A jury fоund James Tilley (“Defendant”) guilty of attempting to manufacture methamphetamine (§ 195.211), possession of methamphetamine (§ 195.202), and possession of precursor ingredients for methamphetamine with the intent to manufacture that drug (§ 195.420). 1 Because he was proven to be a prior and persistent offender, the trial judge imposed sentence.
Defendant appeals and presents issues about the following: (1) defense counsel’s alleged conflict of interest arising from his
STANDARD OF REVIEW
This court reviews the facts in the light most favorable to the verdict.
State v. Withrow,
FACTS
On April 13, 2001, deputy sheriff Sullivan (“Sullivan”) learned via a female informant that she had been at Defendant’s house “the night before.” While she was there, she received methamphetamine that “was pulled from underneath the cabinet between the kitchen and the living room.”
Based on that information, Sullivan and sheriff’s deputy Penrod (“Penrod”) went to Defendant’s house at 1666 County Road 216 near Chaffee, Missouri. When they arrived, Defendant “was on the roof of a shed that was just southwest of the residence.” Another person (later identified as Roger Graviett) came out the front door of the house. Penrod moved toward Gra-viett to speak with him, while Sullivan went to the shed to talk to Defendant.
Sullivan testified he “hollered up to” Defendant and asked him to come down and talk. Defendant stepped to the edge of the shed roof and stated he would come down. Thereon, Defendant turned and walked away from the roof edge. Sullivan antiсipated Defendant was proceeding to the back of the shed where a ladder was located; consequently, Sullivan went to meet Defendant at the bottom of the ladder. After getting to the back and waiting “for a few seconds” without Defendant appearing, Sullivan stepped back so he “could see over the ladder.” Athough the shed was “small,” Sullivan could not see Defendant; consequently, he walked to the front of the shed. When Sullivan still could not see Defendant, he returned to the ladder and viewed Defendant starting down the ladder. The foregoing caused Sullivan to wonder what Defendant was doing because it was a small roof, yet Sullivan had to walk around to look for Defendant. He also noted there were no tools on the roof.
After Defendant was on the ground, Sullivan told him about the informant and asked permission to search his house. Defendant consented to the search. Penrod then entered the house while Sullivan stayed outside with Defendant and Gra-viett. When Penrod returned in “barely” over a minute, he indicated to Sullivan he found methamphetamine in the cabinet location described by the informant. The deputies then arrested Graviett and Defendant, called for a transport deputy, and began a more thorough search of the house.
Sullivan started the search in a “utility room” located between the bathroom and the back wall of a bedroom. There, he found a “duffel bag” in the middle of the floor. Knowing methamphetamine labs are often mobile and components thereof are often transported in this manner, Sulli
After seizing the duffel bag and its contents, Sullivan recalled Defendant’s delay in descending the shed roof. Accordingly, he went to the roof where he found a “spot of white powder that was smashed in the shingles.” He collected a sample of that powder, and a subsequent analysis thereof revealed it was methamphetamine.
Meanwhile, Penrod finished searching the kitchen area. In doing so, he found empty plastic bags in a trаsh can located in the kitchen. These empty bags contained a residue, i.e., “a real fine powder that they weren’t able to scrape out when they were cleaning the bag out.” This powder residue tested positive for methamphetamine.
The medicine cabinet, in the only bathroom in Defendant’s home, contained two syringes. Penrod testified this fact was of “particular interest” because (1) some methamphetamine users inject the drug with this type of syringe, and (2) he found nothing in the bathroom to indicate a “medicinal purpose for the syringes,” i.e., he found no “insulin or anything as such.”
At trial, Sullivan testified that each item in the duffel bag was commonly used by persons who manufacture methamphetamine using the anhydrous ammonia method and explained in detail the function of each. Moreover, he testified that based on what he found in the bag and the fact that methamphetamine was in the house, it was his opinion that a substantial step had been taken toward the manufacture of methamphetamine. Penrod testified the “white” color of the methamphetamine found at Defendant’s house indicated it came from a “newer” batch, i.e., chemical evaporation will cause methamphetamine to darken over time.
Both Defendant and Graviett were charged with violations of controlled substance laws and both were represented by public defender Christopher Davis (Davis). By the time of Defendant’s trial, Graviett had pleaded guilty to “manufacturing methamphetamine.” Called as a witness for Defendant, Graviett testified that on April 13 he was staying at Defendant’s house; Defendant was gone for two or three days staying with his girlfriend; the duffel bag was brought to Defendant’s house by Brian Simpson and left there without Defendant’s knowledge; Defendant just returned from his girlfriend’s home and had not been inside his house by the time the police arrived; Defendant knew nothing about the duffel bag or its contents; and the methamphetamine found in the kitchen and on the shed roof belonged to him (Graviett).
The jury convicted Defendant on all charges, and this appeal followed. Additional facts will be given as required to analyze Defendant’s points relied on.
DISCUSSION AND DECISION
Point I: Unpreserved Conflict Of Interest Claim
In his first point, Defendant alleges the trial court plainly erred when it failed to, sua sponte, declare a mistrial when defense witness Graviett testified. Defendant claims “an actual conflict of interest had developed at that pоint because counsel [Davis] represented both [Defendant and Graviett] when their interests became directly adverse.” The factual context for this argument is as follows.
Graviett’s claim at Defendant’s trial that Defendant knew nothing about the duffel
Defendant argues that if Davis had not represented both Graviett and him, the court would have allowed admission of the letter. As such, Defendant claims the letter would have been a prior, consistent statement attributable to Graviett which would have bolstered Graviett’s credibility with the jury. He insists that the court committed plain error when it did not sua sponte declare a mistrial after he was unable to rehabilitate Graviett due to circumstances arising out of defense counsel’s “conflict of interest.”
For Defendant to prevail on his claim of plain error he must show that the court’s failure to
sua sponte
grant a mistrial so substantially affected his rights that a manifest injustice or misсarriage of justice will inexorably result if left uncorrected.
State v. Ballard,
To convict a trial сourt of an error, not put forth by the defendant (e.g., failure to declare a mistrial
sua sponte),
allows an accused to stand mute when incidents unfavorable to him or her occur during trial, gamble on the verdict, and then seek favorable results on appeal.
Weeks,
Here, there was no error, plain or otherwise, resulting from the court’s failure to declare a mistrial based upon an alleged сonflict-of-interest claim. First, we are not persuaded any such conflict existed. 3 This follows because Davis negotiated a plea agreement wherein Graviett admitted possessing the subject items with the intent to manufacture methamphetamine. Graviett’s letter to Davis was consistent with what Graviett later admitted when he pleaded guilty. Consequently, Daws could not have reasonably foreseen, as he prepared for Defendant’s trial, that the letter would become relevant.
Second, even if the letter had been disclosed in response to the prosecutor’s disсovery request, the trial court could have properly ruled it inadmissible as it was merely cumulative of Graviett’s testimony. Graviett testified Defendant had no knowledge of the bag or its contents being in Defendant’s home. He accepted responsibility for such at Defendant’s trial. Moreover, Graviett’s testimony was that he gave Davis this information before he pleaded guilty, i.e., “the first time I met you.”
4
From this, the jury would obviously have known that such a statement, if made to Davis, was not a recent fabrication of Graviett’s claim of sole responsibility. Consequently, the “first time they met” testimony was as “rehabilitativе” as the letter would have been. A court does not plainly err, when for any reason, it excludes merely cumulative evidence.
State v. Nicklasson,
On this record, we find no manifest injustice or miscarriage of justice resulted from the exclusion of Graviett’s letter. Point denied.
Point III: Sufficiency of Evidence: Count III Conviction 5
Defendant’s third point maintains there was insufficient evidence to convict him of possessing precursor ingredients for methamphetamine as proscribed by § 195.420. 6 Specifically, he contends that the Statе did not prove beyond a reasonable doubt that Defendant possessed the subject chemicals because it failed to establish Defendant knew the chemicals were present, or that he had any control over them. 7 We disagree.
“Constructive possession requires, at a minimum, evidence that the defendant had access to and control over the premises where the materials were found.... When the accused shares control over the premises, as here, further evidence is needed to connect him to the manufacturing process. The mere fact that a defendant is present on the premises where the manufacturing process is occurring does not by itself make a submissible case. Moreover, proximity to the contraband alone fails to prove ownership. There must be some incriminating evidence implying that the defendant knew of the presence of the manufacturing process, and that the materials or manufacturing process were under his control.” (Citations omitted.)
Id.
at 80[11, 13-15] Whether sufficient additional incriminating circumstances have been proven is determined by looking at the totality of the circumstances.
State v. Purlee,
Incriminating factors here include the following: The house, where the duffel bag was found, was Defendant’s place of residence, and Defendant was at hоme when the officers arrived. Although Graviett testified he was “living with [Defendant] at that moment[,]” he signed an arrest report that listed Oran, Missouri (his parents address), as his place of residence. Regardless of where Graviett lived, the jury could have inferred Defendant was the principal occupant of this house, and as such, he had routine access to the kitchen, utility room, and bathroom. Defendant’s routine access to the utility room (duffel bag location), kitchen (methamphetamine in two locations), and bathroom (syringes in medicine cabinet) is an incriminating fact not destroyed because Graviett may have had access to those areas.
See State v. Smith,
Moreover, Defendant’s actual possession of newly processed methamphetamine showed his familiarity with this controlled substance and further supported the inference that Defendant knew the duffel bag contained chemicals and paraphernalia used to manufacture methamphetamine.
See State v. Camden,
It was wholly logical and reasonable for the jury to infer that the Defendant knew the precursor chemicals were present in his utility room as charged, and that he had control over thеm based upon the following established or reasonably infera-ble facts: (1) Defendant was on his premises in actual possession of freshly-made methamphetamine; (2) methamphetamine, appealing similar to that possessed by Defendant, was found at two unsecured locations in the kitchen (to which Defendant had routine access); (3) the bathroom medicine cabinet contained syringes often used to inject illicit methamphetamine (with evidence that the occupants had no lawful need for such syringes); (4) the duffel bag was in open view in the utility room; and (5) Defendant had routinе access to the described areas of his house. Based on the totality of the circumstances, we conclude the State made a submissible case against Defendant on the charge of possession of precursors.
In so stating, we have not ignored Gra-viett’s testimony that Defendant had not been home for two or three days prior to April 13, 2001; he arrived home approximately twenty minutes before the officers arrived; he ascended the shed roof without going inside his house; and the methamphetamine on the shed roof was his (Gra-viett’s), which had apparently fallen from his shirt pocket. Whether he was telling the truth regarding any of the foregoing was for the jury to decide.
Smith,
Point II: Sufficiency Of Evidence: Count I Conviction
Defendant’s second point claims there is insufficient evidence to convict him of attempting to manufacture methamphetamine. He argues the State did not prove beyond a reasonable doubt that Defendant had taken a substantial step toward manufaсturing methamphetamine by processing and preparing chemicals and lab paraphernalia.
With exceptions not implicated here, § 195.211.1 makes it unlawful “for any person to ... attempt to ... manufacture or produce a controlled substance.” An “attempt to commit an offense ... [means] a substantial step toward the commission of the offense.” § 564.011.1;
Withrow,
In ruling Point III adversely to Defendant, we held sufficient evidence existed to find Defendant in constructive possession of the duffel bag and its contents. As to the duffel bag contents, Sullivan testified that everything contained therein was routinely used by persons who make methamphetamine by the “anhydrous” method. He explained as follows: (1) powder from crushed or ground-up ephedrine or pseu-doephedrine pills are soaked in Liquid Heat; (2) the pill product thus dissolved is filtered through coffee filters; (3) the soluble form of pure ephedrine realized is evaporated (a process ordinarily accelerated by heating the soluble over an electric skillet or hot plate); (4) the solid, pure ephedrine produced is put in a bowl and two materials are added and stirred (anhydrous ammonia and lithium strips peeled from lithium batteries); (5) the lithium batteries are routinely dismantled by using vice grips and side cutters; (6) the compound realized from mixing the lithium, ephedrine, and anhydrous ammonia is placed in a soda bottle and treated with ether, then plastic tubing is inserted through the soda bottle lid; and (7) a mixture of Liquid Fire and salt is then added, which generates hydrochloric gas under pressure and culminates in the creation of methamphetamine.
Sullivan also testified to the following: Large spoons are required to stir the various mixtures to avoid сhemical burns. Rubber gloves, such as those found in the duffel bag, are needed for the same reason. Other than the electric skillet, there were no “other items of normal cooking or food preparation” in the bag, nor were any coffee grounds found therein. The salt in the duffel bag was not in a normal salt container; it was in a plastic bag. Plastic bags are customarily used by meth makers to transport salt to avoid leaking as they carry it about.
Photographs of both the plastic bags in the duffel bag and those with methamphetamine residue found in the kitchen trash container were put in evidence. Also, photographs were admitted of a spatula found with the mеthamphetamine in the kitchen cabinet and the one found in the duffel bag. Deputy Penrod testified spatulas such as these are used to stir methamphetamine and “cut it into lines.”
Sullivan testified that in recent times methamphetamine makers avoid keeping anhydrous ammonia around before or after actual manufacture for fear a leak might occur and the resultant odor will draw unwanted attention. He also noted that methamphetamine making is now frequently done in stages, and once a stage is completed, some chemicals are wholly consumed or the maker gets rid of what is nоt needed.
Although the items found in the duffel bag had valid uses and were legal to possess, we are persuaded that a sufficient basis was proven by the State for concluding that Defendant took a substantial step toward the manufacture of methamphetamine. This is found in the following: Defendant’s possession of the duffel bag
In so deciding, we do not ignore Defendant’s observation that the jury instruction required it to find Defendant attempted to make methamphetamine “by
processing and preparing
chemicals and lab paraphernalia.” (Emphasis supplied.) In structuring his argument, Defendant seems to imply — -but nevеr develops such argument — that even if it was proven he knowingly possessed the bag’s content and his possession was a substantial step toward manufacture, his conviction should be reversed because there was no evidence he “processed and prepared” the items in the bag. Because he cites no authority for such an argument and never develops it, we consider it abandoned.
9
See Mitchell,
Point IV: Unpreserved Claim Of Double Jeopardy
Defendant’s fourth point relied on attempts to raise a double jeopardy claim. He contends the trial court “plainly erred” when it sentenced him for the Count III offense of possessing precursor ingredients of methamphetamine with the intent to manufacture a controlled substance; that Defendant could not be convicted of both Count I (attempting to manufacture methamphetamine by compounding, processing and preparing chemicals and lab paraphernalia for the purpose of manufacturing methamphetamine) and Count III (possessing chemicals proven to be precursor ingredients of methamphetamine with the intent to manufacture a controlled substance), because Defendant could not proсess, prepare, and collect chemicals without also possessing them. With his point relied on thus structured, Defendant argues that possessing precursor ingredients is a lesser-included offense of attempting to manufacture methamphetamine.
In his brief, Defendant concedes he did not assert the double jeopardy claim he states in Point IV at the trial level. We addressed this circumstance in
State v. Gaver,
“ ‘[I]t is well-settled that double jeopardy is a personal right which, if not properly raised is waived. State v. Miner,748 S.W.2d 692 , 693 (Mo.App. E.D.1988). As appellant was remiss in raising his double jeopardy claim at trial and in post-trial motions, we find appellant has waived this right.’ ”
Id.
at 279[7],
quoting State v. Baker,
Point V: Exclusion Of Graviett’s Letter From Evidence
Defendant’s fifth point maintains the trial court committed reversible error when it ruled Defendant could not put Graviett’s letter in evidence. Defendant requests we review this point under the plain error standard of Rule 80.20 in an apparent recognition that this claim of trial court error was unpreserved because he failed to show the materiality and relevance of the letter by way of an offer of proof.
See State v. Hemby,
We explained under Point I that everything in the letter was put before the jury via Graviett’s testimony, as was the fact that Graviett told Davis “the first time [they] met” of his involvement and Defendant’s non-involvement in this crime; consequently, the letter was merely cumulative evidence. Again, a court does not plainly err, when for any reason, it excludes merely cumulative evidence.
Nicklasson,
The judgment of conviction and sentence are affirmed.
Notes
. All statutory references are to RSMo (2000), unless otherwise stated.
. It is reasonably inferable that Davis did not disclose the letter because at Graviett’s guilty plea hearing he made essentially the same claims as he made in the letter, i.e., that he knew what was inside the duffel bag and knew thе intended purpose for its contents. Consequently, Davis would have had no idea Graviett would "backtrack” on cross-examination, thus making the letter relevant.
. To the extent Defendant’s Point I argument charges ineffective assistance of counsel and cites cases dealing with ineffective assistance claims, it is not cognizable in this direct appeal, but must be asserted via post-conviction motion.
State v. Motley,
. Although the "first time I met you” testimony was objected to by the State and the objection was sustained, the objection and ruling came after Graviett had given his answer. The State did not аsk the court to strike the answer or instruct the jury to disregard it, and the court did not do so
sua sponte;
consequently, this evidence was still available for the jury to consider.
See State v. Hirt,
. In pertinent part, § 195.420 provides: "It is unlawful for any person to possess chemicals listed in subsection 2 of section 195.400 ... with the intent to ... convert ... that chemical to create a controlled substance ... in violation of sections 195.005 to 195.425.”
. In Count III, the State charged Defendant with possessing "chemicals proven to be precursor ingredients of methamphetamine with the intent to manufacture a controlled substance ... in that ... the defendаnt possessed
. Evidence that Defendant was on a small shed roof when officers arrived, he moved furtively when told to come down, he tried briefly to avoid being seen by Sullivan, and as soon as Sullivan got on the roof he saw the methamphetamine "right there in the open,” supports a finding that Defendant had methamphetamine within his easy reach and convenient control while on the roof. That the shed roof was small and the methamphetamine found would have been in easy reach and convenient control of Defendant is cоnfirmed by photographic exhibits. Apparently, Defendant concedes as much since he did not appeal his conviction for possession of methamphetamine.
. In passing, we note that the words “process" and "prepare" are not statutorily defined terms. The dictionary definition of prepare is, inter alia, to "procure as suitable or necessary.” Webster's Third New International Dictionary (1976) at 1790. Based on evidence recounted from this record, the jury could have reasonably inferred Defendant "procured” the things in the bag as “suitable or necessary items” in his attempt to manufacture methamphetamine.