State v Withrow, ED73579
| Decision Date | 13 July 1999 |
| Docket Number | ED73579 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. State of Missouri, Respondent, v. Michael R. Withrow, Appellant. Case Number: 73579 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Monroe County, Hon. Carroll M. Blackwell
Counsel for Appellant: Dan Viets
Counsel for Respondent: Breck K. Burgess
Opinion Summary: Michael R. Withrow appeals from a judgment entered on his conviction by a jury of attempt to manufacture methamphetamine in violation of section 195.211 RSMo 1994.
REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT OF ACQUITTAL AND ORDER DEFENDANT DISCHARGED; APPEAL TRANSFERRED TO MISSOURI SUPREME COURT BY DISSENTING JUDGE PURSUANT TO RULE 83.01.
Division Two holds: The trial court plainly erred in denying Withrow's motion for judgment of acquittal and in submitting the case to the jury because there was insufficient evidence to convict Withrow of a class B felony of attempt to manufacture methamphetamine. The state failed to prove that Withrow constructively possessed the equipment used in the manufacturing of methamphetamine. Alternatively, the evidence was insufficient to establish that Withrow "nearly consummated" the offense. The dissent would find that the state made a submissible case.
Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT OF ACQUITTAL AND ORDER DEFENDANT DISCHARGED; APPEAL TRANSFERRED TO MISSOURI SUPREME COURT BY DISSENTING JUDGE PURSUANT TO RULE 83.01. Crahan, J., dissents in separate opinion. Teitelman, J., concurs.
Opinion modified by Court's own motion on July 20, 1999. This substitution does not constitute a new opinion.
Michael R. Withrow appeals from a judgment entered on his conviction by a jury of attempt to manufacture methamphetamine in violation of section 195.211 RSMo 1994,1 a class B felony.
For part of each of the days of January 23 and 24, 1997, officers of the Northeast Missouri Task Force conducted surveillance on a house at 519 Church Street in Hannibal, Missouri. During this time, officers observed approximately thirty people coming in and out of the house. The numerous arrivals and departures indicated to the officers that the residence could be a "dope house." Withrow's car was parked in front of 519 Church Street several times during the surveillance period, and officers observed Withrow coming and going from the residence five or six times during that time.
Officers executed a search warrant for the premises at approximately 9:21 p.m. on January 25, 1997. The officers approached the house and "knocked and announced." When the officers heard movement inside of the house but received no answer, they breached the front door. Once inside, one officer noticed Withrow exit the east bedroom on the second floor and then stand at the top of the stairs with his hands raised above his head. Also present in the house were Elisha Davis, Lisa Ledbetter, and William Motley.
The officers arrested everyone in the house and conducted a search of the premises. Two bedrooms were located on the second floor, one to the east and one to the west. Officers detected a strong odor of solvent coming from the east bedroom. In the east bedroom, officers discovered clear plastic tubing, brass fittings, a bottle of distilled water, and thirty-five lithium batteries. A padlocked closet in the east bedroom, which Sergeant Rader testified he opened by removing the pins from the side of the door, contained the following items: seventeen bottles of ephedrine-brand pseudoephedrine; two 6-volt lithium batteries, glass cookware, coffee filters, a sealable glass mason jar containing a liquid, a plastic cork jug, a brown bag containing a pair of rubber gloves and a clear plastic bottle, a portable burner, a propane tank, an adapter for an LP gas grill tank to accept anhydrous ammonia, a bottle of distilled water, a plastic Tupperware container with clear plastic tubing, a funnel, and a letter addressed to William Motley at 519 Church Street. The record is unclear as to whether a plastic bag, a container of mineral spirits, and a screwdriver were found inside the closet; however, we will assume these items were found outside of the closet. In addition, the officers found six firearms and ammunition in the east bedroom. No anhydrous ammonia was recovered.
Officers searching the west bedroom found six empty syringes, one syringe containing a clear liquid, a spoon, scales, a marijuana pipe, and a letter addressed to Withrow at 424 S. Seventh Street in Hannibal. Officers also found a Missouri Department of Corrections identification card for Elisha Davis laying on top of a recipe for manufacturing methamphetamine; however, the record is unclear where in the residence these items were recovered.
No fingerprints were taken from any items found on the premises. A search of Withrow's person revealed no key to either the residence or the padlock on the door of the east bedroom closet and no drug paraphernalia. Withrow made no statement to police at the time of his arrest.
At the close of all evidence, Withrow filed a written motion for judgment of acquittal. The trial court denied the motion and submitted the case to the jury. The jury found Withrow guilty of attempt to manufacture a controlled substance but did not recommend a sentence because the trial court had previously found Withrow to be a prior and persistent offender. The trial court sentenced Withrow to a term of imprisonment of eighteen years. In a post-trial motion, Withrow argued that the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to establish that he was guilty of attempt to manufacture a controlled substance. The trial court denied Withrow's motion. This appeal followed.
We decline to address the points raised by Withrow in his appeal. Instead, we examine whether the court committed plain error in submitting the case to the jury.2 It is plain error to submit a case on evidence insufficient to make a submissible case. State v. Nations, 676 S.W.2d 282, 283 (Mo.App. E.D.1984); State v. Rivers, 554 S.W.2d 548, 550 (Mo.App. 1977).
In considering whether the evidence is sufficient to support the jury's verdict, we must look to the elements of the crime and consider each in turn. [W]e are required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt.
State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).
To convict a defendant of attempt to manufacture a controlled substance the state must prove the defendant possessed equipment used in the manufacture of a controlled substance. State v. Condict, 952 S.W.2d 784 (Mo.App. S.D.1997). This principle is based on the simple logic that an individual cannot manufacture a controlled substance without possessing the necessary materials and equipment. A finding of possession requires proof that the defendant (1) had either conscious or intentional possession of the equipment necessary to manufacture methamphetamine, either actual or constructive, and (2) was aware of the presence and nature of the equipment. Cf. State v. Reynolds, 669 S.W.2d 582, 584 (Mo.App. E.D.1984).
Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the equipment. Cf. State v. Jeffries, 858 S.W.2d 821, 824 (Mo.App. E.D.1993). At a minimum, constructive possession requires evidence that the defendant had access to and control over the premises in which the equipment is found. Cf. id. If the defendant has exclusive control of the premises in which the equipment is found, it may be inferred that the defendant exercised control over the equipment. Cf. State v. Barber, 635 S.W.2d 342, 343 (Mo. 1982). However, if there is joint control of the premises, some additional evidence connecting the defendant with the equipment is required. Cf. id. at 343-44.
Here, there is no evidence that Withrow had exclusive control of the premises or actually possessed the equipment found in the east bedroom closet. Therefore, to establish constructive possession, the state must prove that Withrow had access to and control over the premises and, because other persons were found on the premises, the state must present additional evidence connecting Withrow with the equipment. Cf. id. In addition, the state must prove that Withrow was aware of the presence and nature of the equipment.
Viewed in a light most favorable to the verdict, the evidence linking Withrow to the offense charged is as follows: During the surveillance period, officers observed Withrow and roughly thirty other individuals coming to and going from the residence at 519 Church Street on several occasions; Withrow's car was parked in front of the residence for several hours; when the search warrant was executed, Withrow and three other individuals were found in the residence; Withrow was walking out of a bedroom that contained a closet in which equipment used to manufacture methamphetamine was discovered; a strong odor of solvent was present in the bedroom; and a letter addressed to Withrow at a different address was found in the west upstairs bedroom.
We are guided by State v. Reynolds, 669 S.W.2d 582 (Mo.App. E.D.1984). In Reynolds, the defendant was charged with possession of controlled substances. While conducting surveillance on a residence at 7705 W. Bruno, officers observed the defendant...
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