PRESQUE ISLE, Maine — The state’s highest court has refused to overturn the conviction of a 34-year-old Sanford man who was sentenced last year to serve nine years in prison for trafficking in methamphetamine.
Attorney Hunter Tzovarras of Bangor argued his client Michael O. Fox’s appeal last October when the Maine Supreme Judicial Court justices visited Presque Isle High School in Aroostook County as part of its annual road trip to high schools.
Tzovarras argued that the state’s evidence was insufficient to support a conviction because there was no proof he possessed all of the ingredients necessary to manufacture methamphetamine.
The case against Fox began as he was traveling north on U.S. Route 1 in Bridgewater on Nov. 22, 2011. Chief Deputy Craig Clossey of the Aroostook County Sheriff’s Department intervened when he saw Fox assaulting a woman in a car on the side of the road, according to court records. Fox was arrested on an outstanding warrant and also charged with domestic violence assault.
During the stop, Clossey discovered several items in the vehicle that are used to manufacture methamphetamines, including tubing, drain cleaner and acetone, according to court documents. He contacted the Maine Drug Enforcement Agency for assistance and agents agreed the items likely had been used to make the drug. Agents confronted Fox at the Aroostook County Jail, but he said he was not involved in such activity.
Supervisory Special Agent Shawn Gillen investigated further and acquired recordings of phone calls that Fox placed to his wife from the jail, according to court documents. In the recordings, Fox expressed fear that agents would search a shed at his mother’s home and at one point specifically mentioned “meth.”
Agents subsequently went to Fox’s mother’s home in Presque Isle and asked permission to look in the shed. Agents found sodium hydroxide, starter fluid, two funnels, acetone, sulfuric acid, a green glass jug and more, which Gillen indicated in his report were items commonly used in the “one pot” method of manufacturing methamphetamine. Testing showed that methamphetamine residue was present on the blue funnel and some of the tubing found in the shed, according to court documents.
Recordings from the jail also revealed that when Fox’s wife told him that the MDEA had searched his mother’s shed and found some items, he cursed and “was otherwise unable to speak intelligibly for nearly a minute after he received this news,” according to court documents.
Fox was convicted of aggravated trafficking in scheduled drugs and violation of conditions of release in June 2013 in Aroostook County Superior Court. He was sentenced to 14 years in prison with all but nine years suspended.
But in arguing the conviction on appeal, Tzovarras told the Law Court in October that the evidence showed Fox never had all the ingredients to manufacture methamphetamine and no methamphetamine was found in his possession. He also argued that the trial court gave the jury an incorrect definition of “manufacture” under the drug trafficking statute.
Aroostook County Assistant District Attorney Kurt Kafferlin of Houlton countered that the state had proper lab analysis to link the confiscated items to methamphetamine manufacturing, as well as statements from witnesses who had purchased pseudoephedrine for Fox to use in the manufacturing process.
Writing for the ruling for the justices who were unanimous in their decision which was released this week, Justice Warren Silver indicated that the Law Court had recently “decided two cases addressing the proof necessary to support a conviction for manufacturing methamphetamine. First, we concluded that circumstantial evidence of the successful completion of the manufacturing process is sufficient to support a conviction, even where not all of the necessary materials are found in the defendant’s possession.”
He outlined those two cases, while adding that the “the proof is stronger” in Fox’s case.
“Most importantly, actual methamphetamine residue was found on a piece of tubing and a funnel in Fox’s mother’s shed. Considered together with the expert testimony concerning how tubing and funnels are typically used in the manufacturing process, this evidence would allow the jury to find that the manufacturing process had been successfully completed,” Silver wrote.
“In short, there was evidence that Fox intended to create methamphetamine, that he had access to many of the materials necessary to make methamphetamine, and that he had, in fact, created methamphetamine, which was found on some of those items,” the justice wrote. “This is more than enough evidence to support a finding that Fox successfully manufactured methamphetamine.”