Opinion
No. WD 56473
Filed: June 27, 2000
Appeal from the Circuit Court of Adair County, Missouri, the Honorable Russell E. Steele, Judge
Michael A. Gross, counsel for appellant.
Breck K. Burgess, counsel for respondent.
Before Smith, P.J., and Howard and Holliger, JJ.
Bryan E. Wurtzberger appeals the judgment of his jury conviction in the Circuit Court of Adair County of an attempt to manufacture a controlled substance, methamphetamine, in violation of § 195.211. As a result of his conviction, he was sentenced to twelve years in the Missouri Department of Corrections.
All statutory references are to RSMo 1994, unless otherwise indicated.
The appellant raises two points on appeal. In Point I, he claims that the trial court plainly erred in failing to direct, sua sponte, a verdict of acquittal at the close of the State's evidence and all the evidence or enter, sua sponte, a judgment of acquittal notwithstanding the verdict (JNOV) because there was insufficient evidence to support his conviction in that the record is void of any evidence from which the jury could have found a requisite element of the crime for which he was convicted, that he did an act or acts which constituted a substantial step towards the commission of the offense of the manufacture of methamphetamine. In Point II, he claims that the trial court plainly erred in giving the State's verdict directing instruction because it deprived him of due process in that it did not require the jury to find a requisite element of the crime charged, that he did an act which was a substantial step towards the manufacture of methamphetamine, and did not define "substantial step," as required by MAI-CR 3d 304.06 (July 1, 1997).
We reverse and remand.
Facts
On March 31, 1997, an unidentified employee at Canton Auto Supply in Canton, Missouri, called Officer Mike Baker of the LaGrange, Missouri, Police Department. The employee told him that a white male had just purchased a case of large cans of starter fluid, dimethyl ether, which is commonly used in the manufacturing of methamphetamine. While the employee did not know the name of the person who had purchased the starter fluid, the employee had written down his license plate number, which was given to Officer Baker. He later learned that the license plate number belonged to the appellant.
In April 1997, the appellant was living in a mobile home owned by his father, David Wurtzberger, and located on his father's property in LaBelle, Lewis County, Missouri. He was the sole tenant. At that time, the appellant was under house arrest and required to wear an electronic monitoring device, which prevented him from leaving his residence, except for a short period of time each week.
The record on appeal does not reflect the exact circumstances or conditions of the appellant's house arrest.
Sometime prior to April 1, 1997, the appellant contacted Bruce Hoffman, who had previously done construction, dirt, electric, and plumbing work for the appellant's father. However, he had never done work for the appellant. The appellant asked Hoffman how he could get electricity from his mobile home to a machine shed located approximately forty to forty-five feet away. Hoffman advised him that he could plug an extension cord into an outlet at his home and run the cord to a fuse box in the shed. On April 1, 1997, Hoffman informed Officer Gary Grubb, the Chief of Police in LaBelle, Missouri, of his conversation with the appellant. On April 7, 1997, Officer Grubb drove past the appellant's home and observed a "heavy large black cord coming off the front of the mobile home and running into . . . the north side of the shed."
On April 9, 1997, the prosecuting attorney for Lewis County, Missouri, applied for a search warrant in the Circuit Court of Lewis County to search for methamphetamine and materials and equipment used to manufacture it in outbuildings located near the appellant's residence. On April 9, the Honorable Fred L. Westhoff issued the search warrant requested. The warrant authorized a search for "methamphetamines or materials and equipment used to manufacture methamphetamines."
On the evening of April 9, 1997, Officer Baker, Officer Brad Curless of the LaGrange Police Department, and Officers Doug Rader and Mark Bouyea of the Northeast Missouri Narcotics Task Force drove past the appellant's home, which was situated approximately fifty feet from the road. As they drove past, they smelled an odor of what they believed to be ether or a solvent ammonia coming from the immediate area of the appellant's residence and the shed, but could not distinguish whether the odor was coming from the residence, the shed, or both. The search warrant was executed on April 10, 1997. Several law enforcement officers participated in the execution of the warrant, including Officer Rader, and Troopers Ernie Schroeder and Lenny Reed of the Missouri State Highway Patrol.
Upon arrival at the appellant's residence, Officer Rader, Trooper Schroeder, and Trooper Reed proceeded to the machine shed, while other officers secured the appellant's residence. The officers found the shed chained and padlocked. They used a cutting tool to cut the chain and open the door. Upon gaining entry to the shed, they detected a strong smell of a solvent and ammonia, requiring them to ventilate it before entering. They also observed an extension cord running from the appellant's home to the shed and an electric light in the shed.
Once inside the shed, the officers discovered and seized the following items commonly used in the manufacturing of methamphetamine: an electric hot plate; a red gas can "with tubing and hoses coming out of it" with "an electric aquarium air pump hooked onto it"; a turkey baster; a container of rock salt; a "glass jar containing a liquid with solvent inside the liquid"; a "glass jar containing a white powder"; a used coffee filter "with white powder"; a measuring cup "with some white residue"; a "plastic cup with a cup inside of it with white powder residue"; several lithium batteries; a gas jug containing anhydrous ammonia; a small piece of the casing of a lithium battery; three bottles of sulfuric acid; and a pair of heavy-duty rubber gloves. The officers did not recover any ephedrine, an ingredient necessary for the manufacturing of methamphetamine, from the shed. While conducting a warrantless search of the appellant's residence, several items also commonly used in the manufacturing of methamphetamine were seized.
On April 10, 1997, the appellant was charged in the associate division of the Circuit Court of Lewis County with one count each of an attempt to manufacture a controlled substance, § 195.211, and possession of a controlled substance, § 195.202. On August 20, 1997, he filed in the associate division a motion to quash the search warrant and to suppress evidence. The record does not reflect whether this motion was ever ruled upon. It also does not reflect whether a preliminary hearing was conducted or whether the appellant waived the same, after which he was bound over for trial. In any event, an "information" was filed in the circuit division of the Circuit Court of Lewis County on August 25, 1997, charging the appellant with an attempt to manufacture methamphetamine, § 195.211. Thereafter, without any explanation, the exact same "information" was re-filed on September 4, 1997. On September 12, 1997, the appellant filed a motion for change of venue, as a matter of right, pursuant to Rule 32.03(a). The motion was sustained, and venue was changed to Adair County.
The record reflects that a felony "information" was filed on April 10, 1997, in the associate division of the Circuit Court of Lewis County. We assume that this was a misnomer and that the document should have been denominated a "complaint."
All rule references are to the Missouri Rules of Criminal Procedure (1998), unless otherwise indicated.
On April 29, 1998, the appellant re-filed his motion to quash the search warrant and suppress evidence. On May 5, 1998, after hearing evidence and argument of counsel, the court, the Honorable Russell E. Steele, overruled the appellant's motion to quash, finding that the trial court had probable cause to issue the warrant. As to the motion to suppress, the court overruled it as to the items seized from the machine shed, but granted it as to the items seized from the appellant's home, the court finding that the search warrant never authorized the search of the home. On May 19, 1998, the appellant was charged by amended information with one count of attempt to manufacture a controlled substance, § 195.211, wherein the prosecutor alleged that "the [appellant] acting alone or in concert with one or more unnamed persons attempted to manufacture methamphetamine." The charge of possession of a controlled substance, § 195.202, was dropped. The case proceeded to a jury trial on June 10, 1998.
At trial, Officer Rader, Trooper Reed, and Kurt Koller, a forensic chemist with the Missouri State Highway Patrol, testified as to the method predominately used in Northeast Missouri to manufacture methamphetamine, called the "Nazi, anhydrous ammonia, or lithium method." According to Officer Rader's testimony, that method
is started by mixing three precursor ingredients which includes . . . pseudoephedrine [ephedrine], lithium or sodium metal and anhydrous ammonia. The lithium metal is extracted from lithium batteries; the pseudoephedrine is taken from the pseudoephedrine — your cold pills; and the anhydrous ammonia comes out of the farmers' tanks in the fields. Mixing those three together causes a chemical reaction and broke down then into a solvent to cleanse it. As you break it down into a solvent, it's in a liquid form. From then you mix the sulfuric acid and salt together to make hydrochloride gas, which you run the gas into the solvent containing the methamphetamine base, and it crystallizes the methamphetamine.
Officer Rader testified that one necessary ingredient to manufacture methamphetamine by the Nazi method, ephedrine, was not found in the shed near the appellant's home. Ephedrine is commonly found in cold tablets or pills. In the manufacturing process, the pills are crushed and the binding agent in them is separated from the ephedrine. The ephedrine is separated into a liquid form while the binding agent becomes a white powdery residue. Officer Rader found several containers in the shed that contained a white powdery residue consistent with the binding material that is ordinarily separated from the ephedrine in the manufacturing of methamphetamine. However, the State did not offer any evidence that it was analyzed and found to be the binding agent produced by the manufacturing of methamphetamine. Koller testified, as to the equipment required to manufacture methamphetamine, that all that was needed was "some type of reaction flask, and that could just be a cooler or a plastic bucket. You really don't need much — just plastic containers and plastic tubing are the main things."
Defense witness Isabel Reeves, the appellant's close personal friend, testified that on April 9, 1997, she and Lisa Pollock, her friend, began manufacturing methamphetamine in the machine shed near the appellant's home without his permission. She testified that when Pollock arrived at the shed, she brought with her "the stuff to make methamphetamine" and had already made the methamphetamine base by crushing the cold pills to separate the ephedrine from the binding agent. She testified that in their attempt to manufacture methamphetamine, she "took out the lithium strips out of the batteries and . . . emptied maybe two cans of ether, took the gas off of it so it's just the ether, to pour in canning jars." She further testified that they did not complete the manufacturing of methamphetamine before they left the shed later that afternoon because Pollock had not brought enough ether with her, and she thought Ms. Pollock took "everything" home with her at that time. She also testified that no one was involved in the manufacturing other than them; the appellant did not have possession of any of the necessary "equipment or tools, or the chemicals" used by her and Pollock to manufacture methamphetamine; and he had previously told her that he did not want anyone manufacturing methamphetamine at his residence.
The appellant's father testified that the appellant worked for him doing various jobs and that as part of his compensation, he was allowed to live in the mobile home. He further testified that while the appellant had his permission to live in the mobile home, he did not have permission to use the shed located near that home, which he padlocked a few days prior to April 10, 1997, "because [he] would go by and see numerous people out there." He testified that on March 31, 1997, he asked the appellant to purchase some starter fluid for him and the appellant brought back a case of starter fluid. He also testified that at some point, he asked the appellant to contact Bruce Hoffman to inquire about the expense of installing electricity in the machine shed, which he did, and electricity was provided to the shed.
The case was submitted to the jury on the alternative theories that the appellant acted as a principal or an accomplice in the commission of the crime charged. In this regard, Instruction No. 5, the verdict directing instruction for an attempt to manufacture methamphetamine, patterned after MAI-CR 3d 304.04 (July 1, 1997) and modified by MAI-CR 3d 325.12 (Sept. 1, 1990), provided:
A person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with the other persons with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 9, 1997, in the County of Lewis, State of Missouri, the defendant or Isabelle Reeves or Lisa Pollock, attempted to manufacture methamphetamine, a controlled substance, and
Second, that the defendant or Isabelle Reeves or Lisa Pollock knew that the substance he or she attempted to manufacture was methamphetamine, then you are instructed that the offense of attempted manufacture [sic] of a controlled substance has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Third, that with the purpose of promoting or furthering the commission of attempting to manufacture a controlled substance, the defendant acted together with or aided Isabelle Reeves or Lisa Pollock in committing the offense, then you will find the defendant guilty of attempted manufacture of a controlled substance,
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
If you do find the defendant guilty of attempt to manufacture a controlled substance you will assess and declare the punishment at imprisonment for a term of years fixed by you, but not less than five years and not to exceed fifteen years.
The jury found the appellant guilty as charged. He did not file a motion for JNOV or, in the alternative, for a new trial. On September 8, 1998, the trial court sentenced the appellant to twelve years imprisonment in the Missouri Department of Corrections, with the sentence to run consecutively to an unrelated sentence that he was already serving.
On September 17, 1998, the appellant filed his notice of appeal with this court, raising three points. In Point I, he claimed that the trial court plainly erred in failing to direct, sua sponte, a verdict of acquittal at the close of all the evidence because there was insufficient evidence to support his conviction in that the record was void of any evidence from which the jury could have found the requisite common law attempt element of a "present ability" to commit the object crime of the attempt charged. In Point II, he claimed that the trial court plainly erred in submitting Instruction No. 5 because it deprived him of due process in that it did not instruct the jury as to the definition of "attempt" as that term is used in the statute and did not require the jury to find that he committed any conduct which would constitute a common law attempt to manufacture a controlled substance under the statute. In Point III, he claimed that the trial court plainly erred in failing to submit a jury instruction, sua sponte, for an attempt to manufacture a controlled substance, under § 564.011, because it deprived him of due process in that it was a lesser-included offense of common law attempt to manufacture a controlled substance under § 195.211, which submission was supported by the record.
At the time the appellant filed his notice of appeal with this court, all three districts of the Missouri Court of Appeals recognized two types of attempt to manufacture a controlled substance: (1) common law attempt under § 195.211; and (2) statutory attempt under § 564.011, the general statute on the inchoate offenses of attempt to commit an offense. See State v. Graham , 2 S.W.3d 859, 862-64 (Mo.App.W.D. 1999); State v. Little , 986 S.W.2d 924, 925 (Mo.App.E.D. 1999); State v. Farr , 978 S.W.2d 448, 450 (Mo.App.S.D. 1998). The two types of attempt were first recognized in State v. Reyes , 862 S.W.2d 377 (Mo.App.S.D. 1993), where the Southern District of this court held that when the word "attempt" was used in connection with a specific statute proscribing not only specific conduct but also an attempt to commit such conduct, the word was to be given its common law meaning. Id. at 386. "The effect of Reyes in prosecutions under such statutes was to create the anomaly of two species of attempt for the same offense." State v. Withrow , 8 S.W.3d 75, 78 (Mo.banc 1999). Common law attempt consisted of four elements: (1) the intent to commit the crime; (2) an overt act toward its commission; (3) failure of consummation of the crime; and (4) the apparent possibility of commission of the crime. Id. On the other hand, statutory attempt under § 564.011 only required the State to prove two elements: (1) a purpose to commit the underlying offense; and (2) the doing of an act which is a substantial step toward the commission of that offense. Id. Because the appellant was convicted of attempt to manufacture methamphetamine under § 195.211, his appeal was premised on his belief that he had been convicted of common law attempt.
On December 7, 1999, while the case at bar was pending on appeal, the Missouri Supreme Court decided State v. Withrow , 8 S.W.3d 75 (Mo.banc 1999), wherein it held that "[a]n attempt to commit an offense, regardless of whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense. To the extent Reyes is inconsistent with this opinion, it and its progeny are overruled." Id. at 80. The supreme court noted that one explanation for the redundant use of attempt, first in § 564.011, the general statute on inchoate offenses of attempt to commit an offense, and also in § 195.211, the specific statute proscribing attempt to manufacture a controlled substance, was "found in the punishment levied for attempted manufacture of drugs." Id. at 79. "Unlike the lesser punishment for the general inchoate crime of attempt to commit an offense, the legislature has chosen to impose the same punishment for attempted manufacture of methamphetamine as for the consummated crime." Id.
In light of Withrow , it was necessary for the issues raised by the appellant on appeal, which were based on a conviction for common law attempt, to be reframed in terms of substantial-step attempt. As such, on December 21, 1999, this court, on its own motion, granted rehearing in this case and directed the parties to file supplemental briefs addressing:
[w]hether the evidence was sufficient to convict defendant of "substantial-step" attempt to manufacture methamphetamine in violation of sections 195.211 and 564.011 and, if so, whether defendant is nonetheless entitled to a complete new trial because the jury was instructed, returned a verdict and recommended a sentence based on common law attempt as outlined in State v. Reyes , 862 S.W.2d 377, 384 (Mo.App 1993) rather than "substantial-step" attempt.
This appeal follows.
I.
In Point I, the appellant claims that the trial court plainly erred in failing to direct, sua sponte, a verdict of acquittal at the close of the State's evidence and all the evidence or enter, sua sponte, a JNOV because there was insufficient evidence to support his conviction in that the record is void of any evidence from which the jury could have found a requisite element of the crime for which he was convicted, that he did an act or acts which constituted a substantial step towards the commission of the offense of the manufacture of methamphetamine. Although the appellant's claim is cast only in terms of principal liability, the record reflects that his case was submitted to the jury such that it could have either convicted him as a principal or an accomplice. As such, even if we were to find that the evidence was insufficient to convict him as a principal, he would not be entitled to a reversal of his conviction for insufficiency of the evidence, unless we were also to find that the evidence was insufficient to convict him as an accomplice. For the reasons discussed, infra, we find that, although the evidence was insufficient to convict the appellant of the crime charged as a principal, it was sufficient to convict him as an accomplice.
The appellant concedes that because he did not file a motion for a directed verdict of acquittal at the close of the State's evidence or all the evidence and did not file a motion for JNOV or, in the alternative, for a new trial, he did not preserve for appellate review the issues raised in this point and requests plain error review under Rule 30.20. Rule 30.20 provides, in pertinent part, that "[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "'The plain error rule should be used sparingly and does not justify a review of every [alleged] trial error that has not been properly preserved for appellate review.'" State v. McMillin , 783 S.W.2d 82, 98 (Mo. banc 1990) ( quoting State v. Valentine , 646 S.W.2d 729, 731 (Mo. 1983)); see also State v. Silvey , 894 S.W.2d 662, 670 (Mo. banc 1995).
Giving the language in the rule its plain and ordinary meaning, we interpret it as providing for a two-step process in determining plain error review. Under the rule, the first step involves an examination to determine whether the claim for review "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,'" or, in other words, whether on the face of the claim, "plain error" has, in fact, occurred. State v. Brown , 902 S.W.2d 278, 284 (Mo.banc 1995). In the absence of such a determination, a court should "decline to exercise its discretion" to review a claim of error under Rule 30.20. Id . The rule makes it clear that not all prejudicial error — that is, reversible error — can be deemed plain error. Plain errors are those which are "evident, obvious, and clear." State v. Bailey , 839 S.W.2d 657, 661 (Mo.App. 1992). If plain error is found on the face of the claim, then the rule authorizes, as a matter of court discretion, a second step to determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.
The defendant bears the burden of showing that plain error has occurred which resulted in manifest injustice or a miscarriage of justice. State v. Isa , 850 S.W.2d 876, 884 (Mo. banc 1993). "Mere allegations of error and prejudice will not suffice." Id . "The determination [of] whether plain error exists must be based on a consideration of the facts and circumstances of each case." State v. Cline , 808 S.W.2d 822, 824 (Mo. banc 1991) ( citing State v. Sanders , 541 S.W.2d 530, 533 (Mo. banc 1976)). When guilt is established by overwhelming evidence, no injustice or miscarriage of justice results requiring relief under the rule. State v. Jordan , 627 S.W.2d 290, 293 (Mo. banc 1982) ( citing State v. Bainter , 608 S.W.2d 429, 431 (Mo.App. 1980)).
It is well settled in the law that the State, in order to convict, is required to prove, beyond a reasonable doubt, each and every element of the crime charged. State v. Scurlock , 998 S.W.2d 578, 582 (Mo.App. 1999) ( citing State v. Roberts , 948 S.W.2d 577, 590 (Mo. banc 1997)). It is also well settled that "[i]f the evidence presented in a criminal case is insufficient to sustain a conviction, plain error affecting [a] defendant's substantial rights is involved resulting in manifest injustice." State v. Moriarty , 914 S.W.2d 416, 422 (Mo.App. 1996); see also State v. White , 439 S.W.2d 752, 753 (Mo. 1969); State v. Todd , 805 S.W.2d 204, 207 (Mo.App. 1991); State v. Nations , 676 S.W.2d 282, 283 (Mo.App. 1984). This is so in that in a criminal case, the defendant has a constitutional due process right to require that the State present evidence from which any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Price , 980 S.W.2d 143, 144 (Mo.App. 1998); State v. Bailey , 645 S.W.2d 211, 212 (Mo.App. 1983). "Thus, a failure to present sufficient evidence involves substantial rights and if the evidence be found deficient, relief is appropriately considered under the aegis of the plain error rule." Bailey , 645 S.W.2d at 212 . In light of this standard and the issues raised by the appellant, we will exercise our discretion and grant plain error review.
"In determining the sufficiency of the evidence on appeal, the evidence and all inferences drawn from the evidence are viewed in the light most favorable to the verdict. This [c]ourt will disregard evidence and inferences contrary to the verdict." State v. Ervin , 979 S.W.2d 149, 159 (Mo. banc 1998) (citations omitted), cert. denied , 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999); State v. Knese , 985 S.W.2d 759, 769 (Mo. banc ), cert . denied , 526 U.S. 1136, 119 S.Ct. 1814, 143 L.Ed.2d 1017 (1999). "The purpose of appellate review is not to weigh the evidence but to determine whether there was sufficient evidence from which a reasonable juror could have found appellant guilty as charged." Ervin , 979 S.W.2d at 159; State v. Ellison , 980 S.W.2d 97, 98 (Mo.App. 1998).
Here, the appellant was convicted of an attempt to manufacture a controlled substance under § 195.211, which provides:
1. Except as authorized by sections 195.005 to 195.425, it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.
2. Any person who violates this section with respect to any controlled substance except five grams or less of marijuana is guilty of a class B felony.
3. Any person who violates this section with respect to distributing or delivering not more than five grams of marijuana is guilty of a class C felony.
(Emphasis added.) While this section does not expressly define attempt, the Missouri Supreme Court has held that the term "attempt," "whether the attempt is under sec. 564.011 [the general statute on inchoate offenses of attempt to commit an offense] or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense." Withrow , 8 S.W.3d at 80 . Thus, in order to convict a defendant of attempt to manufacture methamphetamine under § 195.211, the State is required to prove that the defendant: (1) acted with the purpose to commit the manufacture of methamphetamine; and (2) did an act which was a substantial step toward the manufacture of methamphetamine. Id. at 78. "A 'substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." § 564.011.1.
The State's verdict director, Instruction No. 5, hypothesized the appellant's guilt based on the alternative theories of principal and accomplice liability, instructing the jury to convict if it found either that: (1) the appellant himself made a substantial step towards the manufacture of methamphetamine; or (2) with the purpose of promoting the manufacture of methamphetamine, he aided Isabel Reeves and/or Lisa Pollock in an attempt to do so. Because the appellant's case was submitted to the jury on the alternative theories of principal and accomplice liability, in order to show on appeal that there was insufficient evidence to support his conviction, the appellant is required to show not only that the evidence was insufficient to establish that he personally attempted to manufacture methamphetamine by making a substantial step toward its manufacture, but also that the evidence was insufficient to establish that, with the purpose of promoting or furthering the manufacture of methamphetamine, he aided Reeves and/or Pollock in attempting to do so. Thus, unless the evidence was insufficient to convict the appellant of an attempt to manufacture methamphetamine under both principal and accomplice liability, we cannot convict the trial court of plain error in failing to direct, sua sponte, a verdict of acquittal at the close of the State's evidence and all the evidence or enter, sua sponte, a JNOV on the basis of insufficient evidence.
A. Sufficiency of Evidence to Convict as Principal
To convict the appellant as a principal of an attempt to manufacture methamphetamine, the State was required to show that, with the purpose of manufacturing methamphetamine, he did an act which constituted a substantial step toward the manufacture of the same. Withrow , 8 S.W.3d at 78; State v. O'Brien , 5 S.W.3d 532, 534 (Mo.App. 1999). For the reasons stated, infra, we find that the evidence was insufficient from which a reasonable jury could have found that the appellant committed the offense charged by making a substantial step toward the manufacture of methamphetamine.
The appellant, by calling Isabel Reeves as a witness at trial, who admitted, at the very least, to attempting, along with Lisa Pollock, to manufacture methamphetamine in the shed, conceded this fact at trial. In this regard, Reeves testified that when Pollock arrived at the shed, she brought with her "the stuff to make methamphetamine" and had already made the methamphetamine base by crushing the cold pills to separate the ephedrine from the binding agent. She also testified that in their attempt to manufacture methamphetamine, she "took out the lithium strips out of the batteries and . . . emptied maybe two cans of ether, took the gas off of it so it's just the ether, to pour in the canning jars." She further testified that they did not complete the manufacturing of methamphetamine before they left the shed later that afternoon because Pollock had not brought enough ether with her. Consistent with her testimony, the record reflects, as discussed, supra, that the search of the machine shed revealed a multiplicity of ingredients and equipment which were used by Reeves and Pollock in their attempt to manufacture methamphetamine. Thus, the only question in this subpoint is whether the evidence was sufficient to involve the appellant in the efforts of Reeves and Pollock such that he could be convicted as a principal of an attempt to manufacture methamphetamine.
Viewed in a light most favorable to a verdict finding the appellant guilty as charged as a principal, the record reflects that: (1) on March 31, 1997, he purchased a case of large cans of starter fluid, dimethyl ether, which is a common ingredient used in the manufacturing of methamphetamine, see Farr , 978 S.W.2d at 448 (recognizing that ether is a necessary ingredient for manufacturing methamphetamine), overruled on other grounds by Withrow , 8 S.W.3d at 80 n. 5; (2) he had electricity, which was necessary to the Nazi method of manufacturing methamphetamine, installed in the shed, where the actual manufacturing took place; (3) he was a close personal friend of Reeves, who admittedly was attempting to manufacture methamphetamine in the shed; and (4) he was the sole resident of the mobile home located in close proximity to the shed and was confined to the premises on almost a continual basis such that he would have been aware of the activities taking place in the shed and the odor associated with the manufacture of methamphetamine. We find that this evidence was insufficient for a reasonable juror to infer that the appellant took a substantial step, beyond mere preparation, toward the manufacture of methamphetamine.
Although the appellant's purchase of the ether and the installation of the electricity to the shed could reasonably be seen as being connected to Reeves and Pollock's attempt to manufacture methamphetamine, his acts were not illegal and were certainly not sufficient to convict him as a principal in that they did not constitute, in and of themselves, a substantial step in manufacturing methamphetamine. O'Brien , 5 S.W.3d at 534 . As to his friendship with Reeves and his presence on the premises, the "mere fact that a defendant is present on the premises where the manufacturing process is occurring does not by itself make a submissible case. Moreover, proximity to the contraband alone fails to prove ownership." Withrow , 8 S.W.3d at 80 (citation omitted). "There must be some incriminating evidence implying that the defendant knew of the presence of the manufacturing process, and that the materials or the manufacturing process were under his control." Id. Here, although there may be evidence from which a jury could reasonably infer that the appellant knew about the manufacturing process, there is insufficient evidence to establish that the materials and the process were under his control. Although the jury may have been entitled to be suspicious of the appellant's acts, it did not have a sufficient basis for concluding, without speculation, that he personally took a substantial step toward the manufacture of methamphetamine.
For the reasons stated, we find that the evidence here was insufficient for the jury to convict the appellant as a principal of an attempt to manufacture methamphetamine. Having made this determination does not end our inquiry, however. Given the fact that the case was submitted to the jury on the alternative theories of principal and accomplice liability, in deciding this appeal on the sufficiency of the evidence, we must also determine whether the evidence was sufficient to convict the appellant of an attempt to manufacture methamphetamine as an accomplice.
B. Sufficiency of Evidence to Convict as Accessory
With respect to accomplice liability, Missouri has eliminated the "distinction between principals and accessories." State v. Davis , 963 S.W.2d 317, 326 (Mo.App. 1997). Now, all persons who act in concert to commit a crime are equally guilty. State v. Martin , 971 S.W.2d 904, 907 (Mo.App. 1998). A person is criminally responsible for the conduct of another, when, either before or during the commission of an offense, with the purpose of promoting the commission of an offense, he or she aids or agrees to aid or attempts to aid such other person in planning, committing, or attempting to commit the offense. § 562.041.1(2); State v. Sensabaugh , 9 S.W.3d 677, 679 (Mo.App. 1999); State v. Chambers , 998 S.W.2d 85, 90-91 (Mo.App. 1999). "To make a submissible case of aiding and abetting, there must be some evidence that defendant associated himself with the venture or participated in the crime in some manner." Chambers , 998 S.W.2d at 91 . "The evidence, however, need not show that the defendant personally committed every element of the crime"; mere encouragement is enough. Id. ; Sensabaugh , 9 S.W.3d at 679 . "The law imputes to [the defendant] the criminal agency of his accomplices. A person who acts with another with a common intent and purpose in the commission of a crime is guilty, whether he is a principal or merely aids and abets the crime." State v. Edgar , 2 S.W.3d 896, 898 (Mo.App. 1999). "[A]ny evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction." State v. Clay , 975 S.W.2d 121, 139 (Mo. banc 1998), cert. denied , 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). Thus, in this case, in order to convict the appellant of an attempt to manufacture methamphetamine under a theory of accomplice liability, the State was required to prove that: (1) Reeves and/or Pollock, with the purpose of manufacturing methamphetamine, did an act that was a substantial step towards the manufacture of methamphetamine; and (2) the appellant, with the purpose of promoting or furthering the manufacture of methamphetamine, acted together with or aided Reeves and/or Pollock in committing that offense. §§ 564.011 562.041.1(2); MAI-CR 3d 304.04; MAI-CR 3d 304.06.
As discussed, supra, the appellant essentially conceded at trial that Reeves and/or Pollock took a purposeful and substantial step, as it is defined in § 564.011, toward manufacturing methamphetamine. Thus, the only question in this subpoint is whether there was evidence from which the jury could reasonably conclude that the appellant, with the purpose of promoting or furthering the manufacture of methamphetamine, acted together with or aided Reeves and/or Pollock in committing the crime of an attempt to manufacture methamphetamine. For the reasons discussed, infra, we find that there was sufficient evidence from which a reasonable juror could infer that he did.
As discussed, supra, the record reflects that on March 31, 1997, the appellant purchased a case of large cans of starter fluid, dimethyl ether, which is a common ingredient used in the manufacturing of methamphetamine. Farr , 978 S.W.2d at 448. In this respect, the record reflects that Reeves and Pollock, in their attempt to manufacture methamphetamine, had used ether as an ingredient. A reasonable juror could infer from this that the appellant, with the purpose of promoting the manufacture of methamphetamine, purchased the ether and gave it to Reeves and/or Pollock to aid them in their attempt to manufacture methamphetamine.
The record reflects that the appellant contacted Bruce Hoffman about getting electricity installed in the shed, and he advised the appellant to run an extension cord from his home to a fuse box in the shed. On April 7, 1997, Officer Grubb drove past the appellant's home and observed an extension cord running from the front of the appellant's home to the shed. On April 10, 1997, Officer Rader, Trooper Schroeder, and Trooper Reed also observed an extension cord running from the appellant's home to the shed. The appellant's exclusive possession, at that time, raises the inference of his possession and control of the extension cord which provided electricity to the shed. Withrow , 8 S.W.3d at 80 . Because the "Nazi, anhydrous ammonia, or lithium method" of manufacturing methamphetamine requires the "cooking" of the necessary ingredients during the manufacturing process, electricity is required to manufacture methamphetamine by this method. As such, a reasonable juror could infer from this evidence that the appellant ran the extension cord from his home to the shed in order to provide electricity to aid Reeves and/or Pollock in their attempt to manufacture methamphetamine in the shed.
The record reflects that on the evening of April 9, 1997, Officers Baker, Curless, Rader, and Bouyea drove past the appellant's residence and smelled an odor of what they believed to be ether or ammonia emitting from the immediate area of the appellant's residence and the shed. Because the appellant was under house arrest at that time, requiring him to wear an electronic monitoring device which prevented him from leaving his residence except for a short period of time each week, a reasonable juror could infer that he also smelled the odor of ether or ammonia emitting from the area of his residence and/or the shed and, thus, knew that methamphetamine was being manufactured inside.
Finally, the record reveals that Reeves and the appellant were close personal friends. From this, the jury certainly could have concluded that it was more than chance that she and Pollock chose the shed located right next to the appellant's residence as the location to manufacture methamphetamine. A reasonable inference would be that they chose the shed because they were acting in concert with the appellant.
Based on the foregoing, we believe that a reasonable jury could conclude, without speculation, that the appellant, with the purpose of promoting the manufacture of methamphetamine, aided Reeves and/or Pollock in attempting to manufacture methamphetamine such that he could be held criminally responsible for the offense as an accomplice. § 562.041.1(2); Sensabaugh , 9 S.W.3d at 679 . As such, the trial court did not plainly err, as the appellant claims, in failing to direct, sua sponte, a verdict of acquittal for the appellant at the close of the State's evidence and all the evidence or enter, sua sponte, a JNOV.
Point denied.
II.
In Point II, the appellant claims that the trial court plainly erred in giving the State's verdict directing instruction because it deprived him of due process in that it did not require the jury to find a requisite element of the crime charged, that he did an act which was a substantial step towards the manufacture of methamphetamine, and did not define "substantial step," as required by MAI-CR 3d 304.06. The appellant admits that because he did not object to the giving of the instruction, he did not preserve his claim of error for appellate review. However, he seeks plain error review under Rule 30.20. The State contends that the appellant is not entitled to any review of his claim because: (1) by failing to object to the giving of the instruction, he waived all appellate review of the same, including plain error review; and (2) even if the appellant is entitled to plain error review, any instructional error did not result in manifest injustice or a miscarriage of justice such that he would be entitled to the appellate relief he seeks.
A. Waiver of Appellate Review
Logically, we must first determine whether the appellant waived any objection to the giving of the State's verdict director such that he is not entitled to any appellate review, including plain error review, of this claim. In this regard, the State makes two contentions. First, it contends that the appellant waived any appellate review when he failed to object to Instruction No. 5 at trial, as required by Rule 28.03. Second, it contends that even if the appellant's failure to object did not constitute a complete waiver, he affirmatively waived all appellate review when, in response to the trial court's inquiry at the instruction conference as to whether the appellant had any objection to the giving of the verdict director submitted by the State, the appellant's trial counsel answered that he did not. We address these contentions of the State separately.
1. Waiver in Failing to Object as Required by Rule 28.03
The State first contends that the appellant waived all appellate review of his claim of error as to the State's verdict director, including plain error review, when he failed to specifically object at trial, as required by Rule 28.03, relying on State v. Martindale , 945 S.W.2d 669, 673 (Mo.App. 1997). In Martindale , the defendant did not object at trial to the trial court's giving of the State's verdict director for second-degree murder. On appeal, the defendant claimed that the trial court "plainly erred" in giving the instruction because the evidence was insufficient to support its submission. Id. at 671-72. The State claimed that the defendant waived any claim of error relating to the giving of the instruction because she did not object to it at trial. The Eastern District of this court held that "if the revised version of Rule 28.03 is to have any effect, the failure to specifically object must constitute a waiver." Id. at 673. The court reasoned that "[a] defendant cannot stand idly by, permit the giving of an erroneous instruction, and then benefit from her inaction." Id. The court concluded that the defendant had waived her claim of error regarding the submission of the instruction. Id. at 674. For the reasons discussed, infra, we reject the Eastern District's holding in Martindale , that the failure to specifically object to an instruction at trial, as required by Rule 28.03, constitutes a complete waiver of all appellate review, including plain error review under Rule 30.20, as to the giving of the instruction in question.
The revised version of Missouri Rule of Criminal Procedure 28.03 was effective July 1, 1995.
Rule 28.03 which governs objections to instructions and verdict forms, provides:
Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions and verdict forms. The objections must also be raised in the motion for new trial in accordance with Rule 29.11.
This rule does not expressly prohibit plain error review under Rule 30.20. This is not surprising to us, given the numerous and significant constitutional violations that can arise from instructional error. Further, we do not read it as being in conflict with Rule 30.20, as the State contends. Rather, giving the language used its plain and ordinary meaning, State v. Tinoco , 967 S.W.2d 87, 89 (Mo.App. 1998) ( citing Rohwer v. State , 791 S.W.2d 741, 743 (Mo.App. 1990)), we interpret it as providing simply that in order to preserve a claim of error with respect to a jury instruction, the party is required to make a specific objection to the instruction at trial. Thus, when a party fails to specifically object to an instruction at trial, any claims of error with respect thereto are not preserved for appellate review. However, these unpreserved claims of error may still be reviewed, in the appellate court's discretion, for plain error under Rule 30.20. State v. Dunn , 7 S.W.3d 427, 430 (Mo.App. 1999); State v. Santillan , 1 S.W.3d 572, 577-78 (Mo.App. 1999). As such, we find that the appellant did not waive plain error review under Rule 30.20 as to the giving of the State's verdict director when he failed to specifically object to it at trial, as required by Rule 28.03. See Chambers , 998 S.W.2d at 88 n. 1 (rejecting the State's argument that it was "precluded from exercising [its] discretion to grant plain error review simply because counsel said he had no specific objection to the instruction, and generally objected to all instructions").
By holding as we do with respect to the issue of waiver by failing to object, as required by Rule 28.03, we necessarily refuse to follow Martindale , to the extent it holds to the contrary.
2. Affirmative Waiver
The State next contends that even if the appellant's failure to specifically object, as required by Rule 28.03, did not constitute a complete waiver of his claim, he affirmatively waived all appellate review of the same, including plain error review, when his trial counsel advised the trial court that he had no objection to the giving of the instructions. In this respect, the record reflects that at the instruction conference, the trial court expressly asked whether the appellant's counsel had any objection as to any of the jury instructions submitted by the State, which would have necessarily included the State's verdict director. The appellant's trial counsel replied, "No, I do not." As the State contends, the appellant's trial counsel's response would ordinarily constitute an affirmative waiver by the appellant of any claim of error as to the giving of the verdict director. See State v. Stevens , 949 S.W.2d 257, 258-59 (Mo.App. 1997) (holding that when the defendant's trial counsel stated at trial that he had no objection to the trial court's proposed response to a question asked by the jury during its deliberations, he affirmatively waived appellate review of the issue, including plain error review). However, for the reasons discussed, infra, we find that the appellant's trial counsel's response, given the circumstances, did not constitute an affirmative waiver of plain error review as to the giving of the State's verdict director.
"'A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.'" State v. Bucklew , 973 S.W.2d 83, 90 (Mo. banc 1998) (emphasis added) (citation omitted), cert. denied , 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999); Black's Law Dictionary 1580 (6th ed. 1990). "[T]he proper standard to be applied in determining the question of waiver is that it is incumbent upon the state to prove an intentional relinquishment or abandonment of a known right or privilege." State v. Fox , 916 S.W.2d 356, 362 (Mo.App. 1996). In this case, as discussed, supra, at the time of the appellant's trial, all three districts of the Missouri Court of Appeals recognized two types of attempt to manufacture a controlled substance: (1) common law attempt under § 195.211; and (2) statutory attempt under § 564.011, the general statute on the inchoate offenses of attempt to commit an offense. See Graham , 2 S.W.3d at 862-64; Little , 986 S.W.2d at 925; Farr , 978 S.W.2d at 450 . The two types of attempt were first recognized in State v. Reyes , 862 S.W.2d 377 (Mo.App. 1993), where the Southern District of this court held that when the word "attempt" was used in connection with a specific statute proscribing not only specific conduct but also an attempt to commit such conduct, the word was to be given its common law meaning. Id. at 386. "The effect of Reyes in prosecutions under such statutes was to create the anomaly of two species of attempt for the same offense." Withrow , 8 S.W.3d at 78 . Common law attempt consisted of four elements: (1) the intent to commit the crime; (2) an overt act toward its commission; (3) failure of consummation of the crime; and (4) the apparent possibility of commission of the crime. Id. On the other hand, statutory attempt under § 564.011 only required the State to prove two elements: (1) a purpose to commit the underlying offense; and (2) the doing of an act which is a substantial step toward the commission of that offense. Id. On December 7, 1999, while the case at bar was pending on appeal, the Missouri Supreme Court decided State v. Withrow , 8 S.W.3d 75 (Mo. banc 1999), wherein it held that "[a]n attempt to commit an offense, regardless of whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense," overruling Reyes and its progeny. Id. at 80.
Because the appellant was charged with attempt to manufacture methamphetamine under § 195.211, pursuant to the recognized law at the time, his case was submitted to the jury on common law attempt to manufacture methamphetamine. Thus, the jury was not required to be instructed upon the element of a substantial step. Logically, then, the appellant's trial counsel would not have had any reason to question whether the State's verdict director was in error for failing to instruct on this element. As a consequence, although we find the appellant did not "preserve" for appeal his claim of instructional error, we cannot find that he affirmatively waived the same such that he could not, in the discretion of this court, receive plain error review of the same.
Having determined that the appellant did not waive plain error review as to the giving of the State's verdict director, we must determine next whether we will exercise our discretion to review his claim for plain error and, if we choose to do so, whether manifest injustice or a miscarriage of justice has resulted.
B. Plain Error Review
The appellant claims that the trial court plainly erred in giving the State's verdict director, which instructed the jury on common law attempt, because it deprived him of due process in that, unlike MAI-CR 3d 304.06, the applicable instruction for substantial-step attempt, it did not require the jury to find that he did an act which was a "substantial step" towards the manufacture of methamphetamine, an essential element of the crime of attempt to manufacture methamphetamine under § 195.211, Withrow , 8 S.W.3d at 78 , and did not define it, as required by MAI-CR 3d 304.06. We agree.
As discussed, supra, under Rule 30.20, plain error review involves a two-step process. The first step involves an examination to determine whether the claim for review "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,'" or, in other words, whether on the face of the claim, "plain error" has, in fact, occurred. Brown , 902 S.W.2d at 284 . In the absence of such a determination, a court should "decline to exercise its discretion" to review a claim of error under Rule 30.20. Id . The rule makes it clear that not all prejudicial error — that is, reversible error — can be deemed plain error. Plain errors are those which are "evident, obvious and clear." Bailey , 839 S.W.2d at 661 . Rule 28.02(c) provides: "Whenever there is an MAI-CR instruction or verdict form applicable under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form." Rule 28.02(f) provides: "The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes on Use shall constitute error, the error's prejudicial effect to be judicially determined." Pursuant to Withrow , the jury in this case should have been instructed on substantial-step attempt, rather than common law attempt. In this respect, MAI-CR 3d 304.06, the mandatory verdict directing instruction for substantial-step attempts, requires the jury to find, inter alia, that the defendant did an act which was a "substantial step" towards the commission of the object offense. Withrow , 8 S.W.3d at 78 . It is undisputed that the State's verdict director did not require the jury to find that a substantial step was taken towards the object crime and did not define what acts constituted the same. Hence, it did not follow MAI-CR 3d 304.06, which was error. Rule 28.02(f). The question is whether it was plain error. Instructional error seldom rises to the level of plain error. State v. Roe , 6 S.W.3d 411, 415 (Mo.App. 1999); State v. Cates , 3 S.W.3d 369, 372 (Mo.App. 1999). "To show that the trial court 'plainly erred' in submitting a jury instruction, a defendant 'must go beyond a demonstration of mere prejudice.'" Cates , 3 S.W.3d at 372 ( quoting State v. Davidson , 941 S.W.2d 732, 736 (Mo.App. 1997)). "'In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict,'" Roe , 6 S.W.3d at 415 ( quoting State v. Doolittle , 896 S.W.2d 27, 29 (Mo. banc 1995) (citation omitted)), and "'cause[d] manifest injustice or miscarriage of justice.'" State v. Schnelle , 7 S.W.3d 447, 451 (Mo.App. 1999) ( quoting Cline , 808 S.W.2d at 824 ). The "'[d]efendant bears the burden of establishing manifest injustice.'" Id. ( quoting Cline , 808 S.W.2d at 824 ).
MAI-CR 3d 304.06 (July 1, 1997) provides:
(As to Count ___, if) (If) you find and believe from the evidence beyond a reasonable doubt:
First, that (on) (on or about) [ date], in the (City) (County) of _______, State of Missouri, the defendant [ Briefly describe the conduct that would constitute the attempt.], and
Second, that such conduct was a substantial step toward the commission of the offense of [ name of offense with sufficient details to identify person or property involved, such as "burglary in the second degree of the building at 204 Grimm Street.".], and
Third, that defendant engaged in such conduct with the purpose of committing such [ name of offense],
then you will find the defendant guilty (under Count __) of an attempt to commit [ name of offense].
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
(A person commits the crime of [ name of crime] when he [ Insert definition of crime including all elements thereof.])
As used in this instruction, the term "substantial step" means conduct which is strongly corroborative of the firmness of the defendant's purpose to complete the commission of the offense of [ name of offense]. (It is no defense that it was factually or legally impossible to commit [ name of offense] if such offense could have been committed had the circumstances been as the defendant believed them to be.)
If you do find the defendant guilty (under Count __) of (an attempt to commit) (attempted) [ name of offense], you will assess and declare one of the following punishments: [ Insert range of punishment as directed in MAI-CR 3d 304.02.]
The appellant contends that the State's verdict director was defective and its giving resulted in plain error because it did not require the jury to find an essential element of the crime charged, as defined in Withrow , that the appellant did an act which was a substantial step towards the manufacture of methamphetamine, and did not define "substantial step," as required by MAI-CR 3d 304.06. He argues that these instructional errors resulted in manifest injustice or a miscarriage of justice because the jury was allowed to convict him of an attempt to manufacture methamphetamine, under § 195.211, without finding an essential element of the crime, the taking of a substantial step toward the commission of the object crime, Withrow , 8 S.W.3d at 78 , and without proper guidance from the trial court as to what constituted the same such that the jury was given a roving commission with respect thereto. It is well settled in the law that "'[a] verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute [the] essential elements of [the] offense charged.'" Geiler v. State , 921 S.W.2d 74, 76 (Mo.App. 1996) ( quoting State v. Ward , 745 S.W.2d 666, 670 (Mo. banc 1988)). As such, we find that the appellant's claim, that the trial court erred in giving the State's verdict director, facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice resulted therefrom. Hence, we will exercise our discretion under Rule 30.20 to review the appellant's claim for manifest injustice or a miscarriage of justice.
As we discussed, supra, the jury was instructed on the appellant's case such that it could have found him guilty as charged as either a principal or an accomplice. However, the form of verdict given to the jury on which to return its verdict did not require a finding as to whether the appellant was being found guilty as a principal or an accomplice. As a consequence, we have no way of knowing, without engaging in pure speculation, on which basis he was convicted. In any event, whether the jury found him guilty as a principal or an accomplice, it still would necessarily have had to find that either the appellant, in the case of principal liability, or Reeves and/or Pollock, in the case of accomplice liability, did an act which was a substantial step towards the commission of the object crime of the manufacture of methamphetamine. Thus, if, in our view, the State's verdict director, which was based on common law attempt, rather than substantial-step attempt, as it should have been, misled and misdirected the jury such that they could have found the appellant guilty without making the requisite substantial-step finding, then we would be required to reverse for a new trial.
As discussed, supra, the State's verdict director did not require the jury to find that the appellant or Reeves and/or Pollock did an act which was a substantial step in the commission of the object crime, as required. Rather, as to such an act, it simply instructed the jury that to convict it had to find and believe, inter alia, that "the [appellant] or Isabelle Reeves or Lisa Pollock, attempted to manufacture methamphetamine." It did not define what acts would constitute an attempt. As such, unlike when the jury is instructed under MAI-CR 3d 304.06 on substantial-step attempt, here the jury had no guidance with respect to what acts of the three individuals, including the appellant, would be sufficient to constitute an attempt adequate to convict the appellant of an offense under § 195.211. Of course, this would not be problematic if the common usage definition of "attempted," as used in the State's verdict director, necessarily included "substantial step," as defined in the context of the law of attempt, State v. Matheson , 919 S.W.2d 553, 558 (Mo.App. 1996), but, in our view, such is not the case. "Substantial step" has been defined in the context of an attempt as "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." § 564.011. We cannot say, with the certainty required by due process considerations, that, without the jury being instructed on substantial step and its definition, a reasonable jury would not convict for attempt without deliberating and finding this requisite element. Hence, we find that manifest injustice and a miscarriage of justice did result from the instructional error alleged by the appellant for failure of the court to instruct and the jury to find that a substantial step was taken in the commission of the object crime, Roe , 6 S.W.3d at 415 , requiring us to reverse and remand for a new trial.
C. State's Contentions as to No Instructional Error
Finding as we do, we are mindful of the State's two assertions as to why the trial court's instructional errors did not rise to the level of plain error. First, it asserts that no manifest injustice or miscarriage of justice resulted from the giving of the State's verdict director, which instructed the jury on common law attempt, because it required a higher burden of proof than was required to prove substantial-step attempt. Second, the State contends that the appellant did not suffer manifest injustice or a miscarriage of justice by the trial court's giving of the State's verdict director as alleged because the issue of substantial step was not in dispute at trial. For the reasons stated, infra, we reject both contentions.
1. Higher Burden of Proof
The State contends that the State's verdict director based on common law attempt was not erroneous, as alleged, resulting in manifest injustice or a miscarriage of justice, because it required a higher burden of proof to convict than that required for substantial-step attempt. See Notes on Use 2 for MAI-CR 3d 304.06. While we acknowledge the fact that the court in Withrow did opine that, in effect, substantial-step attempt was a lesser included offense of common law attempt, Withrow , 8 S.W.3d at 78 , for the reasons discussed, infra, we reject the State's higher-burden contention.
We recognize that cases have held that, as a general proposition, "[a] criminal jury instruction that puts an additional burden on the state beyond that which is legally required in order to establish guilt, is not prejudicial to the defendant" and does not result in manifest injustice or a miscarriage of justice. State v. Livingston , 801 S.W.2d 344, 350 (Mo. banc 1990); see also State v. Strughold , 973 S.W.2d 876, 889 (Mo.App. 1998); State v. Kilmartin , 904 S.W.2d 370, 375 (Mo.App. 1995). Our reading of these cases reveals that the rationale for this proposition is that the jury, having been instructed on a higher burden than was required to convict for the crime actually charged and finding the defendant guilty, necessarily must have found all the essential elements of the crime of which the defendant was charged and convicted and was not misdirected or misled by the erroneous instruction. Livingston , 801 S.W.2d at 350 . As such, given our discussion, supra, as to why we found the State's verdict director to be misleading as to the elements the jury was required to find in order to convict the appellant of substantial-step attempt, we are not convinced that, based on the instruction given, the jury necessarily found all the essential elements of substantial-step attempt, as required, and that it was not misled as to what it was required to find in order to convict for the crime charged.
B. Substantial Step Not in Dispute
The State also contends that its verdict director did not result in manifest injustice or a miscarriage of justice, as alleged by the appellant, because the issue of whether the jury, in convicting him, found that he had done an act which was a substantial step towards the commission of the object crime, was not in dispute. Specifically, it contends that it was not in dispute because the appellant's theory of defense at trial was that, while Reeves and/or Pollock attempted to manufacture methamphetamine by doing an act which was a substantial step towards the commission of this offense, he did not aid them in doing so and was not their accomplice. While we would agree with the State's assertion that, as a general rule, no manifest injustice or miscarriage of justice results from the trial court's failure to instruct the jury in the verdict director on an essential element of the crime charged which was not in dispute, Roe , 6 S.W.3d at 415; Cates , 3 S.W.3d at 372; State v. King , 988 S.W.2d 663, 667 (Mo.App. 1999); State v. Hill , 970 S.W.2d 868, 872 (Mo.App. 1998); State v. Newton , 963 S.W.2d 295, 298 (Mo.App. 1997), we would disagree with its assertion that this rule would apply here to deny the appellant the appellate relief he seeks.
As previously discussed, the jury was instructed on the appellant's case such that it could have found him guilty either as a principal or accomplice, and we have no way of knowing on which basis it returned its verdict of guilty. Because the State chose to submit guilt on these alternative theories, it was required to make a submissible case as to both. State v. Yoksh , 989 S.W.2d 227, 232 (Mo.App. 1999). As such, to make a submissible case on principal liability, it was required to prove that the appellant personally did an act which was a substantial step towards manufacturing methamphetamine. Hence, the fact that the appellant may have, in effect, conceded at trial that Reeves and/or Pollock did an act which was a substantial step towards the commission of the object crime, an essential element to convict the appellant as an accomplice as charged, the record would reflect that he made no such concession with respect to his personally doing such an act, such that this issue was in dispute with regard to his conviction as a principal. This fact cannot be ignored in determining whether manifest injustice or a miscarriage of justice resulted from the giving of the State's verdict director, despite the fact that in Point I, supra, we found that the evidence was insufficient to convict the appellant as a principal, inasmuch as under the instruction given, the jury may well have convicted him as such without determining that he did an act which was a substantial step toward the object crime.
Conclusion
The judgment of the circuit court of the appellant's conviction of attempt to manufacture a controlled substance, methamphetamine, in violation of § 195.211, is reversed and remanded for a new trial in accordance with this opinion.
Howard and Holliger, JJ., concur.