State v. Wurtzberger, WD56473
| Decision Date | 27 June 2000 |
| Docket Number | WD56473 |
| Parties | State of Missouri, Respondent, v. Bryan E. Wurtzberger, Appellant. WD56473 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Adair County, Hon. Russell E. Steele
Opinion Summary: Bryan E. Wurtzberger appeals the judgment of his jury conviction of an attempt to manufacture a controlled substance, methamphetamine, in violation of section 195.211. As a result of his conviction, he was sentenced to twelve years in the Missouri Department of Corrections.
REVERSED AND REMANDED.
Division Three holds:
(1) The State's verdict director hypothesized Wurtzberger's guilt based on the alternative theories of principal and accomplice liability. Because the case was submitted to the jury on these alternative theories, in order to show on appeal that there was insufficient evidence to support his conviction, he is required to show that the evidence was insufficient to convict him under both theories. As to principal liability, the evidence was insufficient from which a reasonable jury could have found that he committed the offense charged by making a substantial step toward the manufacture of methamphetamine. However, as to accomplice liability, the evidence was sufficient from which a reasonable jury could have found him criminally responsible for the offense. As such, the trial court did not plainly err in failing to direct a verdict of acquittal at the close of the State's evidence and all the evidence or enter, sua sponte, a JNOV.
(2) The trial court plainly erred in giving the State's verdict director, which instructed the jury on common law attempt. Unlike MAI-CR 3d 304.06, the applicable instruction for substantial-step attempt, it did not require the jury to find that he did an act which was a "substantial step" towards the manufacture of methamphetamine, an essential element of the crime of attempt to manufacture methamphetamine under section 195.211, and did not define it, as required by MAI-CR 3d 304.06. This Court cannot say, with the certainty required by due process considerations, that, without the jury being instructed on substantial step and its definition, a reasonable jury would not convict for attempt without deliberating and finding this requisite element. Hence, manifest injustice and a miscarriage of justice did result from the instructional error, requiring a new trial.
Bryan E. Wurtzberger appeals the judgment of his jury conviction in the Circuit Court of Adair County of an attempt to manufacture a controlled substance, methamphetamine, in violation of section 195.211.1 As a result of his conviction, he was sentenced to twelve years in the Missouri Department of Corrections. The appellant raises two points on appeal. In Point I, he claims that the trial court plainly erred in failing to direct, sua sponte, a verdict of acquittal at the close of the State's evidence and all the evidence or enter, sua sponte, a judgment of acquittal notwithstanding the verdict (JNOV) because there was insufficient evidence to support his conviction in that the record is void of any evidence from which the jury could have found a requisite element of the crime for which he was convicted, that he did an act or acts which constituted a substantial step towards the commission of the offense of the manufacture of methamphetamine. In Point II, he claims that the trial court plainly erred in giving the State's verdict directing instruction because it deprived him of due process in that it did not require the jury to find a requisite element of the crime charged, that he did an act which was a substantial step towards the manufacture of methamphetamine, and did not define "substantial step," as required by MAI-CR 3d 304.06 (July 1, 1997).
We reverse and remand.
On March 31, 1997, an unidentified employee at Canton Auto Supply in Canton, Missouri, called Officer Mike Baker of the LaGrange, Missouri, Police Department. The employee told him that a white male had just purchased a case of large cans of starter fluid, dimethyl ether, which is commonly used in the manufacturing of methamphetamine. While the employee did not know the name of the person who had purchased the starter fluid, the employee had written down his license plate number, which was given to Officer Baker. He later learned that the license plate number belonged to the appellant.
In April 1997, the appellant was living in a mobile home owned by his father, David Wurtzberger, and located on his father's property in LaBelle, Lewis County, Missouri. He was the sole tenant. At that time, the appellant was under house arrest and required to wear an electronic monitoring device, which prevented him from leaving his residence, except for a short period of time each week.2
Sometime prior to April 1, 1997, the appellant contacted Bruce Hoffman, who had previously done construction, dirt, electric, and plumbing work for the appellant's father. However, he had never done work for the appellant. The appellant asked Hoffman how he could get electricity from his mobile home to a machine shed located approximately forty to forty-five feet away. Hoffman advised him that he could plug an extension cord into an outlet at his home and run the cord to a fuse box in the shed. On April 1, 1997, Hoffman informed Officer Gary Grubb, the Chief of Police in LaBelle, Missouri, of his conversation with the appellant. On April 7, 1997, Officer Grubb drove past the appellant's home and observed a "heavy large black cord coming off the front of the mobile home and running into . . . the north side of the shed."
On April 9, 1997, the prosecuting attorney for Lewis County, Missouri, applied for a search warrant in the Circuit Court of Lewis County to search for methamphetamine and materials and equipment used to manufacture it in outbuildings located near the appellant's residence. On April 9, the Honorable Fred L. Westhoff issued the search warrant requested. The warrant authorized a search for "methamphetamines or materials and equipment used to manufacture methamphetamines."
On the evening of April 9, 1997, Officer Baker, Officer Brad Curless of the LaGrange Police Department, and Officers Doug Rader and Mark Bouyea of the Northeast Missouri Narcotics Task Force drove past the appellant's home, which was situated approximately fifty feet from the road. As they drove past, they smelled an odor of what they believed to be ether or a solvent ammonia coming from the immediate area of the appellant's residence and the shed, but could not distinguish whether the odor was coming from the residence, the shed, or both. The search warrant was executed on April 10, 1997. Several law enforcement officers participated in the execution of the warrant, including Officer Rader, and Troopers Ernie Schroeder and Lenny Reed of the Missouri State Highway Patrol.
Upon arrival at the appellant's residence, Officer Rader, Trooper Schroeder, and Trooper Reed proceeded to the machine shed, while other officers secured the appellant's residence. The officers found the shed chained and padlocked. They used a cutting tool to cut the chain and open the door. Upon gaining entry to the shed, they detected a strong smell of a solvent and ammonia, requiring them to ventilate it before entering. They also observed an extension cord running from the appellant's home to the shed and an electric light in the shed.
Once inside the shed, the officers discovered and seized the following items commonly used in the manufacturing of methamphetamine: an electric hot plate; a red gas can "with tubing and hoses coming out of it" with "an electric aquarium air pump hooked onto it"; a turkey baster; a container of rock salt; a "glass jar containing a liquid with solvent inside the liquid"; a "glass jar containing a white powder"; a used coffee filter "with white powder"; a measuring cup "with some white residue"; a "plastic cup with a cup inside of it with white powder residue"; several lithium batteries; a gas jug containing anhydrous ammonia; a small piece of the casing of a lithium battery; three bottles of sulfuric acid; and a pair of heavy-duty rubber gloves. The officers did not recover any ephedrine, an ingredient necessary for the manufacturing of methamphetamine, from the shed. While conducting a warrantless search of the appellant's residence, several items also commonly used in the manufacturing of methamphetamine were seized.
On April 10, 1997, the appellant was charged in the associate division of the Circuit Court of Lewis County with one count each of an attempt to manufacture a controlled substance, section 195.211, and possession of a controlled substance, section 195.202.3 On August 20, 1997, he filed in the associate division a motion to quash the search warrant and to suppress evidence. The record does not reflect whether this motion was ever ruled upon. It also does not reflect whether a preliminary hearing was conducted or whether the appellant waived the same, after which he was bound over for trial. In any event, an "information" was filed in the circuit division of the Circuit Court of Lewis County on August 25, 1997, charging the appellant with an attempt to manufacture methamphetamine, section 195.211. Thereafter, without any explanation, the exact same "information" was re-filed on September 4, 1997. On September 12, 1997, the appellant filed a motion for change of venue, as a matter of right, pursuant to Rule 32.03(a).4 The motion was sustained, and venue was changed to Adair County.
On April 29, 1998, the appellant re-filed his motion to quash the search warrant and suppress evidence. On May 5, 1998, after hearing evidence and argument of counsel, the court, the Honorable Russell E. Steele, overruled the appellant's motion to quash, finding that the trial court had probable cause to issue the warrant. As to the motion to suppress,...
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