State v. Wurtzberger
| Decision Date | 06 March 2001 |
| Citation | 40 S.W.3d 893 |
| Parties | (Mo.banc 2001) State of Missouri, Respondent, v. Bryan E. Wurtzberger, Appellant. SC82871 0 |
| Court | Missouri Supreme Court |
For APPELLANT: Mr. Michael Gross, St. Louis, MO.
For RESPONDENT: Honorable Jeremiah W. (Jay) Nixon, Attorney General, Mr. Breck K. Burgess, Assistant Attorney General, Jefferson City, MO.
A jury convicted appellant Bryan Wurtzberger of attempt to manufacture a controlled substance, methamphetamine (meth), in violation of section 195.211, RSMo 1994. The trial court, following the jury's recommendation, sentenced him to 12 years in prison. After appeal to the Court of Appeals, Western District, this Court granted transfer, Mo. Const., art. V, sec. 10, (1) to resolve an alleged conflict regarding the availability of Rule 30.20 plain error review when counsel fails to object to the verdict-directing instruction as required by Rule 28.03 and (2) to determine whether the submitted instruction resulted in manifest injustice requiring reversal. The judgment is affirmed.
Viewed in the light most favorable to the verdict, the facts are as follows:
On March 31, 1997, appellant purchased 12 cans of starter fluid, which is dimethyl ether, an organic solvent commonly used to manufacture meth, from Canton Auto Supply. Employees of that business reported the sale and the purchaser's license plate number to the LaGrange police department, and officers traced the license plate number to a car owned by appellant. A few days later, the officers drove to a house trailer where appellant resided, and on their arrival, they smelled a strong odor of ether around the trailer and a shed located 45 to 50 feet away. The officers also saw that an electric cord ran from the house trailer to the shed, which was consistent with information provided by Bruce Hoffman, a former construction worker for appellant's father, who had previously told one of the officers that appellant had asked him how to run electrical power to the shed. At that point, the officers left the premises to obtain a search warrant.
Later that day, the officers returned, armed with the search warrant, and found appellant in the trailer. Strong ammonia fumes emanated from the shed, which was locked. After using a cutting tool to open the shed, they found that the fumes inside were so strong that they had to ventilate before completing their search. At trial, Sergeant Douglas Rader of the Northeast Missouri Narcotics Task Force testified that the shed contained a lab set up to manufacture meth by the "Nazi" method, which he then described:
It is started by mixing three precursor ingredients which includes your pseudoephedrine, lithium or sodium metal and anhydrous ammonia. The lithium metal is extracted from lithium batteries; the pseudoephedrine is taken from the Pseudoephedrine - your cold pills; and the anhydrous ammonia comes out of the farmers' tanks in the fields. Mixing those three together causes a chemical reaction and broke down then into a solvent [starter fluid] to cleanse it. As you break it down into a solvent, its in a liquid form. From then you mix the sulfuric acid and salt together to make hydrochloride gas, which you run the gas in to the solvent containing the methamphetamine base, and it crystallizes the methamphetamine.
The items seized by the officers included: several jars of binding material that had been separated from pseudoephedrine pills, a filter coated with white powder, a measuring cup with white residue, a plastic cup with white residue, a glass jar of solvent (starter fluid), a hot plate (used to cook pseudoephedrine down to powder), a gas can fitted with tubes and hoses (modified into a hydrochloric gas generator), a container of rock salt (when mixed with sulfuric acid, makes hydrochloric gas), three bottles of sulfuric acid, a turkey baster (used to separate meth base from water), nine lithium batteries (used as sources of lithium), a piece of lithium battery casing (the battery had been taken apart to remove the lithium), and heavy-duty rubber gloves (used to protect hands from acid and other harsh chemicals used to manufacture meth). According to Sergeant Rader, these items are all necessary to the "Nazi" process.
The defense called Isabel Reeves, a "close friend" of appellant, who testified that she and Lisa Pollock were the persons who had been manufacturing meth in appellant's shed, but without his permission. When Pollock testified, however, she denied any involvement. In addition, the defense called appellant's father who testified that he owned the trailer home and allowed his son to live there. He also stated that he locked the shed a couple of days before his son's arrest, although he was not questioned as to whether he smelled fumes around the shed or whether his son had a key to the shed's lock.
On this record, the case was submitted to the jury, which was instructed on the alternative theories that appellant acted either as a principal or an accomplice in the commission of the crime charged. Upon conviction, appellant sought plain error review of the trial court's alleged errors in failing to 1) direct a verdict in appellant's favor due to insufficiency of the state's evidence, and 2) define the term "attempt" in the verdict directing instruction or "guide the jury in determining whether a 'substantial step' had been taken toward the commission of the charged offense."
With respect to the first issue, the state, although charging appellant alternatively as a principal and an accessory, need only prove appellant's liability as an accessory. Missouri has eliminated the distinction between principals and accessories, and now, all persons who act in concert to commit a crime are equally guilty. State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000). Under section 562.041.1(2), RSMo 1994, "[a] person is criminally responsible for the conduct of another when . . . either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." The state is not required to show that the defendant "personally committed every element of the crime." Id. Furthermore, "any evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction." State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998),cert. denied, 525 U.S. 1085, 142 L. Ed. 2d 690, 119 S. Ct. 834 (1999).
In this case, to convict appellant of an attempt to manufacture meth under a theory of accomplice liability, the state was required to prove that: (1) Reeves (and perhaps others) attempted to manufacture meth; and (2) appellant, with the purpose of promoting or furthering the manufacture of meth, acted together with or aided Reeves in committing that offense. Secs. 564.011 and 562.041.1(2); MAI-CR3d 304.04; MAI-CR3d 304.06. Appellant has essentially conceded that an attempt to manufacture meth took place, and thus, the only question is whether there was evidence from which the jury could reasonably conclude that appellant was purposefully acting together with or aiding Reeves in the attempt.
In that regard, the record shows that a reasonable juror could infer 1) that appellant purchased the starter fluid and gave it to Reeves to aid in her attempt to manufacture meth; 2) that he ran the extension cord from his home to the shed to provide electricity for the same purpose; 3) that he knew that meth was being manufactured because there was a strong odor of ether or ammonia around the shed, which was only 45 to 50 feet from his residence; and 4) that his close personal friendship with Reeves was the reason a) that she chose to use the shed adjacent to his residence to manufacture meth and b) that they were otherwise acting in concert. This evidence was more than sufficient to support the verdict, and the trial court committed no error, plain or otherwise, in failing to direct a verdict for appellant.
Appellant's second claim challenges the verdict-directing instruction. Section 195.211.1, RSMo 1994, the crime charged, provides that "it is unlawful for any person to . . . attempt to distribute, deliver, manufacture or produce a controlled substance. . . ." The inchoate offense of attempt under section 564.011, RSMo 1994, has two elements: (1) the defendant has the purpose to commit the underlying offense and (2) the doing of an act that is a substantial step toward the...
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State v. Edwards
...a defendant's "failure to submit a correct instruction under these circumstances renders his claims of error unpreserved. State v. Wurtzberger, 40 S.W.3d 893, 897 (Mo. banc 2001)." Here, however, it seems harsh to apply this rule where the language that defendant offered was that implicitly......
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