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State v. Russell

Court of Appeals of Missouri, Eastern District, Second Division

November 21, 2017

STATE OF MISSOURI, Respondent,
v.
MICHAEL R. RUSSELL, Appellant.

         Appeal from the Circuit Court of Jefferson County 15JE-CR02309-01 Honorable Mark T. Stoll

          Lisa P. Page, Presiding Judge.

         Following a jury trial, Michael Russell ("Defendant") was convicted of one count of attempting to manufacture a controlled substance, in violation of Section 195.211, [1] under a theory of accomplice liability.

         On 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.

         We affirm.

         BACKGROUND

         On 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.

         Inside, 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.

         In 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 his.

         Deputy 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 acidic.[2]

         Defendant was charged with one count of the class B felony of attempting to manufacture a controlled substance, and was tried before a jury.

         At 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.

         The jury convicted Defendant of attempting to manufacture a controlled substance, and Defendant was sentenced to ten years of imprisonment. This appeal follows.[3]

         Point I-Sufficient Evidence Exists to Sustain Defendant's Conviction as an Accomplice to the Attempted Manufacture of Methamphetamine

         In his 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.

         Standard of Review

         Appellate 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).

         Analysis

         The 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. banc 2001).

         1. Eastabrook had taken a substantial step in attempting to manufacture methamphetamine

         Section 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 ...

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