Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Jefferson County 15JE-CR02309-01
Honorable Mark T. Stoll
P. Page, Presiding Judge.
a jury trial, Michael Russell ("Defendant") was
convicted of one count of attempting to manufacture a
controlled substance, in violation of Section 195.211,
under a theory of accomplice liability.
appeal, Defendant contends the trial court: (I) erred in
entering judgment against him due to the lack of sufficient
evidence demonstrating he either attempted to manufacture
methamphetamine or that he aided another in this attempt; and
(II) abused its discretion in failing to either grant a
mistrial or instruct the jury to disregard a witness's
testimony that Defendant was imprisoned during trial.
February 19, 2015, Deputy Anthony Barbato and other officers
from the Jefferson County Sheriff's Department executed a
search warrant at the residence of Scott Eastabrook
("Eastabrook"), having probable cause to believe
the residence contained a methamphetamine lab. The officers
were refused entry, attempted to forcibly enter through the
front door, and found this entrance to be barricaded from the
inside. Deputy Barbato and his team were forced to enter the
residence through the attached garage.
the officers immediately encountered five people-Eastabrook
and Jennifer Mullinex ("Mullinex") among them;
these five were detained and taken outside. The officers also
found Defendant in Eastabrook's bedroom "just
standing there;" he was also detained.
Eastabrook's bedroom and throughout the residence, Deputy
Barbato and his team found numerous components commonly used
in methamphetamine production, including hydrogen peroxide,
isopropyl alcohol, fuel, glass dishes covered in a chemical
residue, dismantled batteries, damaged lithium strips from
batteries, syringes, coffee filters, tubing and containers
with chemical residue, damaged cold packs, lighter fluid,
aluminum foil, containers of acids, funnels, digital scales,
and "a lot of pills." Eastabrook admitted in a
written statement that all the "meth stuff" was
Barbato and his team also discovered a large piece of tubing
and a bottle labeled "muriatic acid" in the bed of
Defendant's truck, which was parked outside
Eastabrook's residence. Deputy Barbato tested the
"acid" with a pH strip, confirming the substance as
was charged with one count of the class B felony of
attempting to manufacture a controlled substance, and was
tried before a jury.
trial, during cross-examination of Mullinex, the State
inquired as to her relationship with Defendant, specifically
inquiring into their correspondence in the months leading up
to trial. After a series of questions, Mullinex revealed she
had corresponded with Defendant "[w]hile he was in
prison." Defendant moved for a mistrial, and
alternatively requested the court instruct the jury to ignore
Mullinex's statement; these requests were overruled.
jury convicted Defendant of attempting to manufacture a
controlled substance, and Defendant was sentenced to ten
years of imprisonment. This appeal follows.
I-Sufficient Evidence Exists to Sustain Defendant's
Conviction as an Accomplice to the Attempted Manufacture of
first point on appeal, Defendant contends the trial court
erred in entering judgment against him on the count of
attempting to manufacture a controlled substance, in
violation of Section 195.211. Defendant maintains
insufficient evidence existed to prove he possessed the
necessary components to manufacture methamphetamine, or that
he acted together or aided another in attempting to
manufacture methamphetamine. Defendant asserts he was thereby
deprived of his right to due process of law, as guaranteed by
the Fourteenth Amendment to the United States Constitution
and Article I, section 10 of the Missouri Constitution.
review of this claim is limited to determining whether there
is sufficient evidence from which a reasonable juror might
have found the defendant guilty beyond a reasonable doubt.
State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc
1992). The evidence and all reasonable inferences drawn
therefrom are viewed in a light most favorable to the
jury's verdict, and we disregard all contrary evidence
and inferences. Id. This court does not weigh the
evidence, nor does it determine the reliability or
credibility of the witnesses. State v. Neel, 81
S.W.3d 86 (Mo. App. W.D. 2002). We do not act as a super
juror with veto power but will defer to the trier of fact.
State v. Nash, 339 S.W.3d 500, 559 (Mo. banc 2011).
State charged Defendant with attempting to manufacture a
controlled substance, methamphetamine, under a theory of
accomplice liability. Thus, the State was required to prove:
(1) Eastabrook (or perhaps others) had taken a substantial
step in attempting to manufacture methamphetamine; and (2)
Defendant, with the purpose of promoting or furthering the
manufacture of methamphetamine, acted together with or aided
Eastabrook (or these others) in committing this offense.
See State v. Wurtzberger, 40 S.W.3d 893, 896 (Mo.
Eastabrook had taken a substantial step in attempting to
195.211(1) states "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."
Additionally, for attempts, Section 564.011.1 provides:
A person is guilty of attempt to commit an offense when, with
the purpose of committing the offense, he does any act which
is a substantial step towards the commission of the offense.
A "substantial step" is conduct which is strongly
corroborative of the firmness of the ...