle five or six blocks before stopping it for having improper license plates. Officer Brownlee approached the passenger's side while Deputy Lundy went to the driver's side of the vehicle. When the driver was informed that the stop was based on the vehicle displaying improper plates, he stated that he had just recently purchased the vehicle. A driver's license and insurance card identified the driver as Sean Fisk of St. Joseph, Missouri.

Deputy Lundy asked Mr. Fisk to step out of the vehicle so that he could speak with him separately, away from Mr. Rollett, as Mr. Rollett was sitting in the passenger seat. When asked why he was in Savannah, Mr. Fisk told Deputy Lundy that he had come to Savannah to shop and eat tacos. When asked what he was shopping for, Mr. Fisk stated that he was shopping for cold medicine for his breathing problem and batteries for his camera. When Deputy Lundy asked if there was anything illegal in the vehicle, Mr. Fisk said no.

After speaking with Mr. Fisk, Deputy Lundy spoke with Mr. Rollett. Mr. Rollett told Deputy Lundy that he was in Savannah to purchase cold medicine for his breathing problem and to eat tacos. Deputy Lundy later testified that he was suspicious of both Mr. Fisk's and Mr. Rollett's answers because they both claimed to have breathing problems, but neither one appeared to have difficulty breathing. Neither man was coughing, sneezing, or gasping, and neither had a runny nose or red, watery eyes. In addition, Deputy Lundy knew a Wal-Mart was located in St. Joseph so that Mr. Fisk and Mr. Rollett's coming to the Savannah Wal-Mart seemed odd to him.

After Mr. Fisk gave Deputy Lundy permission to search the vehicle, Deputy Lundy found two Wal-Mart bags on the seat between Mr. Rollett and Mr. Fisk; each bag contained three boxes of Equate antihistamine cold tablets. Six loose blister packs of cold tablets, the equivalent of three additional boxes of Equate cold tablets, were also discovered on the seat between Mr. Rollett and Mr. Fisk. A package of lithium batteries was discovered under the driver's seat. Pseudoephedrine in the cold medicine and lithium in the batteries are ingredients used to manufacture methamphetamine.

In the backseat area of the vehicle, Deputy Lundy found a plastic gasoline container, an old car battery, leather gloves, and two bottles of Heet Gas Line Antifreeze. The car battery contained sulfuric acid, also an ingredient used to manufacture methamphetamine. Heet contains alcohol and is frequently used to extract pseudoephedrine from cold tablets.

In the trunk of the vehicle, Deputy Lundy found more Wal Mart bags that contained additional boxes of Equate antihistamine tablets; three sets of clear hose, like that used with fish tanks; a compressed gas cylinder; and a jug of muriatic acid, about a quarter full. The compressed gas cylinder had been spray painted black. A label that read "Balloon Time" remained visible, however, suggesting that the original use of the cylinder may have been to inflate balloons. Attached to the cylinder was a long piece of copper tubing that contained a shutoff valve. The attachment and valve appeared to be homemade rather than original components of the tank. A bluish green discoloration was present on the copper tubing where it attached to the tank, indicating the presence of anhydrous ammonia in the tank. When the valve on the tank was opened, a strong odor of anhydrous ammonia escaped.

Also discovered in the vehicle were two receipts. One indicated that three boxes of Equate cold medicine were purchased on January 19, 2000. The other reflected that muriatic acid had been purchased on January 17, 2000.

Relying on his training and experience, Deputy Lundy concluded that the items found in Mr. Fisk's vehicle were precursors used to manufacture methamphetamine. Deputy Lundy contacted Buchanan County Drug Strike Force Officer Frank Till and Missouri Highway Patrol Drug and Crime Investigator Sergeant Dave Merrill. After Officer Till and Sgt. Merrill arrived at the scene and viewed the contents of the vehicle, Mr. Fisk and Mr. Rollett were arrested.

Mr. Fisk's vehicle was towed to a garage where it was thoroughly searched and the items found in the vehicle evaluated. In addition to the items previously listed, the subsequent search revealed filter papers and a digital scale, concealed in a Barbie Doll box and covered in a white sack. These items, too, are used to manufacture methamphetamine.

Mr. Fisk and Mr. Rollett were tried together, each for attempting to manufacture methamphetamine and possession of a chemical with the intent to create a controlled substance. The charges were submitted to the jury on an accomplice liability theory. Mr. Rollett did not present any evidence or testimony in his defense.

Sgt. Merrill, being educated, trained, and experienced in conducting investigations regarding the manufacture of methamphetamine, testified at trial that the items found in Mr. Fisk's vehicle were components to manufacture methamphetamine by the anhydrous ammonia-lithium method. A total of 720 tablets containing pseudoephedrine were seized from Mr. Fisk's vehicle. Sgt. Merrill stated that at least thirty grams of methamphetamine could have been manufactured from the pseudoephedrine in the tablets. Every item necessary to manufacture methamphetamine was present in Mr. Fisk's vehicle.

Steven Rollett, Jr., was charged by information with possessing pseudoephedrine with the intent to create methamphetamine, section 195.420, and attempting to manufacture methamphetamine, sections 195.211 and 564.011. He was...