Opinion
WD 56473
November 9, 1999
Appeal From the Circuit Court of Adair County, Missouri Honorable Russell E. Steele, Judge
John Munson Morris, Assistant Attorney General, Jefferson City, MO, Attorney for Respondent. Michael A. Gross, St. Louis, MO, Attorney for Appellant.
Before: Smith, P.J., Howard, J., and Turnage, Sr.J.
Bryan E. Wurtzberger appeals the judgment of his jury conviction 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 three 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 all the evidence 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 the requisite element of a "present ability" to commit the object crime of the attempt charged. In Point II, he claims that the trial court plainly erred in submitting jury instruction 5, the State's verdict directing instruction for an attempt to manufacture a controlled substance under § 195.211, because it deprived him of due process in that the instruction 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 an attempt to manufacture a controlled substance under the statute. In Point III, he claims 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 an attempt to manufacture a controlled substance under § 195.211, which submission was supported by the record.
We affirm.
Facts
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 methamphetamine in an outbuilding located near the appellant's residence in LaBelle, Lewis County, Missouri. On April 9, a search warrant was issued by the Honorable Fred L. Westhoff for an outbuilding located approximately 40 to 45 feet from the appellant's residence. The warrant authorized a search for "methamphetamines or materials and equipment used to manufacture methamphetamines." The search warrant was executed on April 10, 1997. Several law enforcement officers participated in the execution of the search warrant, including Doug Rader, a member of the Northeast Missouri Narcotics Task Force, and Troopers Ernie Schroeder and Lenny Reed of the Missouri Highway Patrol.
Upon arrival at the appellant's residence, Officer Rader, Trooper Schroeder, and Trooper Reed proceeded to a machine shed located near the residence of the appellant, 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 the shed before entering.
Once inside the shed, the officers discovered and seized the following items commonly used in the manufacture 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. 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, the appellant filed in the associate division of the Circuit Court of Lewis County a motion to quash the search warrant and to suppress evidence. The record does not reflect whether this motion was ever ruled upon. 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. The record does not reflect whether a preliminary hearing was conducted, after which the appellant was bound over, or whether he waived the same. In any event, 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, it was overruled as to the items seized from the machine shed, but granted as to the items seized from the appellant's residence, the court finding that the search warrant never authorized the search of the residence. On May 19, 1998, the appellant was charged by amended information with one count of attempt to manufacture a controlled substance, § 195.211. 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 Highway Patrol, described the method predominately used in Northeast Missouri to manufacture methamphetamine, called the "Nazi, anhydrous ammonia, or lithium method." That method
is started by mixing three precursor ingredients which includes . . . pseudoephedrine [ephedrine], lithium or sodium metal and anhydrous ammonia. The lithium metal 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 appellant's shed. 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 the white powdery residue found in the shed 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 testified that on April 9, 1997, she and an acquaintance, Lisa Pollock, began manufacturing methamphetamine in the machine shed near the appellant's residence without his permission. She testified that when Lisa arrived at the shed, she brought with her "all of 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 further testified that she and Lisa did not complete the manufacturing of methamphetamine before they left the shed later that afternoon, and she thought Lisa took "everything" home with her at that time. In closing argument, the State acknowledged that ephedrine was an ingredient necessary for the manufacturing of methamphetamine and that it was not found in the machine shed.
After a one-day trial, the jury found the appellant guilty as charged. He did not file an after-trial motion for acquittal or for new trial. On September 8, 1998, the trial court sentenced the appellant to twelve years imprisonment in the Missouri Department of Corrections, to run consecutively with an unrelated sentence that he was currently serving.
This appeal follows.
Standard of Review
The appellant concedes that because he did not object at trial, he did not preserve for appellate review any of the issues raised in his points relied on and requests plain error review under Rule 30.20. Rule 29.11(d); State v. Clemons , 946 S.W.2d 206, 224 (Mo. banc ), cert. denied , ___ U.S. ___, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). 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).
A plain reading of the rule indicates that plain error review involves a two-step process. 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)).
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 all the evidence because there was insufficient evidence to support his conviction under § 195.211 of an attempt to manufacture a controlled substance, methamphetamine, in that there was no evidence introduced from which the jury could have found all of the required elements of the offense charged. Specifically, he claims that the State, in order to convict, was required to show that he had the "present ability" to manufacture methamphetamine and that it failed to do so because ephedrine, a necessary ingredient for manufacturing methamphetamine by the "Nazi" method allegedly being used by him, was not found in the machine shed at the time of his arrest. As discussed, supra, because the appellant did not properly preserve for appellate review this claim of error, limiting him to plain error review under Rule 30.20, we must determine first whether to exercise our discretion and review for plain error.
In determining whether the appellant's claim "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,'" Brown , 902 S.W.2d at 284 , to justify plain error review, we initially note that the appellant's claim attacks the sufficiency of the evidence to convict. 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. Logan , 941 S.W.2d 728, 732 (Mo.App. 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); s ee 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 responding to the appellant's claim, the State concedes that no ephedrine was found in the machine shed at the time of the appellant's arrest. However, it argues that this was not fatal to his conviction in that, contrary to his claim, it was not required to show that he had the "present ability" to commit the crime of manufacturing methamphetamine at the time of his arrest, but only the "apparent ability" to do so. From this, it argues that the jury could have found that he had the apparent ability to manufacture methamphetamine, as required, because the evidence was sufficient from which the jury could reasonably infer that "it was not impossible for him to get the cold or sinus pills, that could be broken down into ephedrine, from another location such as his house or from a store." As such, in determining whether to grant the appellant plain error review, we necessarily must decide whether, as the appellant contends, the State was required to show, as a matter of law, in order to satisfy the requisite elements of the crime charged and to convict, that he possessed all of the necessary ingredients to manufacture methamphetamine, specifically, ephedrine.
The elements necessary to convict for an attempt to manufacture methamphetamine have been expressly held by the Missouri Court of Appeals to be different depending on the statute under which the defendant is convicted. In this respect, all three districts have recognized two types of attempt: (1) common law attempt under § 195.211; and (2) statutory attempt under § 564.011. See, i.e., State v. Graham , No. WD 55979, slip op. at 5-8 (Mo.App. Oct. 5, 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) ( citing State v. Reyes , 862 S.W.2d 377, 383 (Mo.App.S.D. 1993)). The Missouri Supreme Court has not yet expressly ruled on this issue. However, because it transferred and then retransferred Reyes back to the Southern District, it could be argued that the court implicitly agreed with the Reyes holding, recognizing the two types of attempt. See State v. Alul , 948 S.W.2d 215, 218 (Mo.App. 1997) (holding that the supreme court's act of retransferring a case to the court of appeals could be interpreted as tacitly approving the holding of the case). As to the supreme court's position on this issue, it should be noted that the court just recently took transfer of State v. Withrow , No. ED 73579, slip op. at 12-14 (Mo.App. July 13, 1999), from the Eastern District, which in our view will now require it to expressly address the issue of whether there are two types of attempt in this state. Regardless, it is at least arguable that the enactment of § 564.011 abrogated the crime of common law attempt, Raper v. Lusk , 192 Mo. App. 378, 181 S.W. 1032, 1033 (Mo.App. 1916), and that § 195.211 should not be read as providing a separate crime of common law attempt, but as simply ratcheting up the punishment for an attempt, as defined in § 564.011, for an offense denominated in § 195.211. However, inasmuch as the parties here do not raise this issue, and, we believe that the Missouri Supreme Court will rule on this issue in the near future in Withrow , we choose not to address whether, in fact, the substantive law provides for two types of attempt in this state, as held in Reyes and those cases that have followed it.
With respect to there being two types of attempt, the Notes on Use for MAI-CR 3d 325.06 provide that "[t]his instruction submits attempt to manufacture or produce a controlled substance as a common law attempt, and no definition of 'attempt' is permitted. To submit a Section 564.011, RSMo 1994, 'substantial step attempt,' use MAI-CR 3d 304.06, in which case the range of punishment will be one grade less."
Here, the appellant was not convicted of an attempt under § 564.011, but rather under § 195.211. Section 195.211 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 define attempt, the Reyes court reasoned that this section referenced common law attempt and adopted the definition of the same as found in State v. Thomas , 438 S.W.2d 441, 446 (Mo. 1969). In Thomas , the Missouri Supreme Court defined an attempt as:
an intent to do a particular thing which the law has declared to be a crime, "coupled with an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law, that does not concern itself with things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act towards it falling short of the thing intended." An attempt is separate and distinct from the crime itself. . . . To be found guilty of an attempt to commit a crime there must be some overt act in part execution of the intent to commit the crime, which falls short of the completion of the crime, which overt act must move directly toward the consummation of the crime. There must be at least an apparent ability to commit the crime; it must be apparently possible. Mere preparation is not sufficient to constitute an attempt to commit a crime. The defendant must have taken steps going beyond mere preparation, by doing something bringing him nearer the crime he intends to commit. The act need not, however, be the ultimate step toward, or the last proximate, or the last possible, act to the consummation of the crime attempted to be perpetrated.
Id. at 446 (citations omitted).
Section 564.011 was enacted in lieu of § 556.150, RSMo 1969 (repealed 1978), which "contained a tougher test for attempt," in that it was interpreted as "requiring the defendant to come very close to the actual commission of the offense in order to be convicted of attempt." State v. Molasky , 765 S.W.2d 597, 600 (Mo. banc 1989). Section 556.150 read in pertinent part:
All references to § 556.150 are to § 556.150, RSMo 1969 (repealed 1978).
Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: . . .
This section was nearly identical to the attempt statute enacted in 1879, § 1645, RSMo 1879, which was followed by § 3940, RSMo 1889; § 2360, RSMo 1899; § 4894, RSMo 1909; § 3683, RSMo 1919; § 4442, RSMo 1929; and § 4835, RSMo 1939. In State v. Davis , 319 Mo. 1222, 6 S.W.2d 609 (Mo. 1928), the Missouri Supreme Court expressed its belief that § 3683, RSMo 1919, under which the defendant was charged with an attempt to commit murder in the first degree, followed and coincided with common law. Id . at 613. In Davis , the court recognized three elements of attempt: "(1) The intention to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission." Id . at 611.
In State v. Block , 333 Mo. 127, 62 S.W.2d 428 (Mo. 1933), the supreme court, citing Davis , recognized that there were three elements of attempt. Id . at 431. However, the Block court, without specifically holding that it constituted a fourth element of attempt, also noted that:
"[t]o constitute an indictable attempt to commit a crime, its consummation must be apparently possible, or in other words, there must be at least an apparent ability to commit it; if the means employed are so clearly unsuitable that it is obvious that the crime cannot be committed, the attempt is not indictable."
Id . at 430 (emphasis added) (citation omitted). Then in State v. Wright , 342 Mo. 58, 112 S.W.2d 571 (Mo. 1937), the supreme court, citing Block , 62 S.W.2d at 431 , did hold expressly that there were four elements of attempt, adding the fourth element, "apparent possibility of commission" of the object crime. Wright , 112 S.W.2d at 573 . Wright was followed by State v. Miller , 368 S.W.2d 353 (Mo. 1963), in which the defendant was charged with an attempt under § 556.150. The supreme court in Miller , relying on Wright , again held that there were four elements of attempt. Miller , 368 S.W.2d at 359 . Finally, in State v. Olds , 603 S.W.2d 501 (Mo. banc 1980), citing Miller , the supreme court recognized that there were, in fact, four elements of attempt under § 556.150. Olds , 603 S.W.2d at 508 . Although it appears that the Missouri Supreme Court has never expressly held as such, in light of these prior decisions of the court, which recognized that § 556.150, and its nearly identical predecessors, mirrored the common law, it appears to have impliedly held that common law attempt consists 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 .
We would note that the Southern District in Reyes did expressly hold that "§ 556.150 RSMo 1969 (repealed) embodied the common law meaning of the term [attempt]." Reyes , 862 S.W.2d at 384 . However, it cited no case or statutory authority for this proposition. Id.
Whereas common law attempt has been held by the Missouri Supreme Court to have four elements to convict, to convict under § 564.011, the statute only requires the State to prove two elements: "1) a purpose to commit the offense, and 2) the doing of an act which is a substantial step toward the commission of that offense." Molasky , 765 S.W.2d at 601 . Thus, as we recently held in State v. Graham , No. WD 55979, slip op. at 7-8 (Mo.App. Oct. 5, 1999), as a matter of the required proof for conviction, § 564.011 replaces the last three elements of common law attempt with the sole element of "substantial step," and, as such, focuses on what the defendant has already done, not what he or she still has to accomplish to commit the object crime of the charged attempt. Molasky , 765 S.W.2d at 600 . This lesser threshold of proof may explain why an attempt under § 564.011 is only a class C felony, while a common law attempt under § 195.211 is a class B felony. See Farr , 978 S.W.2d at 450; Little , 986 S.W.2d at 925-26 .
As stated, there are only two elements necessary to constitute statutory attempt under § 564.011, as opposed to the four elements necessary to constitute common law attempt. Molasky , 765 S.W.2d at 601; Olds , 603 S.W.2d at 508 . Despite this, both the Eastern and Western Districts of this court have in some cases failed to recognize this distinction and have continued to hold that the State is required to prove the four common law elements of attempt in cases dealing with convictions of statutory attempt under § 564.011. See State v. Davis , 982 S.W.2d 739, 741-42 (Mo.App. 1998); State v. Motley , 976 S.W.2d 502, 505-06 (Mo.App. 1998); State v. Rogers , 959 S.W.2d 467, 468-69 (Mo.App. 1997); State v. Mulder , 916 S.W.2d 346, 347-48 (Mo.App. 1996); State v. McCrary , 900 S.W.2d 227, 230 (Mo.App. 1995); State v. Blaney , 801 S.W.2d 447, 449 (Mo.App. 1990); State v. Hardy , 735 S.W.2d 153, 154 (Mo.App. 1987); State v. Miller , 692 S.W.2d 339, 341 (Mo.App. 1985).
Given the foregoing discussion, the issue in our case is properly stated as whether the evidence was sufficient to satisfy what has been identified by the Missouri Supreme Court as the fourth element of common law attempt, the "apparent possibility of commission" of the crime. Olds , 603 S.W.2d 508. "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 , ___ U.S. ___, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999); State v. Knese , 985 S.W.2d 759, 769 (Mo. banc ), cert . denied , ___ U.S. ___, 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 .
In making his claim, the appellant primarily relies on Reyes and Farr , which relied on Reyes . His reliance is misplaced. In Reyes , the Southern District, after first holding that an attempt under § 195.211 had a common law meaning, as noted, supra, held that the defendant could not be found guilty of the common law attempt to produce more than 5 grams of marijuana, because, "at the time of her arrest, [she] did not have the present ability to consummate the offense." Reyes , 862 S.W.2d at 387 (emphasis added). This finding was based on the fact that the marijuana plants seized at the time of the defendant's arrest were found to be insufficient to establish the requisite weight in grams of marijuana for conviction, as charged, as opposed to the weight that they may have ultimately produced if allowed to grow to maturity. Id. The court cited no authority for its reference to "present ability," rather than "apparent possibility or ability," as being the required fourth element of proof of common law attempt. Our research discloses that no appellate court prior to Reyes had ever used the "present ability" language. For the reasons stated, infra, it is our opinion that this change in terminology was significant in that it engrafted a proof requirement on common law attempt that was never intended by the Missouri Supreme Court, based on its prior holdings on the issue.
Following Reyes , the Southern District decided Farr . There, the defendant was charged with attempting to distribute methamphetamine under § 195.211. Farr , 978 S.W.2d at 448. On appeal, relying on Reyes , the defendant contended that the evidence was insufficient to convict because the State could not show that he had the "present ability" to consummate the crime attempted in that the substance distributed did not test for methamphetamine, and he did not have all the necessary ingredients at his house to enable him to make the substance. Id. at 449. The court agreed with the defendant and reversed his conviction, relying on Reyes . Id. at 450. In doing so, it found that:
Although not expressly stated in the opinion, Reyes essentially recognized the defense of "legal impossibility" as yet viable in Missouri for persons charged with class B attempts under § 195.211. The impossibility defense stems from the common law view that it is not a "crime to attempt to do that which is legally impossible to do."
Id. at 450 ( citing State v. Guffey , 262 S.W.2d 152, 156 (Mo.App. 1953)).
We would agree with the Farr court that Reyes does appear to recognize that "legal impossibility" is still a viable defense to common law attempt based on its recognition of a "present ability" requirement to convict. This would also seem to be in line generally with the holdings of the Missouri Supreme Court, discussed, supra, which, in requiring proof of a fourth element of common law attempt, the apparent possibility of commission of the crime, Olds , 603 S.W.2d 508, was, in our view, recognizing that under common law a defendant could not be guilty of an attempt if it was impossible to complete the object crime. Whether this is properly characterized as "legal impossibility," as opined by the Farr court, is subject to debate in that in Thomas , the supreme court, when referring to the fourth element of "apparent possibility," did not speak in terms of legal impossibility, but employed the phrase "inherent impossibility," which would arguably include factual impossibility. Thomas , 438 S.W.2d at 446 . In any event, because our quarrel with Reyes and Farr involves their holdings as to what evidence is required to establish the recognized fourth element of common law attempt and not how the element should be characterized technically, we need not address this issue.
In expressing our disagreement with Farr , we first note that it is factually distinguishable from Reyes in that Farr (1) involved the distribution of, not manufacturing of, methamphetamine; and (2) the act of delivery or distribution, albeit of a substance other than methamphetamine, had already been completed, unlike the act of manufacturing which had not been completed, but was allegedly contemplated, in Reyes . Farr , 978 S.W.2d at 448-49. This fact is significant, in that, unless there was additional evidence in Farr from which a reasonable jury could infer that the defendant planned subsequent "deliveries" of "real" methamphetamine, the Farr court, under a Reyes "present ability" analysis or what we perceive to be the correct analysis, "apparent possibility," as contemplated by Block and Thomas , would have been correct in holding that, as a matter of law, the evidence was insufficient to convict as charged. This is so because, without such additional evidence, it would have been both inherently and legally impossible for the defendant to complete the object crime, distribution of methamphetamine, preventing the jury from concluding from the evidence presented, as required for common law attempt under § 195.211, that he had the "apparent ability" to consummate the object crime of distributing methamphetamine. The problem with Farr , in our view, is that in applying the Reyes analysis, it did not discuss whether there was other evidence from which the jury could have inferred that the defendant had the "apparent ability" to manufacture or obtain real methamphetamine and distribute it. If such evidence was presented, then, in our opinion, a submissible case could have been made for common law attempt, under § 195.211, leaving the issue up to the jury to decide, in that, in light of such additional evidence, it could not be said reasonably that it was inherently or legally impossible for the defendant to complete the object crime of distributing methamphetamine.
In differing with Reyes and Farr as to the sufficiency of the evidence to satisfy the fourth element of common law attempt, the "apparent possibility of commission" of the crime, Olds , 603 S.W.2d at 508 , we primarily rely on the Missouri Supreme Court's holdings in Block and Thomas , which we believe are instructive and controlling. In Block , as noted, supra, the court explained the fourth element as:
"[t]o constitute an indictable attempt to commit a crime, its consummation must be apparently possible, or in other words, there must be at least an apparent ability to commit it; if the means employed are so clearly unsuitable that it is obvious that the crime cannot be committed, the attempt is not indictable."
Block , 62 S.W.2d at 430 (emphasis added) (citation omitted). Likewise, in Thomas , the court held that "[t]here must be at least an apparent ability to commit the crime, State v. Block, supra; it must be apparently possible." Thomas , 438 S.W.2d at 446 .
The defendant in Thomas was convicted of common law attempt to obtain money by means of a bogus check, in violation of § 561.450, RSMo 1959. Id. at 443. In determining on appeal whether the evidence was sufficient to convict, specifically to find that, at the time of the defendant's arrest, it was "apparently possible" for him to commit the crime or that he had the "apparent ability" to do so, the court looked at whether there was an "inherent impossibility" of his committing the crime, not his present ability to commit it. Id . at 446. In this respect, the court stated:
It is reasonable to conclude that but for the alertness of the store's representatives the crime would have been consummated; that there was no inherent impossibility but rather an apparent possibility of committing the crime; that the intervening circumstances which thwarted the consummation of the crime occurred as a result of the actions of third parties, acting apart from and independent of appellant's will and control.
Id . (emphasis added).
We believe that what the court was saying in Block and Thomas is that, to satisfy the fourth element of common law attempt, the apparent possibility of commission of the crime, it is sufficient for the State to show that, if the defendant had not been interrupted in his criminal pursuit, it was evident that it would have been possible for him to consummate the object crime of the attempt. This interpretation is not only consistent with the holdings in Block and Thomas , but the dictionary definitions of "apparent," "ability," and "possibility," "apparent" meaning " 1 readily seen; visible 2 readily understood or perceived; evident; obvious 3 appearing (but not necessarily) real or true; seeming," Webster's New World College Dictionary 65 (3d ed. 1997), "ability" meaning " 1 a being able; power to do (something physical or mental) 2 skill, expertness, or talent," Webster's New World College Dictionary 2 (3d ed. 1997), and "possibility" meaning " 1 the quality or condition of being possible" with "possible" being defined as " 1 that can be; capable of existing 2 that can be in the future; that may or may not happen 3 a) that can be done, known, acquired, selected, used, etc., depending on circumstances [a possible candidate ] b) that can happen or be; potential 4 that may be done; permissible 5 that may be a fact or the truth 6 [Colloq.] that can be put up with; tolerable." Webster's New World College Dictionary 1054 (3d ed. 1997) ; see American Healthcare Management, Inc. v. Director of Revenue , 984 S.W.2d 496, 498 (Mo. banc 1999) (holding that absent statutory definition, the plain and ordinary meaning of words may be derived from a dictionary). It is also consistent with the Missouri Supreme Court's holding in Molasky , where the court held that under § 556.150, which, as we discussed, supra, was found by the court to embody the common law, focused on what an actor still had to accomplish, instead of upon what the actor had already done, which is the focus of § 564.011. Molasky , 765 S.W.2d at 600 .
In State v. Miles , 510 S.W.2d 787 (Mo.App. 1974), this court followed the reasoning of Thomas in affirming the defendant's conviction for common law attempt of burglary. In Miles , the defendant contended that the evidence was insufficient to convict him of attempted burglary under § 556.150 because the State had failed to show that he had the apparent ability to commit burglary, in that entry was an essential element of the object crime, and "it was not immediately possible at the time of his apprehension for [him] to have entered the store." Id. at 789-90. His claim was premised on the fact that he had attempted to gain entry, but was unsuccessful. The court, in rejecting the appellant's claim, stated:
It has been held in Missouri that, to support an attempt conviction, there must be apparent ability to commit the crime and the crime must be apparently possible. State v. Thomas, 438 S.W.2d 441 (Mo. 1969). Defendant, in the present case, was apprehended directly in front of the store in question. He admitted that a prying tool found nearby belonged to him. The door which was pried was wooden and had on it fresh pry marks. Defendant cites no authority for his assertion that because it was not immediately possible at the time of his apprehension for defendant to have entered the store, the prosecution has failed to prove an essential element of the crime of attempted burglary. Under State v. Miller, 368 S.W.2d 353 (Mo. 1963), the requirement that there be an "apparent possibility" to commit the burglary was sufficiently met in the trial court under similar facts.
Id . at 790 (emphasis added).
In State v. Rogers , 959 S.W.2d 467 (Mo.App. 1997), decided by the Eastern District after Reyes , the defendant was charged with attempted robbery, under § 564.011. Id. at 467. The defendant had entered a restaurant and demanded the cashier to give him the money from the cash register, but it could not be opened without a key. Id. at 467-68. In order to open it, the cashier's supervisor threw the register keys to the cashier, but she failed to catch them. The keys fell to the floor and, after a brief search by the cashier, could not be found. The defendant then attempted to open the register without the key, but was unsuccessful. Id. at 468. On appeal, the defendant claimed that the evidence was insufficient to sustain his conviction for attempted robbery because the evidence demonstrated that the cash register drawer could not be opened and, thus, there was no evidence of an apparent possibility that he could commit the crime of robbery. Id. at 469. Although the defendant was charged with "substantial step" attempt under § 564.011, of which "apparent possibility or ability" to commit the object crime is not an element, the court's analysis of his claim was based on common law attempt. Id. at 468-69. In this context, the Eastern District found that:
Defendant further argues that the evidence did not show beyond a reasonable doubt that he had the "apparent possibility" to complete the robbery because the cash register could not be opened. The register could have been opened and would have been opened had the register keys not been tossed, missed and then lost on the floor behind the counter. After the register keys were lost, the employees testified that from inside the supervisor's office, they heard the register being rattled. Accordingly, with this evidence a reasonable jury could have found beyond a reasonable doubt that defendant intended to complete the robbery, thus enabling it to find defendant guilty of attempted robbery in the first degree.
Id . at 469. It is our view that the Eastern District was recognizing that the fourth element of common law attempt was the "apparent possibility of [commission] of the crime," as defined by the Missouri Supreme Court in Thomas , 438 S.W.2d at 446 , as being whether it was inherently impossible for the defendant to complete the object crime if given the opportunity.
Rogers would seem to be in conflict with later holdings of the Eastern District which cite with approval Reyes and/or Farr . See, i.e., Withrow , No. ED 73579, slip op. at 13-14 (Mo.App. July 13, 1999); Little , 986 S.W.2d at 925; State v. Bue , 985 S.W.2d 386, 389-90 (Mo.App. 1999); State v. Davis , 982 S.W.2d 739, 741 (Mo.App. 1998); State v. Motley , 976 S.W.2d 502, 505 (Mo.App. 1998).
In summary, we believe that the law of common law attempt, under § 195.211, assuming, as discussed, supra, that there is such an animal, does not require for conviction evidence of immediate or "present ability" to commit the object crime at the time of the defendant's arrest, as held by the Southern District in Reyes and Farr . Thus, to the extent that Reyes and Farr , and cases following it, hold that a defendant must have the "present ability" at the time of his or her arrest to commit the object crime in order to be guilty of common law attempt, under § 195.211, we decline to follow them. With respect to the ability to complete the object crime, we find that what is required is evidence of the apparent ability or possibility of commission of the crime, Olds , 603 S.W.2d at 508 , which requirement can be satisfied by presenting evidence that if the defendant had not been interrupted in his or her criminal pursuit, it was inherently and legally possible for the defendant to have completed the object crime of the attempt charged. Farr , 978 S.W.2d at 450-51; Rogers , 959 S.W.2d at 468-69; Miles , 510 S.W.2d at 789-90; Thomas , 438 S.W.2d at 446 . When such evidence is presented, assuming that the other three elements are satisfied, a submissible case is made by the State and the ultimate resolution of whether the requirement in question is satisfied is left to the jury.
Given our interpretation of common law attempt, under § 195.211, we find that the evidence, here, was sufficient to support a finding that the appellant had the apparent ability at the time of his arrest to manufacture methamphetamine. The manufacturing of methamphetamine is a criminal offense pursuant to § 195.211. We find nothing in the record to conclude that it was inherently or legally impossible for the appellant to commit this crime. Although at the time of his arrest he did not have the present ability to manufacture methamphetamine, due to the fact that he did not have all of the necessary ingredients, specifically, ephedrine, such was easily obtained. As the record suggests, ephedrine is commonly found in over-the-counter cold tablets or pills. The pills are crushed and the binding agent in them is separated from the ephedrine, which is then used to make methamphetamine. These cold pills are inexpensive and readily available at any retail store dealing in such products. There was nothing about the circumstances of the appellant that, as a matter of law, would have reasonably permitted the trial court to find that the appellant could not readily obtain the one missing ingredient necessary to manufacture methamphetamine, ephedrine, and thus, that it was inherently or legally impossible for him to commit the object crime of the attempt charged. As such, although at the time of his arrest the appellant did not possess all of the necessary ingredients to manufacture methamphetamine, we believe that there was, as a matter of law, sufficient evidence from which a reasonable jury could infer that he had the "apparent ability" to manufacture methamphetamine and, as such, to convict him for an attempt to do so, under § 195.211. Thomas , 438 S.W.2d at 446; Block , 62 S.W.2d at 430 . Hence, we find no plain error on the face of the appellant's claim, and, thus, decline plain error review under Rule 30.20.
In holding as we do, we do not mean to suggest that the fact the appellant did not possess, at the time of his arrest, one of the necessary ingredients to manufacture methamphetamine was not probative or significant. On the contrary, this would obviously be a fact the defense would want to argue to the jury in contending that not only did the appellant not have the apparent ability to commit the object crime, but did not have the necessary intent to commit the crime and/or did not commit an overt act toward its commission, the first and second elements of common law attempt. Olds , 603 S.W.2d 508. See, e.g., State v. Morrow , No. WD 55784, slip op. at 7 (Mo.App. May 18, 1999, as modified , June 29, 1999) (holding that the evidence was insufficient to convict, under § 564.011, because the defendant's possession of four ingredients and one piece of equipment required to manufacture methamphetamine was insufficient to prove that he intended to manufacture methamphetamine); Motley , 976 S.W.2d at 506 (holding that the evidence was sufficient to convict for an attempt under § 564.011, although the defendant did not have all of the necessary ingredients to manufacture methamphetamine, but evidence of some ingredients and pieces of equipment found in the defendant's possession, in addition to other evidence, was sufficient to support a finding that he had the necessary intent to manufacture methamphetamine). What we do hold by this opinion is the fact alone that a defendant does not possess one of the ingredients necessary to manufacture methamphetamine does not, as a matter of law, in and of itself, render it "inherently or legally impossible" for the defendant to complete the crime of manufacturing methamphetamine such that the evidence would be insufficient to convict him or her of the common law attempt to commit the crime, under § 195.211.
The appellant did not raise the sufficiency of the evidence to support these elements.
Point denied.
II.
In Point II, the appellant claims that the trial court plainly erred in submitting jury instruction 5, the State's verdict directing instruction for an attempt to manufacture a controlled substance under § 195.211, because it deprived him of due process of law in that the instruction did not instruct the jury as to the definition of "attempt" as that term is used in § 195.211 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. The State contends that, because, in response to the trial court's inquiry at the instruction conference as to whether the appellant's trial counsel had any objection to the giving of the verdict director submitted by the State, he answered no, the appellant affirmatively waived any claim of error, plain or otherwise, pertaining to the giving of instruction 5. The appellant admits that he did not preserve his claim of error as to jury instruction 5 for appellate review. However, he seeks plain error review under Rule 30.20.
The record reflects that at the instruction conference, the trial court asked expressly whether the appellant's trial counsel had any objection as to any of the jury instructions submitted by the State, which would include instruction 5. The appellant's trial counsel replied, "No, I do not." His response constituted an affirmative waiver by the appellant of any claim of error as to the giving of instruction 5 and, as such, we decline to review for plain error under Rule 30.20. State v. Howard , 615 S.W.2d 498, 500 (Mo.App. 1981). See also State v. Stevens , 949 S.W.2d 257, 258 (Mo.App. 1997) (holding that when the defendant's trial counsel stated 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); State v. Zelinger , 873 S.W.2d 656, 660 (Mo.App. 1994) (holding that the defendant's counsel's response of no objection at the time photographs were offered into evidence constituted an affirmative waiver of any objection to their introduction and the issue did not qualify for plain error review); State v. Scott , 858 S.W.2d 282, 285 (Mo.App. 1993) (holding that the defendant's counsel's response of "no objection" to the offer of a knife into evidence at trial was an affirmative waiver of any objection to its introduction and the matter would not be considered under the plain error doctrine); State v. Starr , 492 S.W.2d 795, 801 (Mo. banc 1973) (holding that the defendant's trial counsel's statement that he did not object to the introduction of a revolver into evidence at trial constituted an affirmative waiver of his claim of error on that issue on appeal and, as such, it would not be considered for plain error review). As opposed to a simple failure to object to the giving of the instruction, which may or may not have warranted plain error review, the express statement on the part of the appellant's trial counsel that he had no objection to the giving of instruction 5 affirmatively waived plain error review of the issue. Stevens , 949 S.W.2d at 258 .
Point denied.
III.
In Point III, the appellant claims 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, as opposed to § 195.211, because it deprived him of due process of law in that it was a lesser-included offense of an attempt to manufacture a controlled substance under § 195.211. Specifically, he contends that because the evidence was insufficient to show that he had the "present ability" to manufacture methamphetamine at the time of his arrest, an essential element of the offense of attempt to manufacture a controlled substance under § 195.211, the court was required to submit an instruction for the lesser-included offense of attempt to manufacture a controlled substance under § 564.011.
The appellant concedes that he did not preserve for appellate review the issue raised in his Point III and asks for plain error review under Rule 30.20. As discussed, supra, the first step of plain error review is to determine whether the claim for review "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted.'" Brown , 902 S.W.2d at 284 . Even assuming, arguendo, that §§ 195.211 and 564.011 contemplate two types of attempt, with the latter being a lesser included of the former, for the reasons discussed, infra, we find that the appellant's claim does not facially establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted and, thus, we decline to exercise our discretion to review for plain error.
"When a defendant requests a lesser included offense instruction, the trial court errs in not giving the instruction if there is a basis for both an acquittal of the higher offense and a conviction of the lesser included offense." State v. Fowler , 938 S.W.2d 894, 898 (Mo. banc 1997); State v. Dexter , 954 S.W.2d 332, 343 (Mo. banc 1997); State v. Barnard , 972 S.W.2d 462, 464 (Mo.App. 1998). However, if a defendant does not specifically request a lesser-included offense instruction, the defendant cannot complain about the trial court's failure to give the instruction. Fowler , 938 S.W.2d at 898 . As such, a trial court will not be convicted of error, plain or otherwise, for failing to give, sua sponte, a lesser-included offense instruction where the defendant did not request it. Id. ; Dexter , 954 S.W.2d at 344; State v. Kobel , 927 S.W.2d 455, 460 (Mo.App. 1996).
A trial court will not be convicted of plain error for failing to give a lesser-included offense instruction where the defendant did not request it because frequently a defendant will decide not to request a lesser-included offense instruction for strategic purposes. Dexter , 954 S.W.2d at 344; Fowler , 938 S.W.2d at 898; Kobel , 927 S.W.2d at 460 . "A tactical decision not to request the lesser included offense instruction is based upon the belief that the jury may convict of the lesser offense if it is submitted, but the jury may not convict the defendant of any crime if the lesser offense is not submitted." Fowler , 938 S.W.2d at 898 . Thus, "[w]hen the failure to request a lesser-included instruction is a matter of strategy, the [trial] court should not second guess the defendant's counsel. Rather, the defendant may determine whether he [or she] will give the jury an 'all or nothing' choice, or request submission of lesser-included offense instructions." Dexter , 954 S.W.2d at 344 . Having made the determination not to request submission of a lesser-included offense instruction, the defendant shall be held to accept the consequences of his or her decision. Id.
In this case, the appellant's defense theory was that he did not commit the crime and was not involved in any attempt to manufacture methamphetamine. The appellant's failure to request submission of an instruction on "substantial step" attempt to manufacture a controlled substance, under § 564.011, is in keeping with his theory of the case. As such, it is logical to infer that his decision not to seek a lesser-included offense instruction was reasonable trial strategy. Dexter , 954 S.W.2d at 343-44 . For this reason, we find that the appellant's claim that the trial court plainly erred in failing to submit to the jury, sua sponte, an instruction for the claimed lesser-included offense of attempt to manufacture a controlled substance pursuant to § 564.011 does not facially establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. Brown , 902 S.W.2d at 284 ; Dexter , 954 S.W.2d at 344; Kobel , 927 S.W.2d at 460 . As such, we decline plain error review.
Point denied.
Conclusion
The judgment of the circuit court of appellant's conviction of attempt to manufacture a controlled substance, methamphetamine, in violation of § 195.211, is affirmed.
All concur.