by Thomas C. Albus¹

Introduction

Missouri is the methamphetamine capital of the United States. In 2001, some 2,207 methamphetamine laboratory incidents were reported to the National Clandestine Laboratory Database maintained by the Drug Enforcement Administration.² The next most prolific state was California with 1,847 incidents arising from an area and population many times larger than Missouri.³ While national, state and local law enforcement were rooting out and destroying these dangerous labs,⁴ national, state and local prosecutors worked in the courts of Missouri to bring those responsible to justice. This article will discuss recent significant rulings handed down by Missouri courts which affect, and often hinder, the state's ongoing war against methamphetamine.⁵

II. Setbacks for the Prosecution

Over the past three years, a number of appellate decisions have reversed convictions in methamphetamine cases. These reversals can be placed into two broad categories: (1) "mere presence" cases in which the court finds the evidence tying a particular defendant to a crime beyond mere presence at or near the scene to be deficient; and (2) cases in which the evidence showing the defendant's criminal intent was deemed by the court to be insufficient.

A. "Mere Presence"

"The mere presence of the accused on the shared premises where the drugs are found does not suffice to convict for possession."⁶ The Missouri Court of Appeals for the Southern District seized upon the foregoing quote in reversing the conviction of Michael Janson, who had been found guilty of attempting to manufacture methamphetamine in the circuit court of Stoddard County.⁷ In Janson, the defendant was arrested outside of a business in Puxico.⁸ Inside the business, the arresting officer found a blue duffel bag containing a number of items used in the manufacture of methamphetamine, including, among other things, jars and coffee filters.⁹ Janson's conviction was reversed, however, because no evidence tied the defendant to the bag containing all of the state's evidence of methamphetamine manufacturing. The bag was located in a business accessible to a number of people throughout the day. Specifically, the court noted the "[d]efendant did not control the premises," and that he "was not an owner, manager, or employee of the business," ultimately concluding the "[d]efendant was merely present at a location where a controlled substance and related items were found."¹⁰

In another "mere presence" case, a defendant's conviction for possession of a controlled substance was reversed by the Court of Appeals for the Southern District in State v. Perkins.¹¹ Vernon Perkins had been convicted in the circuit court of Taney County for possessing two bottles of methamphetamine in a Branson motel room.¹² The methamphetamine was secreted in a light fixture in the motel room in which the defendant was staying at the time of his arrest.¹³ The motel room was rented by the defendant's wife using her maiden name, but the defendant's wife was not present at the time of the defendant's arrest or during the eight hours preceding her subsequent arrest.¹⁴ In addition to the methamphetamine, the arresting officers found $1,600 in currency in the defendant's wallet "and a notebook containing the names and addresses of [various] individuals" on a bed in the motel room.¹⁵ With respect to the methamphetamine hidden in the light fixture, the arresting officers testified the drugs cast a shadow at eye level that was immediately identifiable.¹⁶

Despite this evidence that the defendant clearly exercised a least joint possession of the items in the motel room in which the drugs were hidden and that the hiding place for the drugs was obvious to the arresting officers, the Court of Appeals reversed. "At best," concluded the court, "the State's evidence only permits an inference that Defendant was alone in the motel unit for eight or nine hours before his arrest."¹⁷ With respect to the presence of the drugs, the court concluded "the methamphetamine was not in plain view but was hidden in medicine bottles that were concealed in a bathroom light fixture."¹⁸ This conclusion appears to disregard the testimony of the arresting officers that the methamphetamine, if not in plain view, was plainly obvious to them. Additionally, Perkins is troubling because the court expressly took into consideration the defendant's testimony, which was contrary to the verdict. Specifically, the court noted that the defendant denied knowledge of the drugs, and denied that any of the $1,600 found in his wallet was related to drugs.¹⁹ Earlier in its opinion, the court indicated such evidence unfavorable to the state was to be disregarded.²⁰

State v. Smith is another example of a reversed methamphetamine conviction, this time by the Court of Appeals for the Western District, for insufficient evidence.²¹ Smith involved a conviction in the circuit court of Buchanan County for manufacture of methamphetamine. The defendant was convicted of manufacturing the drug at his parents' farm, where he had lived for 10 years.²² At the farm, officers executing a search warrant found methamphetamine ingredients both in an outbuilding and in the kitchen of the farmhouse.²³ In sum, the state's evidence undeniably established the presence of a significant methamphetamine manufacturing operation at the house where the defendant had lived for 10 years.²⁴ The state also produced evidence of finished methamphetamine and drug paraphernalia in a bedroom in the house.²⁵

The Court of Appeals, however, determined that reversal was required because of a "plausible possibility that another party or parties was involved in the . . . manufacture of methamphetamine without [the defendant's] participation."²⁶ In addition to its requirement that the state prove the defendant's guilt beyond all other "plausible possibilit[ies]," the holding in Smith is troubling because, like Perkins, the court expressly relied on evidence contrary to the state's case in violation of the Supreme Court of Missouri's holding in State v. Dulany.²⁷ The court took note of (1) evidence defendant possessed no illegal substances at the time of his arrest, (2) the officers' mistaken belief that defendant had purchased methamphetamine ingredients at a local store, and (3) a defense witness's testimony placing others at defendant's residence in the hours leading up to the search. Worst of all, the court noted no evidence that the methamphetamine found in the bedroom was linked to the defendant while acknowledging that the defendant had failed to include photographs of that very bedroom in the record on appeal in violation of the Court's rules.²⁸

B. Failure to Prove Criminal Intent

The primary ingredient in methamphetamine is ephedrine or pseudoephedrine, a drug widely available in the form of over-the-counter cold pills.²⁹ Section 195.246, of the Missouri statutes prohibits the possession of pseudoephedrine with the intent to manufacture methamphetamine.³⁰ Prosecutors have encountered difficulty convincing appellate courts that defendants found in possession of pseudoephedrine and other chemicals and equipment possessed the necessary intent that those precursors and chemicals be converted into methamphetamine, often despite circumstances strongly suggesting such an intent.

The parallel cases of State v. Morrow and State v. O'Brien rejected convictions based upon relatively thin evidence of the defendants' criminal intent.³¹ In those cases, the defendants were traveling together in the same truck.³² Defendant Morrow was observed purchasing toluene from a paint store; defendant O'Brien was observed purchasing drain cleaner from a hardware store.³³

After making their purchases, each defendant returned to the truck. The truck was stopped and the defendants arrested.³⁴ A search of the truck revealed, in addition to the toluene and drain cleaner (both of which are used in the manufacture of methamphetamine), four bottles of pseudoephedrine pills, one bottle of ephedrine pills, and an air tank.³⁵ Defendant Morrow subsequently made a written statement in which he admitted using methamphetamine as recently as two days earlier but denied an intent to manufacture methamphetamine with the items found in the truck.³⁶

The Court of Appeals for the Western District held there was not sufficient evidence to support the conviction of the defendants for possession of pseudoephedrine with the intent to manufacture methamphetamine.³⁷ The court concluded that "[w]hile the evidence indicated that Mr. Morrow possessed chemicals used in the . . . area to manufacture methamphetamine and that Mr. Morrow actually used methamphetamine two nights before his arrest, such evidence alone was insufficient to prove that he intended to manufacture methamphetamine. . . ."³⁸

Of special note to the court was the state's failure to present evidence that "Morrow planned to use the supplies he possessed to manufacture methamphetamine or that he knew how to manufacture the substance."³⁹ Despite the court's determination that no such evidence was adduced, its opinion alone reveals evidence suggesting both conclusions. That Morrow and O'Brien had accumulated five bottles' worth of the main ingredient in methamphetamine (pseudoephedrine and ephedrine) in their truck, in addition to other methamphetamine ingredients and an air tank in which anhydrous ammonia (another ingredient) might be held, strongly suggests they knew how to make methamphetamine and were intending to do so. Moreover, Morrow and O'Brien split up to purchase the toluene and drain cleaner. This activity further suggests their criminal intent because they likely feared one person purchasing multiple, otherwise unrelated methamphetamine ingredients would arouse the suspicion of a store clerk. Finally, that Morrow used methamphetamine, in addition to his conduct and possession of ingredients, provides a motive to manufacture the drug.

State v. Arles involved a similar factual situation to that presented in Morrow and O'Brien.⁴⁰ Like Morrow and O'Brien, the defendant was found in possession of numerous ingredients used in the production of methamphetamine, including pseudoephedrine, camp fuel, and acetone.⁴¹ Like Morrow and O'Brien, the defendant and his counterpart divided up to make their purchases. In Arles, the defendant and his companion even went so far as to visit separate checkout lanes within the same store to purchase pseudoephedrine.⁴² However, the evidence against the defendants in Arles went beyond that adduced in Morrow and O'Brien in two respects. The officers testified about the defendant's visible nervousness in Arles. Also, the defendant instructed his counterpart not to say anything to the police in Arles.⁴³

The foregoing additional evidence notwithstanding, the court in Arles held the evidence of the defendant's criminal intent insufficient to sustain a guilty verdict against him for possession of pseudoephedrine with the intent to manufacture methamphetamine.⁴⁴ The court pointed out that "[a]ll the items that defendant purchased and had in his possession at the time of arrest were items legally acquired."⁴⁵ This observation is troubling because all of the ingredients in methamphetamine and the equipment needed to create it are "legally" available. If the court meant to require that some ingredients be "illegally acquired," no one could be convicted of possession with intent to manufacture. If not, the court has simply violated the standard of review for denials of motions for acquittal, which requires the court to view the evidence in the light most favorable to the guilty verdict. "[A]ny contrary evidence and inferences are discounted."⁴⁶ The same can be said of the court's note that the state's expert admitted the defendant did not possess all the items necessary to create methamphetamine. Hopefully, the court did not mean to imply no similar conviction could withstand a motion for acquittal absent each and every ingredient needed to create the drug and is merely guilty of again considering evidence outside the appellate standard in Smith it had cited earlier. The court noted additional evidence favorable to the defendant, including (1) his explanation for the purchase of camp fuel and (2) his explanation for purchasing so much pseudoephedrine and doing so from different checkout lanes.⁴⁷

Finally, with respect to the defendant's admonishment of his counterpart not to speak to the police after her arrest, the court acknowledged such evidence "can manifest a consciousness of guilt and be admissible in a criminal trial."⁴⁸ However, the court looked at the additional statement of the defendant to his counterpart that the police were "mak[ing] something out of nothing" and ultimately determined, "This court does not find that defendant's statement evidenced consciousness of guilt."⁴⁹ Presumably the court meant to determine that no reasonable juror could find the statement offered by the state evidenced consciousness of guilt. Otherwise, it errored in susbtituting its own assessment of the evidence for that of the jury. In any case, the court's consideration of additional statements favorable to the defendant in determining the weight of the statement offered in support of conviction appears to be yet another example of the misapplication of the proper standard of review outlined in Smith.⁵⁰

State v. Lubbers is a more recent, more sweeping overruling of a guilty verdict.⁵¹ Lubbers affirmed the defendant's conviction of possession of methamphetamine but overruled her conviction for possession of pseudoephedrine with the intent to manufacture methamphetamine for lack of sufficient evidence, despite a considerable quantity of evidence suggesting the defendant's intent – not the least of which was the presence of a mobile methamphetamine lab in the truck defendant was driving.⁵²

Defendant was stopped while driving a truck lent to her by her boyfriend.⁵³ The truck smelled of ether, a highly flammable ingredient used in the manufacture of methamphetamine.⁵⁴ The defendant consented to a search of the truck (thereby asserting some degree of control over it) that the officers requested based upon the suspicious smell emanating from the truck.⁵⁵ Liquids found in jars tested positive for methamphetamine.⁵⁶ A search of the truck revealed "plastic wrap, coffee filters, plastic tubing, and several jars, some of which contained a liquid," garden pump handles and sprayers (which could be used in the final stage of methamphetamine processing), addi-tional jars containing a "two-layer liquid," lithium batteries, "a college chemistry book, coffee filters, several cans of starter fluid, rubber gloves, various funnels, rock salt" and table salt.⁵⁷ All of the foregoing items are used in the manufacture of methamphetamine. Additionally, the search revealed a purse containing a compact with white methamphetamine residue on it, a bottle of 56 ephedrine tablets, and a note with dollar amounts and instructions about a drug business.⁵⁸

Clearly, the amount and strength of evidence against the defendant in Lubbers far exceeded that adduced in Morrow, O'Brien, Agee and Alers. The defendant was found with more methamphetamine-making ingredients, displayed consciousness of guilt by leaning over to arrange items in the truck's cabin before stopping for the police, was found with finished product both in her compact and in a two-layer liquid fermenting in a jar, and possessed notes describing a drug business in her purse.⁵⁹ Notwithstanding this unusually high amount of evidence, the Missouri Court of Appeals for the Eastern District reversed the defendant's conviction for possession of pseudoephedrine with the intent to manufacture methamphetamine for lack of sufficient evidence.⁶⁰ Specifically, the court concluded that "[t]he state failed to present any evidence that Defendant intended to manufacture metham-phetamine."⁶¹ The court did not consider the evidence of defendant's (1) possession of methamphetamine (both in liquid and powder form) and (2) a large amount of pseudoephedrine, as well as her (3) furtive activity in the truck cab before stopping for the police, to constitute evidence of intent to manufacture methamphetamine.

Perhaps the court interpreted the law to require that a defendant possess pseudoephedrine with the intent to manufacture methamphetamine herself in order to violate § 195.246. Such a view would explain why the court noted the absence of evidence that the defendant had "knowledge of the methamphetamine manufacturing process."⁶² Certainly, though, this is too narrow an interpretation. This interpretation would prevent the prosecution of a methamphetamine user who buys or steals pseudoephedrine and trades them for finished product with a methamphetamine cook. Such a person clearly possesses pseudoephedrine with the intent that it be used to create methamphetamine; whether the possessor of the pseudoephedrine or someone else down the line was to transform it into methamphetamine should be irrelevant.⁶³

Also troubling is Lubbers' liberal citation of Morrow, Arles and Agee, even though those cases, by the court's own admission, involved significantly less damning evidence than that found in the defendant's possession in Lubbers.⁶⁴ The court in Lubbers explains away the dissimilarity of those cases by considering evidence favorable to the defense (the clearly interested testimony of the defendant's boyfriend, no less) in violation of the appellate standard set forth in Dulany and Smith.⁶⁵ Lubbers thus represents the most striking in a line of Missouri cases rejecting as insufficient significant evidence of defendants' criminal intent regarding pseudoe-phedrine.

III. Conclusion

The war on methamphetamine being waged by law enforcement and the prosecuting bar in Missouri has seen both victories and setbacks in the appellate courts of Missouri in recent years. Unfortunately, statistics showing Missouri to be the methamphetamine capital of the United States suggest that more battles are sure to be fought in the coming years.

Footnotes

¹ Mr. Albus is an Assistant United States Attorney for the Eastern District of Missouri. Before being appointed to his current position, Mr. Albus served as a Special Assistant United States Attorney for the Eastern District of Missouri and was charged specifically with the federal prosecution of methamphetamine cases. Mr. Albus received his law degree in 1997 from the University of Missouri-Columbia School of Law and his undergraduate degree from Georgetown University in 1994. The opinions expressed in this document are those of the author alone and do not necessarily reflect the views of the United States Attorney's Office for the Eastern District of Missouri or the United States Department of Justice.

² www.dea.gov.

³ Id.

⁴ See, e.g., Anna S. Vogt, The Mess Left Behind: Regulating the Cleanup of Former Methamphetamine Laboratories, 38 Idaho L. Rev. 251, 254-63 (2001) (discussing environmental and health hazards associated with methamphetamine production).

⁵ The author would like to thank his colleagues at the U.S. Attorney's office for the Eastern District of Missouri, as well as his wife, Alicia Albus, Esq., who offered helpful comments on an earlier draft. The author also offers his special thanks to Washington University law student Elizabeth Epstein for her able research assistance. Any errors or other inaccuracies remain those of the author.

⁶ State v. Janson, 964 S.W.2d 552, 554 (Mo. App. S.D. 1998); quoting State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975).

⁷ Id. at 552.

⁸ Id. at 553.

⁹ Id. (coffee filters are used in the manufacture of methamphetamine); see, e.g., State v. Potter, 72 S.W.3d 307, 312 (Mo. App. S.D. 2002).

¹⁰ Id. at 555; see also State v. Withrow, 8 S.W.3d 75, 81 (Mo. banc 1999) (defendant was present in the very room in which methamphetamine was being manufactured; however, because others had access to the room and the door to the closet in which the methamphetamine was cooking was locked, the defendant's conviction based on his presence alone could not stand) (n.b. Withrow also contains an important clarification of the law of attempt that overrules numerous previous opinions of the various districts of the Court of Appeals); cf. State v. Potter, 72 S.W.3d 307 (Mo. App. S.D. 2002) (affirming conviction of defendant in joint control of premises for manufacture of methamphetamine).

¹¹ 996 S.W.2d 753 (Mo. App. 1999).

¹² Id. at 754.

¹³ Id. at 754-55.

¹⁴ Id. at 755.

¹⁵ Id.

¹⁶ Id.

¹⁷ Id. at 756.

¹⁸ Id. at 757.

¹⁹ Id. at 755-56; cf., e.g., United States v. Hollingsworth, 257 F.3d 871, 878-79 (8th Cir. 2001) ("Our scope of review on a sufficiency of the evidence challenge is very narrow . . . bits of evidence that tend to exculpate the appellant, which the jury presumably weighed against the facts that tend to inculpate the appellant" are not to be weighed by the Court of Appeals).

²⁰ Id. at 754 (quoting State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989); cf. State v. Davis, 982 S.W.2d 739, 741 (Mo. App. E.D. 1998) (sufficient evidence existed to convict defendant of attempt to manufacture methamphetamine where methamphetamine and methamphetamine ingredients were found in defendant's house even though defendant was not present at the time of police search and three others were; the court considered the defendant's nervousness and flight in analyzing whether sufficient evidence had been adduced); see also State v. Motley, 976 S.W.2d 502 (Mo. App. E.D. 1998) (affirming conviction based upon same set of facts).

²¹ 33 S.W.3d 648 (Mo. App. W.D. 2000).

²² Id. at 651.

²³ Id at 651-52.

²⁴ Id at 654 et seq. (in addition to the ingredients found in and around the home, officers found trash indicating additional ingredients near the outbuilding, including empty blister packs of pseudoephedrine (the primary ingredient in methamphetamine), stripped lithium batteries (the lithium portion of the battery is utilized in the manufacture of the drug) and actual jugs of liquid in which methamphetamine and methamphetamine oil had already been manufactured).

²⁵ Id. at 652, 654.

²⁶ Id. at 655.

²⁷ 781 S.W.2d 52 (Mo. banc 1989) ("On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary.").

²⁸ 33 S.W.3d at 655, n.3; see also Rule 81.12(a) ("the record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented . . . to the appellate court for decision."); but see Rule 81.12(c) (respondent may file additional material for record); Rule 81.12(e) (court may order supplementation to inadequate record).

²⁹ See State v. Rollett, 80 S.W.3d 514, 516 (Mo. App. W.D. 2002).

³⁰ Section 195.246, RSMo Cum. Supp. 2002. Section 190.235, RSMo Cum. Supp. 2002 (prohibiting the delivery, possession "with intent to deliver, or manufacture, with intent to deliver, drug paraphernalia, knowing" such items will be used to "manufacture...convert, produce, process, prepare . . . a controlled substance in violation of sections 195.005 to 195.425").

³¹ 996 S.W.2d 679 (Mo. App. W.D. 1999), and 5 S.W.3d 532 (Mo. App. W.D. 1999), respectively.

³² 996 S.W.2d at 680-81 (for clarity, all cites will be to Morrow but the facts and law of both cases are substantially identical).

³³ Id. at 681.

³⁴ Id. (the officers stopped the truck because it had stopped at a day care center, although their plan had been to follow the truck back to a suspected laboratory).

³⁵ Id.

³⁶ Id.

³⁷ Id. at 683.

³⁸ Id.

³⁹ Id.

⁴⁰ 998 S.W.2d 136 (Mo. App. S.D. 1999).

⁴¹ Id. at 138.

⁴² Id. see also State v. Agee, 37 S.W.3d 834 (Mo. App. W.D. 2001) (wherein the court reverses a conviction for possession of pseudoephedrine with the intent to manufacture methamphetamine in a factual matrix similar to Arles, O'Brien, and Morrow. Indeed, the court in Agee cites all three of the foregoing cases and, in the opinion of the author, erroneously considers evidence favorable to the defense in reviewing a challenge to the sufficiency of the evidence. The most striking aspect of Agee, however, is the court's refusal to weigh the defendant's act of throwing pseudoephedrine out the window of his car after the police had made chase as evidence of consciousness of guilt. 37 S.W.3d at 839 ("we do not believe that the brief flight and the act of throwing the tablets out the window is enough to prove a violation of section 194.240").

⁴³ Id. at 139-40.

⁴⁴ Id. at 140.

⁴⁵ Id. at 139.

⁴⁶ Id. quoting State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997).

⁴⁷ Id. at 139, 140 cf. State v. Hawthorne, 74 S.W.3d 821 (Mo. App. S.D. 2002) (upholding conviction of possession of pseudoephedrine based upon crushed nature of pills and proximity of powdered pills to anhydrous ammonia, which had no legitimate combination with pseudoephedrine).

⁴⁸ Id. at 140 citing State v. Marvel, 756 S.W.2d 207, 211-12 (Mo. App. S.D. 1988).

⁴⁹ Id. at 140.

⁵⁰ See note 27.

⁵¹ 81 S.W.3d 156 (Mo. App. E.D. 2002).

⁵² Id. at 163.

⁵³ Id. at 158 (I have included the fact that defendant and her boyfriend both contended that she was driving boyfriend's truck at the time of her arrest for clarity with respect to subsequent facts. However, defendant's contention that the truck she was driving belonged to her boyfriend should be of no concern to an appellate court determining sufficiency of the evidence under Smith). For a discussion of the law of joint actual possession resulting in a decision favorable to the prosecution, see State v. Ames, 44 S.W.3d 825, 829 (Mo. App. S.D. 2001).

⁵⁴ Id.

⁵⁵ Id.

⁵⁶ Id.

⁵⁷ Id. at 158-59.

⁵⁸ Id. at 159.

⁵⁹ Id. at 158-59 (The notes in her purse read: "Have Dale ask Mike about my hundred dollars. He don't get anymore until he pays. No fronts. Dale or Mike will go talk to Roy. Have Roy give me my ring. Knock price off bill. Dall will give you 75 plus 7 plus my cookies").

⁶⁰ Id. at 163.

⁶¹ Id. at 162.

⁶² Id. at 162 (Of course, in Lubbers the defendant's possession of pseudoephedrine, powder methamphetamine, liquid metham-phetamine fermenting in a jar, other methamphetamine ingredients and a college chemistry book are all affirmative indicative she did possess knowledge of the methamphetamine cooking process).

⁶³ See, e.g. State v. White, 14 S.W.3d 121, 126 (Mo. App. W.D. 2000) ("Intent to manufacture [methamphetamine] may be proven by evidence that defendant planned to manufacture methamphetamine or knew how to manufacture methamphetamine" or planned to give the pseudoephedrine to another for the purpose of making methamphetamine).

⁶⁴ Lubbers, 81 S.W.3d at 162.

⁶⁵ Id. at 162 (the court does go on to analyze the evidence "disregarding what [the] Boyfriend said" but still seems to insist the state did not adduce evidence that the defendant knew how to manufacture methamphetamine herself and that such evidence is necessary to support her conviction).