Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Clay County, Missouri The Honorable Larry D. Harman, Judge
Before Gary D. Witt, Presiding Judge, Joseph M. Ellis, Judge and Thomas H. Newton, Judge
Gary D. Witt, Judge.
Chadwick Leland Walter ("Walter") appeals from his convictions of one count of attempted manufacture of a controlled substance under Section 195.211 and one count of maintaining a public nuisance under Section 195.130 following a jury trial. Walter was sentenced as a prior and persistent drug offender to concurrent sentences of fifteen years for the drug conviction and eight years for the nuisance conviction. Walter brings five points on appeal. He asserts: (1) that the evidence was insufficient to convict him on both counts, (2) error in the denial of motions to quash the search warrant and to suppress evidence, (3) error in the admission of testimony based on other crimes, (4) error in overruling hearsay objections, and (5) error in closing arguments. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 4, 2011, Walter and his live-in girlfriend, Kathy Martinson ("Martinson"), drove from their residence in Saline County to the City of Marshall. They went to a Wal-Mart store and purchased lithium batteries. They then went to a Red Cross Pharmacy where Walter purchased pseudoephedrine pills and separately Martinson purchased additional pseudoephedrine pills. Later that same day, Walter and Martinson purchased pseudoephedrine pills from a Wal-Mart. Martinson then went to a different Red Cross Pharmacy and purchased additional pseudoephedrine pills. Martinson then returned to the Wal-Mart and purchased Coleman Camp Fuel. Martinson testified that she had the intent to manufacture methamphetamine in purchasing these items. Lithium batteries, pseudoephedrine, and camp fuel are all ingredients that are used to produce methamphetamine.
At 6:45 p.m. that same day, Shane Nicholson ("Nicholson"), an acquaintance of Walter's, was pulled over for a traffic violation. Trooper Christopher Sullivan ("Trooper Sullivan") placed Nicholson in custody and brought him to the Saline County Sheriff's office. While there, Trooper Sullivan viewed a text message on Nicholson's cell phone that identified the sender as "Chad." Nicholson's cell phone also received a phone call at 8:10 p.m. while he was still at the sheriff's office. Trooper Sullivan asked Nicholson to put the cell phone on "speaker" so he could hear the conversation, which lasted about a minute or a minute and a half. Trooper Sullivan recognized Walter's voice. Nicholson asked Walter if "it was fire" and Walter replied, "yeah." "Fire" was explained to mean "good" or "excellent" quality drugs among methamphetamine users.
In the early hours of August 5, 2011, Trooper Sullivan obtained a search warrant for Walter's residence. Trooper Sullivan's affidavit in support of the application for a search warrant included, inter alia: (1) that the trooper had received information that Walter was "cooking" methamphetamine that night in the basement of his residence, (2) that he learned another individual was at Walter's "getting ready to get high, " (3) that Walter indicated "it was fire, " which meant that the methamphetamine was "good, " (4) that Walter said to an informant that it "snowed last night, " meaning that he had cooked methamphetamine, (5) that a Missouri database available to law enforcement indicated that Walter had made two purchases of ephedrine and pseudoephedrine on August 4, 2011, which exceeded the legal amount of that product which may be purchased in a twenty-four hour period, and additionally that Walter was denied purchases of pseudoephedrine at a Wal-Mart on August 4, 2011 twice because he attempted to purchase in excess of the allowed amount, and (6) that Martinson had also purchased pseudoephedrine on August 4, 2011.
The search warrant authorized, among other items, a search for methamphetamine and any articles used in the sale, distribution, or manufacture of methamphetamine. The place to be searched was described as:
A residential structure with a street address of 24808 155th Road in Saline County, Missouri, located on the south side of 155th Road, and described as a gray single-story wood frame home, with vinyl siding and a wooden deck located on the south side of the residence. The residence has a basement and a detached two car garage. In addition, there is an outdoor wood burning furnace on the exterior of the residence.
At 1:25 a.m. Trooper Sullivan and nine other officers served the search warrant. When the police entered Walter's residence, he was in the basement, and Martinson was in the kitchen. There were no other individuals present. Trooper Sullivan provided Walter with the search warrant, and Walter said "you guys won't find anything here." As the officers were in the basement and Walter made that statement, Trooper Sullivan observed a Wal-Mart card with white powder residue on it and a razor blade next to it together with a corner-cut baggie with white powder residue inside it. Upon observing the white powdery residue, Walter was placed under arrest. Trooper Sullivan also took possession of a syringe found inside the pocket of a pair of jeans shorts found nearby as well as a baggie containing a white powdery substance in a bourbon container near the bar area of the basement that was later determined to be methamphetamine.
Deputy Richard Miller ("Deputy Miller") was one of the law enforcement officers who served the warrant. In Walter's basement, Deputy Miller located and catalogued the following items: salt, lithium batteries, two quarts of acetone, starting fluid (which contains ether), an unmarked container containing Liquid Fire (which contains acid). All are items used in the production of methamphetamine. Deputy Miller also found a propane torch in the basement, which is used to consume methamphetamine, and a metal spoon with powdery residue.
The outside wood burning stove or furnace is "fairly close to the residence, " is connected to the residence by electrical wiring, and has underground pipes or ducts to heat the house. In the area in and around the stove, Deputy Miller found burnt lithium batteries, burnt packaging for ephedra or pseudoephedrine pills, a burnt acetone container, a burnt Coleman fuel container, and burnt syringes. These items can be used in the production of methamphetamine.
The two-car detached garage is approximately ten feet from the residence, and is also connected to the residence by electrical wiring. Deputy Miller detected a strong chemical smell from the garage. Parked inside was a blue 1982 Chevrolet truck, which was registered to Walter and his estranged wife (not Martinson). The engine compartment of the truck was partially opened, and officers discovered therein items used in the manufacturing of methamphetamine. On the floor in the front of the truck were two one-gallon containers for Coleman fuel. Deputy Miller also found a large red mixing bowl containing a cloth with a white, powdery substance on it. Deputy Miller also found ephedrine that had gone through the process of adding lithium and anhydrous ammonia, some of the steps necessary to manufacture methamphetamine. Deputy Miller summed up the situation as follows: "In the 1982 Blue Chevy Truck, there was chemicals [sic] undergoing the process of manufacturing methamphetamine. It was an active meth lab." The total weight of the substances sampled in the red bowl was 58.82 grams. When confronted with the contents of the red bowl, Walter responded "This is [expletives deleted], you guys are setting me up, someone set me up."
He was charged with one count of attempted manufacture of a controlled substance (methamphetamine) under Section 195.211 and one count of maintaining a public nuisance (using a building for the illegal use and keeping of a controlled substance) under Section 195.130. It was also alleged that he was a prior and persistent drug offender.
Further facts are set forth as necessary in the discussion below.
Point I: SUFFICIENCY OF THE EVIDENCE
In his first point, Walter argues that the trial court erred in overruling his motions for judgment of acquittal and in entering judgment and sentences on both counts because there was insufficient evidence that he had the requisite knowledge of how to manufacture methamphetamine, that he had the intent to do so, or that he participated in an attempt to manufacture methamphetamine. He also argues accordingly that there was insufficient evidence to prove that he was guilty of the offense that he kept or maintained a public nuisance.
Standard of Review
Our review of a challenge to the sufficiency of the evidence supporting a criminal conviction is limited to a determination of whether the trier of fact, based upon all of the evidence, reasonably could have found the defendant guilty. State v. Blankenship, 415 S.W.3d 116, 121 (Mo. banc 2013) (citation omitted). We "do not weigh the evidence but accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict and ignore all contrary evidence and inferences." Id. (internal citation omitted).
Walter was convicted of violating Section 195.211, attempted manufacture of a controlled substance, and Section 195.130, maintaining a public nuisance. Under Section 195.211.1, "it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance." Under Section 195.130.1, "[a]ny room, building, structure or inhabitable structure as defined in section 569.010 which is used for the illegal use, keeping or selling of controlled substances is a 'public nuisance.' No person shall keep or maintain such public nuisance."
To sustain a conviction on a charge of attempting to manufacture methamphetamine, the State must prove that: (1) the defendant took a substantial step toward commission of the offense; and (2) the defendant engaged in such conduct with the purpose of committing the offense. State v. McLarty, 327 S.W.3d 557, 562 (Mo. App. S.D. 2010) (citation omitted). Pursuant to Section 564.011.1, a "substantial step" is "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." "Therefore, an attempt to manufacture methamphetamine requires conduct strongly corroborative of the act of producing methamphetamine." McLarty, 327 S.W.3d at 562. See also State v. Mickle, 164 S.W.3d 33, 42 (Mo. App. W.D. 2005) (the State had the burden to prove that the defendant, "with the purpose of manufacturing methamphetamine, did any act that was a substantial step toward the commission of that offense").
To prove that Walter engaged in a substantial step through the possession of materials used to manufacture methamphetamine, we apply "the same standard of actual or constructive possession in manufacturing cases as is used in possession cases." State v. Farris, 125 S.W.3d 382, 387 (Mo. App. W.D. 2004) (citation omitted). The State thus had to establish two elements: (1) that Walter had conscious and intentional possession of the substance, either actual or constructive, and (2) that he was aware of the "presence and nature of the substance." Id. (citation omitted).
In the case at bar, however, Walter failed to raise any challenge to the sufficiency of the evidence regarding possession or awareness of the substance in his point relied on. Instead, Walter limits his argument to the allegation that the State failed to prove that he "knew how to manufacture methamphetamine, that he had the intent to do so or that he participated in an attempt to manufacture methamphetamine." The failure to include this challenge in a point relied on is a sufficient basis to deny review of it. Mickle, 164 S.W.3d at 46. Because Walter did not challenge possession or awareness in his point relied on, we do not review those elements in detail.
Left solely with the allegation that the State failed to prove intent,  in our review of the record we disregard all evidence and inferences to the contrary. The record indicates that Walter and his girlfriend while together bought substantial quantities of pseudoephedrine, lithium batteries, and Coleman fuel, all ingredients used in the production of methamphetamine, less than twenty-four hours before Walter was arrested. Walter and Martinson made those purchases under suspicious circumstances, buying from multiple locations. Martinson testified that she purchased these items with the intent to manufacture methamphetamine. The pseudoephedrine pills that Walter purchased independently were also used to produce methamphetamine at Walter's home. Walter purchased pseudoephedrine in excess of what is authorized by law and attempted to purchase additional quantities but was denied the ability to buy them by the business from which he attempted to purchase them. See § 195.418.
When Walter was taken into custody there was a white, powdery substance located near him in the basement of his house. Also in the basement, police found a syringe in the pocket of a pair of jeans shorts that were too big for Martinson as well as methamphetamine located in an empty bourbon bottle. There was an "active meth lab" located in and around a truck owned by Walter that was located in Walter's garage while he was physically at his home. A large quantity of methamphetamine, 58.82 grams, was found in Walter's truck. Walter had routine access to the places where the methamphetamine was found, which in and of itself is sufficient for a reasonable juror to have determined that he had or shared constructive possession of the methamphetamine. See State v. Carl, 389 S.W.3d 276, 287 (Mo. App. W.D. 2013). There is also sufficient evidence for a reasonable juror to have found that Walter knew of the presence of the manufacturing process, which was located in his truck, in his garage, and comprised of materials he had purchased alone or in concert with Martinson hours earlier. Id. Thus, there is sufficient evidence that Walter took a substantial step in an attempt to manufacture methamphetamine in that there was conduct strongly corroborative of the act of producing methamphetamine.
In arguing that the State failed to prove intent to manufacture methamphetamine, Walter relies primarily on State v. Lubbers, 81 S.W.3d 156, 162 (Mo. App. E.D. 2002), and State v. Deadmon, 118 S.W.3d 625, 628 (Mo. App. S.D. 2003), both of which were cases charged under Section 195.420, a statute addressing possession of chemicals that also requires proof of "intent to manufacture . . . a controlled substance." Walter relies on Lubbers for the proposition that the State had to prove that he knew how to manufacture methamphetamine. But a closer examination of Lubbers does not bear out his strained reading of the opinion. In Lubbers, although there was evidence that the defendant knew that her boyfriend was manufacturing methamphetamine in his automobile, there was no evidence that the defendant participated in the manufacture. The court did note in passing that nothing in the record indicated that the defendant intended or knew how to manufacture methamphetamine, but the Lubbers court in no way held that under the statute the State was required to prove that a defendant knew how to manufacture the illegal substance. See Mickle, 164 S.W.3d 49-50 (holding that knowledge of how to manufacture methamphetamine is not a statutory element despite the loose language in Lubbers).
Walters relies on State v. Deadmon also for the proposition that the State in this case proved possession but not intent to manufacture. 118 S.W.3d at 628. In Deadmon, the evidence was sufficient to prove only that the defendant knowingly possessed anhydrous ammonia as a passenger in a vehicle carrying the chemical, not that he intended to use it to manufacture a controlled substance. Id. at 628. Here, however, there was evidence that Walter undertook a substantial step in attempting to manufacture methamphetamine based in part on his purchase of the ingredients to manufacture methamphetamine with Martinson just hours before he was arrested. Additionally, unlike in the case at bar, the State in Deadmon conceded that it failed to carry its burden of proving the element of intent. Id. at 628.
Walter's broad arguments from Lubbers and Deadmon that the State "failed to produce any evidence whatsoever that [he] knew how to manufacture methamphetamine or that he had ever participated in the manufacture of methamphetamine" are without merit. The statute does not require proof that a defendant has exact knowledge of how to manufacture methamphetamine or that he has ever done so in the past. This point is denied.
Point II: SEARCH WARRANT
In his second point, Walter argues that the trial court clearly erred in failing to sustain his motions to quash the search warrant and suppress evidence and in allowing the admission of evidence obtained as a result of the issuance and execution of the search warrant. Specifically, Walter contends (a) that the searches of the garage, outdoor furnace, and Chevrolet truck were beyond the scope of the search warrant, (b) that the affidavit supporting the search warrant contained false and/or unsubstantiated information, and (c) that the officers illegally executed the search warrant by not allowing Walter to be present during the search and completion of the inventory.
Standard of Review
In State v. Stoebe, 406 S.W.3d 509, 514-15 (Mo. App. W.D. 2013), we set forth our standard of review for a ...