STATE OF MISSOURI v. GLEN EUGENE BROWN

STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD34124
)
GLEN EUGENE BROWN, ) FILED: July 19, 2016
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
Honorable Robert N. Mayer, Judge
AFFIRMED
Glen Brown raises two points in appealing his bench-tried conviction for
attempting to manufacture methamphetamine. 1
Point I – Search and Seizure
Facts central to this point are few and easily summarized. Officers went to
Brown’s trailer with a warrant to arrest him for methamphetamine possession. Brown
answered the door and let the officers inside where they encountered thick, odorless,
1 He does not challenge two other convictions and identical concurrent sentences,
from the same trial, for possessing methamphetamine.
chemical smoke consistent with an operating meth lab. They arrested Brown, took
him outside, and Mirandized him. Brown admitted that a meth lab was active in his
bedroom, but refused to give consent for the officers to search.
One officer left for a search warrant. In the meantime, Deputy Haynes arrived.
As a narcotics investigator who had investigated hundreds of meth labs, Haynes
recognized the smoke as being from a meth lab and took action because, as he later
testified, meth labs are volatile and “need to be gotten out of anywhere they could
catch fire.” Haynes opened the trailer doors, used a fan to ventilate the trailer of
dangerous chemical fog, 2 then went in and removed the meth lab which was still
smoking. Haynes already had the meth lab when the search warrant arrived.
Brown does not dispute that active meth labs present dangers and exigencies
justifying warrantless residential searches. 3 Rather, he argues that ventilating the
trailer ended the risk of explosion “such that any exigency that had existed terminated
and it was unlawful to then search the trailer without a warrant …,” so the court erred
in not suppressing that evidence and Brown’s subsequent inculpatory statements.
We view the record most favorably to the trial court’s refusal to suppress. State
v. Johnson, 354 S.W.3d 627, 631-32 (Mo. banc 2011). We must credit Haynes’
2 One officer exposed to this chemical fog required emergency room treatment.
3 “The potential hazards of methamphetamine manufacture are well documented, and
numerous cases have upheld limited warrantless searches by police officers who had
probable cause to believe they had uncovered an on-going methamphetamine
manufacturing operation.” U.S. v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002).
“Jurisdictions that have tackled the issue have held that the dangers posed by an
operating methamphetamine lab are sufficient to constitute an exigent circumstance
for purposes of conducting a warrantless search of a residence.” Williams v. State,
995 So. 2d 915, 920 (Ala. Crim. App. 2008).
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testimony that, and why, the smoking meth lab posed danger even after the trailer was
ventilated. 4 Thus Point I fails and we need not consider inevitable discovery, based on
the search warrant that arrived, as a basis to uphold the trial court’s ruling.
Point II – Insufficient Evidence of Manufacturing
Brown resourcefully and somewhat circularly complains that the State failed to
prove “the offense of manufacturing a controlled substance … in that [he] was charged
with attempting to manufacture a controlled substance and the evidence did not prove
beyond a reasonable doubt that [he] actually manufactured a controlled substance
rather than he attempted to manufacture a controlled substance ….” Some
background is in order.
Count II charged Brown with the Class B felony of attempting to manufacture
methamphetamine, and “attempt” is what the prosecutor asserted in opening
statement, during trial, and in closing argument. The court’s final judgment found
Brown guilty of the Class B felony charged in Count II, i.e., an attempt offense. Even
Brown, in his notice of appeal, agreed that he had been convicted for “attempt to
manufacture ….”
Yet Brown now cites the judge’s trial-end misstatement (24 days before
sentencing and final judgment) finding Brown “guilty of the manufacture and
production of a controlled substance …, the Class B felony.” 5 So Brown now argues, to
4 Indeed, “cases have recognized that [meth lab] dangers may continue for some
hours.” U.S. v. Lloyd, 396 F.3d 948, 955 (8th Cir. 2005).
5 The same misstatement Brown’s own attorney later made at the sentencing hearing
(our emphasis):
As far as the admitting the manufacture of controlled substance, we
made no bones about it during the bench trial. We were not contesting
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quote his brief, that the State failed to prove that he “committed the actual
manufacture of a controlled substance, but that is in fact what the court found [him]
guilty of committing”; that the murky liquid recovered from the meth lab pot “was
consistent with steps toward making methamphetamine, but was not actually
methamphetamine”; and that we should reverse his Count II conviction and order him
discharged.
No remotely similar case is cited by the parties or found by us. We credit
Brown’s belated ingenuity, but deny his point for several reasons.
First, the premise is incorrect. Despite what the court said during the trial, it
adjudicated Brown guilty of the Count II attempt charge for which Brown does not
dispute the sufficiency of proof.
Also, to find Brown guilty of manufacturing, the court necessarily had to find
him guilty of the lesser-included attempt. See Spells v. State, 277 S.W.3d 343, 351
(Mo.App. 2009)(attempt to manufacture meth is a lesser-included offense of
manufacturing meth). Here, an attempt carries the same punishment range as the
guilt. The issue we had was Mr. Brown would like the Appellate Court
to look at the situation regarding the search.
While the State submitted some case law regarding the search, I think
there was enough of an issue for Mr. Brown to possibly ask the
Appellate Court to look at that. So we certainly respect the ruling by the
Court here on that issue but it’s something Mr. Brown would like a
second look at.
He’s been -- so we were quite compliant with everyone on that bench
trial. He wasn’t doing that just to stir trouble and just to try to make the
State go through the steps. I wish this were similar to Federal Court
where we could plead guilty and reserve our right to appeal.
Unfortunately, we could not.
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completed crime (id.), supports the court’s final judgment, and is supported by the
trial evidence.
Finally, we discern no prejudice from the court’s prior misstatement given its
correct final judgment. We are not faced with an orally-rendered judgment differing
from the written version, in which case the judicial act of rendering judgment would
control over the ministerial act of entering it upon the record. Massey v. State, 608
S.W.2d 152, 153 (Mo.App. 1980). A finding of guilt is not a “judicial act” in the same
sense as a judgment; guilt findings can be and often are made by lay jurors. 6 Even if
we ignore that distinction, we fail to see why a court cannot correct error via judicial
act (final judgment) while it still has jurisdiction of a case.
We deny Point II and affirm the judgment of conviction.
DANIEL E. SCOTT, J. – OPINION AUTHOR
GARY W. LYNCH, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
6 See State v. Wilson, 26 S.W. 357, 359-60 (Mo. 1894)(making a verdict is not a
judicial act); Phelps v. Parker, 534 S.W.2d 278, 279 (Mo.App. 1976)(noting “clear
distinction between a verdict and a judgment”; only the latter “is a judicial action of
the court”); Kansas City Pump Co. v. Jones, 104 S.W. 1136, 1137 (Mo.App.
1907)(a judgment is the court’s judicial act in pronouncing the sentence of the law
upon facts as determined by pleadings and verdict); City of Aurora v. Powell, 383
P.2d 798, 800 (Colo. 1963)(distinguishing judgment, as a judicial act, from jury
verdicts or findings of a court).
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