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State v. Fox

Supreme Judicial Court of Maine

December 9, 2014

STATE OF MAINE
v.
MICHAEL O. FOX

Argued: October 28, 2014.

Judgment affirmed.

On the briefs: Hunter J. Tzovarras, Esq., Bangor, for appellant Michael O. Fox.

Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty., 8th Prosecutorial District, Houlton, for appellee State of Maine.

At oral argument: Hunter J. Tzovarras, Esq., for appellant Michael O. Fox.

Kurt A. Kafferlin, Asst. Dist. Atty., for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.

OPINION

Page 1030

SILVER, J.

[¶1] Michael O. Fox appeals from his conviction (Aroostook County, Cuddy, J.) of several crimes, including one count of aggravated trafficking in scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) (2013).[1] Fox argues that (1) the evidence

Page 1031

is insufficient to support his conviction; (2) the trial court committed obvious error when it instructed the jury that it did not have to find that the manufacturing process had been completed in order to convict Fox of the trafficking offense; and (3) the State failed to prove all of the elements of aggravated trafficking because, although the parties signed a stipulation as to Fox's prior conviction for a similar offense, the stipulation was not entered in evidence. We affirm the judgment.

I. BACKGROUND

[¶2] In November 2011, an officer with the Aroostook County Sheriff's Department observed Fox and his wife engaged in a physical altercation in their parked car. The couple was on their way home to southern Maine after visiting family in Aroostook County. Fox was arrested on an outstanding warrant, and the officer searched the car. In the backseat, the officer discovered a bag containing several items, including plastic tubing, a can of acetone, and drain cleaner. These items aroused the officer's suspicions, so he contacted the Maine Drug Enforcement Agency (MDEA) and turned the items over to an MDEA special agent.

[¶3] Recognizing the items found in Fox's car as items typically used to manufacture methamphetamine, the MDEA agent went to the Aroostook County Jail to interview Fox. Fox explained that he had used the acetone to finish a guitar, that he used the gas-line antifreeze for his car's engine because it had a bad spark plug, and that he had used the drain cleaner to unclog a drain at his mother's house.

[¶4] The MDEA agent obtained recordings of phone calls Fox made from the jail to his wife. On the recording of the first phone call, Fox's wife could be heard advising Fox that the MDEA had questioned her and located the items in the car. In a second phone call, Fox asked his wife something to the effect of, " Did you get rid of that [stuff] that was out in the shed?" He told her he was worried that the MDEA would go to his mother's house. Fox also told his wife that a confidential informant had told MDEA agents that Fox had manufactured methamphetamine with a person named Larry Easler, and that he believed that another friend of his was the " rat."

[¶5] After hearing these recordings, the MDEA agent went to Fox's mother's house and saw a shed behind the house. Fox's mother allowed the agent to search the shed. The agent found several more items typically used to manufacture methamphetamine, including a glass jug, sodium hydroxide (a crystal drain cleaner), a can of starter fluid, a makeshift funnel, duct tape, and a hand pump. Several of the items were tested for the presence of scheduled drugs. A piece of tubing with duct tape and a blue funnel both tested positive for methamphetamine residue. In ...


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