This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Alan Lee Brockway,



Filed June 24, 2003


Parker, Judge*


Scott County District Court

File No. 2000-11527



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN  55379  (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414  (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Alan Lee Brockway argues there was insufficient evidence to support his conviction for attempted first-degree controlled-substance crime.  Appellant also argues the prosecutor committed prejudicial misconduct in closing argument, thereby violating appellant’s right to a fair trial.  Because we find sufficient evidence to support appellant’s conviction, and appellant was not denied his right to a fair trial, we affirm.


            On June 8, 2000, Jeffrey Swedin of the Southwest Metro Drug Task Force directed patrol officer Cory Skorczewski to stop appellant Brockway’s automobile.  Swedin had information that appellant was driving despite a cancelled driver’s license.  Skorczewski stopped appellant’s vehicle and identified him.  Brockway admitted he did not have a license, and Skorczewski confirmed through his computer that appellant’s license had been cancelled as inimical to public safety.  Skorczewski then arrested him.

            Incident to appellant’s arrest, Skorczewski searched his vehicle.  Located in appellant’s van were:  a jug of water, blister packs containing pseudoephedrine, marijuana paraphernalia, a canister of pseudoephedrine containing 48 tablets, an empty bottle of pseudoephedrine, two black tubes, one white tube, seven 16-ounce cans of gun scrubber cleaner, two 32-ounce cans of carbol cleaning, and degreasing solvent.  The cans of gun scrubber were empty because the bottom of the cans had been opened.  Skorczewski testified that in his opinion, the bottle of water, tubing, and solvent can be used in the production of methamphetamine; the blister packs and containers of pseudoephedrine contain the main ingredient for producing methamphetamine; and the marijuana paraphernalia can be used to smoke methamphetamine and other drugs.

            Later that evening, Swedin executed a search warrant for appellant’s home.  Inside the house, officers found numerous items associated with the illegal manufacture of methamphetamine, including: coffee filters, paper funnels, matchbook strike plates, glassware, rock and table salt, jars containing unidentified chemical liquids, camping fuel, carbosol degreaser, two empty cans of gun scrubber, Isoheat, a one-gallon container with “Iodine” written on it, paint remover, muriatic acid, acetone, Red Devil Lye, and a propane tank.  In appellant’s bedroom, officers found two white, powdery substances, drug paraphernalia, matchbooks with missing plates, and a gram scale.  In the kitchen, two containers of Psuedo Plus, five empty Sudafed blister packs, and a gram scale were found.  In addition, matchbooks with missing strike plates were discovered in the living room.  Because of their hazardous nature, some of the items associated with the manufacture of illegal methamphetamine were photographed by the officers rather than taken into their custody.

            The state charged Brockway with manufacturing methamphetamine, fifth-degree possession, and driving after cancellation.  At trial, Drug Enforcement Administration Special Agent Paul Nack testified as an expert on clandestine drug laboratories and the manufacture of methamphetamine.  Specifically, Nack described to the jury how the “cold process” of methamphetamine worked.  Nack testified with great detail how methamphetamine is manufactured and the equipment that is necessary to manufacture it.  Nack concluded that the items found in appellant’s basement were consistent with the manufacture of methamphetamine.  However, Nack also testified that he found no waste product associated with the manufacturing process.

            Steven Banning, a forensic scientist with the Bureau of Criminal Apprehension, tested some of the items removed from appellant’s home.  Banning testified that liquid samples removed from the basement contained no controlled substances.  Banning also analyzed two samples of white powder found in appellant’s bedroom.  One sample consisted of .4 grams of methamphetamine, and the other was 3.6 grams of pseudoephedrine.

            At the close of the state’s case, the court permitted the state to amend its complaint to add the charge of attempted manufacture of methamphetamine.  The jury convicted Brockway of attempted manufacture, driving after cancellation, and fifth-degree possession, but acquitted him on the manufacturing of methamphetamine charge.  Brockway appeals only the conviction of attempted manufacture of methamphetamine.


I.          Sufficiency of evidence

            Appellant argues there was insufficient evidence to convict him of attempted controlled-substance crime in the first degree.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Minnesota law states that: “[A] person is guilty of a controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.”  Minn. Stat. § 152.021, subd. 2a (2000).  A criminal attempt occurs when a person, with intent to commit a crime, performs an act that is a substantial step toward, and more than preparation for, the commission of a crime.  Minn. Stat. § 609.17, subd. 1 (2000).  Thus, the elements of the crime of attempt are:  (1) an intent to commit a crime, and (2) a substantial step taken toward the crime’s commission.  State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).

            Appellant argues that the second element was not satisfied because the evidence was insufficient to prove that he took a substantial step beyond mere preparation towards the manufacture of the controlled substance.  However, the items discovered in appellant’s possession suggest his conduct went well beyond mere preparation.  An analogy can be made in this case to a person shopping for groceries to cook a certain meal.  When a person intends to cook a certain meal, the necessary ingredients are generally purchased at the store.  This is mere preparation.  The person intends to cook the meal and has gathered the necessary supplies, but the person has not actually attempted to cook it.  Thus, a substantial step in furtherance of preparing the meal has not been taken.

            Much like the person shopping for groceries, appellant possessed all the materials and equipment necessary for the manufacture of methamphetamine.  However, officers also found empty cans of gun scrubber opened at the bottom end, numerous matchbook covers with the strike plates missing, empty plastic pseudo-plus tablet containers, empty Sudafed blister packs, a cardboard box containing numerous strike plates, a gram scale with a strike plate on it, and a pot with rock salt in it.  The significant difference between our grocery shopper and appellant is that many of the containers holding the necessary chemicals found in appellant’s possession were empty.  In addition, the odd combination of chemicals discovered in appellant’s possession lend ample support to the allegations.  Furthermore, officers discovered the finished product, methamphetamine, in appellant’s bedroom.  The odd combination of chemicals, the empty containers, and the methamphetamine is evidence beyond the mere possession of the items used to produce methamphetamine, and that appellant took at least a substantial step towards the manufacture of methamphetamine.  Based upon the foregoing, we find there was sufficient evidence for a jury to convict appellant of attempted controlled-substance crime in the first degree.

II.        Prosecutorial misconduct

            Appellant also contends that the prosecutor committed prejudicial misconduct during his closing argument, thereby violating his right to a fair trial.  A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted).

            The test for determining whether prosecutorial misconduct was harmless depends partly on the type of misconduct.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  For serious prosecutorial misconduct, “the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.”  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id.  With respect to claims of prosecutorial misconduct arising out of closing argument, we consider the argument as a whole.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

            Appellant argues the prosecutor abused his unique role as a minister of justice by initiating an attack on appellant’s character without any facts to support the argument.  During closing arguments, the prosecutor argued that appellant did not need a recipe to manufacture methamphetamine because he had produced it before and knew the recipe.  The prosecutor stated that the manufacture of methamphetamine was appellant’s “vocation” and his “way of life,” and that appellant was addicted to the drug.  However, this argument is not supported by evidence in the record.

A prosecutor should not base an argument on facts not in evidence.  State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979).  Although counsel for appellant repeatedly objected to the prosecutor’s arguments, the district court allowed the prosecutor a great deal of latitude to discuss the case.  We hold that the prosecutor’s statements constitute serious misconduct.  A prosecutor may draw inferences from the facts in evidence, but the inferences must be reasonable.  State v. Rose, 353 N.W.2d 565, 569 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).  Here, the prosecutor blatantly stated that appellant is addicted to methamphetamine and that he knows how to manufacture the drug without a recipe.  The prosecutor continued along this line after the district court sustained an objection and issued a caution.  This is serious misconduct and we are troubled by these remarks.

The prosecutor also improperly shifted the burden of proof during closing arguments.  The prosecutor began to say: “the process is not one-sided.”  Before the prosecutor could say another word, defense counsel objected, and the district court promptly instructed the jury that appellant had nothing to prove.  Shortly thereafter, the prosecutor made the statement to the jury that the police were “entitled to their day in court too.”  This is a gross misstatement of the law.  The police are not “entitled to their day in court”; they are not parties to the lawsuit.  This is an improper appeal to the natural respect that jurors might hold for police officers.

The standard for serious prosecutorial misconduct is whether the misconduct is harmless beyond a reasonable doubt so that the verdict rendered was surely unattributable to the error.  Hunt, 615 N.W.2d at 302.  Although we find the prosecutor’s statements disturbing, we decline to find that appellant was denied a fair trial.  Appellant was acquitted on the charge of manufacture of methamphetamine, indicating that the jury was not unduly influenced by the prosecutor’s statements.  There was abundant evidence to support, beyond a reasonable doubt, appellant’s conviction for the remaining attempt charge.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.