Man receives acquittal on drug charges

A Doe Run man was recently granted an acquittal by the Missouri Court of Appeals Eastern District after a jury verdict found him guilty of possessing methamphetamine.

James R. Drabek, 57, challenged the sufficiency of the evidence to support his conviction with the Missouri Court of Appeals, claiming the state failed to provide sufficient evidence proving that he knowingly possessed methamphetamine.

According to court documents, Drabek was arrested after a search of the rented mobile home where he lived alone. He lived there for approximately eight years and rarely had visitors.

There were five mobile homes on the property and all but one were occupied at the time of Drabek’s arrest. On or about May 9, 2012, four officers with the Mineral Area Drug Task Force went to Drabek’s home without a warrant to investigate an anonymous tip that an individual was manufacturing methamphetamine in a mobile home.

One of the troopers reported that when he approached the home he could hear footsteps and people running around inside. The trooper also saw the doorknob move, as if someone was trying to lock it.

The report said the trooper announced himself, but no one answered the door and he could continue to hear people moving around. The trooper knocked several more times and Drabek finally answered the door.

The court documents indicate that Drabek gave the officer permission, verbally and in writing, to search his home because, he said, he had nothing to hide. The officers took Drabek and three other people outside of the home during the search.

Drabek remained outside the entire time, only going back in to answer questions when officers requested him. In his report, the trooper described Drabek as cooperative.

Officers seized a number of items from inside and outside of the home.

The reporting trooper explained during Drabek’s trial that all the items seized could be used in consumption and manufacturing of methamphetamine. Items seized inside the home included a roll of aluminum foil, folded aluminum foil, a deconstructed grinder with residue that tested positive for pseudoephedrine, cold packs, hydrogen peroxide, drain cleaner and a propane torch.

Items found outside in a communal burn pile located behind Drabek’s home included seven punched ether cans, lithium strips, battery hulls and packaging for aquarium tubing. Officers also seized a can of Coleman fuel and a can of ether from a small metal shed to the side of the mobile home.

Officers also found a purse on the front porch which contained an ID for a woman who wasn’t present at the time, along with syringes, a spoon and a cloth strip. In addition to the items found on the property, officers discovered that Drabek had purchased pseudoephedrine 18 times in the previous year at more than one location.

The report also stated that while officers searched the back porch of Drabek’s home they found a small box containing two glass smoking pipes, three straws, two spoons and two small plastic bags with residue inside. Later testing showed the residue to be 0.30 grams of methamphetamine.

Officers seized a quart can of acetone and a gallon bottle of muriatic acid from the back porch. During court proceedings the trooper could not recall exactly, but thought it was possible the acetone was found with paint and paint brushes that were on the porch.

The court documents indicate the state provided no evidence describing the porch. Drabek described the porch as a partial room and that was pretty much enclosed, but it was just roughed in with nothing finished on the inside or outside.

According to Drabek, the porch was in the same condition at the time of the search as it was when he began living there eight years prior. He explained that various items were already on the porch when he moved in and had remained there throughout the entire time he had lived in the home. Those items included the acetone and muriatic acid, which he said he never used.

Drabek also explained that other cans of solvent, paint rollers, brushes and other items were also on the porch when he moved into the home. Drabek testified in court that he had not cleaned off the porch and that he didn’t have time to do anything with the porch. He also testified that he had never seen the small box or its contents.

The state charged Drabek with a seven count indictment – one count of possession of methamphetamine, one count of manufacturing methamphetamine, four counts of possessing a chemical with the intent to manufacture methamphetamine and one count of possessing a methamphetamine precursor with the intent to manufacture methamphetamine.

The court documents said the state provided scant or barely sufficient evidence regarding the box that contained the methamphetamine residue and instead the state provided testimony and evidence about the manufacturing charges.

Court documents said the trooper did testify that the box containing the pipes, straws, spoons and plastic bags with residue was found on the back porch, and the criminalist from the state crime lab did testify that the residue inside the box was methamphetamine but could not tell how long the substance had been in the box.

The report said that although officers reportedly photographed each of the seized items in the location in which they were found, none of those photographs were available during the trial. It was noted that the officer could not recover anything from computer that photographs were saved on due to problems with the hard drive. Also they could not locate the removable drive that contained the pictures.

Court records indicated that in the closing argument the state discussed the box and its contents two separate times.

In a rebuttal argument, after the defense counsel argued that no evidence existed showing that Drabek knew that methamphetamine was in the box, the state pondered that he lived there for years and didn’t know there was a box on his back porch containing meth.

The jury found Drabek guilty of possessing methamphetamine but acquitted him on all other counts. The trial court denied Drabek’s post-trial motions and sentenced him to six years in prison.

Drabek appealed the charge, claiming the state failed to provide sufficient evidence that he knowingly possessed methamphetamine.

The court concluded the state presented insufficient evidence to prove that Drabek had knowledge of the presence of the charged methamphetamine. The court also recognized that, absent a confession, knowledge is often not susceptible of direct proof and that both possession and knowledge may be proved circumstantial evidence, but a criminal conviction cannot be based upon probabilities and speculation.

The court documents said officers did not find the methamphetamine on Drabek … they found it enclosed in a baggie in a small box on the back porch of Drabek’s home. Officers did not find methamphetamine in Drabek’s immediate vicinity … Drabek was inside the home when officers arrived and was never seen on the back porch. Drabek remained outside the home during the officers’ search of the home and surrounding area … so he did not have actual possession of the methamphetamine.

In narcotics or controlled-substance cases the law has developed a policy that a person in exclusive control of a premises will be deemed to have possession and control of any substance found on the premises.

The appeal proceedings cited the state failed to provide sufficient evidence that Drabek had exclusive possession of the premises. Drabek may have been the sole occupant of his home, but he was not the only person with access to, and control over, the porch.

The state’s theory might have had merit if the methamphetamine was inside the home, but not on the unsecured porch.

According to the court documents, in the end, the state proved that officers found methamphetamine in a plastic bag in a small box that was somewhere on the back porch of Drabek’s mobile home. However, the state provided no direct evidence of Drabek’s knowledge of the presence of the methamphetamine on his porch.

The court agreed with his contention and reversed his conviction on May 15.

The double-jeopardy clause of the United States Constitution precludes a second trial after a reversal based solely on the insufficiency of evidence, so the appeals court remanded and directed the trial court to enter a judgement of acquittal.

James R. Drabek

Renee Bronaugh is a reporter for the Daily Journal and can be reached at 573-518-3617 or rbronaugh@dailyjournalonline.com