State v. Withrow

Citation8 S.W.3d 75
Parties(Mo.banc 1999) . Supreme Court of Missouri State of Missouri, Respondent, v. Michael R. Withrow, Appellant. Case Number: SC81820 Handdown Date:
Decision Date07 December 1999
CourtUnited States State Supreme Court of Missouri

Appeal From: Circuit Court of Monroe County, Hon. Carroll M. Blackwell, Judge

Counsel for Appellant: Daniel L. Veits

Counsel for Respondent: John M. Morris and Breck K. Burgess

Opinion Summary:

Michael Withrow was arrested in a house near a room with a locked closet containing ingredients for and in primary stage methamphetamine production. He was convicted of attempting to manufacture methamphetamine in violation of section 195.211.

REVERSED AND REMANDED.

Court en banc holds:

Section 564.011 creates a separate offense of an attempt to commit an offense by taking a substantial step toward it. Common law attempt is where a substantive offense is defined as attempting to commit a specific offense. A number of cases have incorrectly merged the four elements of common law attempt into substantial step attempt, and they should no longer be followed.

An attempt to commit an offense, regardless of whether the attempt is under section 564.011 (requiring an intent to commit an offense and a substantial step toward it) or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense. To the extent State v. Reyes,is inconsistent with this opinion, it and its progeny are overruled. The question then becomes whether the evidence shows Withrow committed a substantial step toward the manufacturing of methamphetamine.

The evidence, at best, indicates Withrow was frequently in a house where there was an ongoing attempt to manufacture methamphetamine. The evidence does not support that he had constructive possession over the bedroom, the locked closet, or their contents. No evidence demonstrated he lived at the house. Nothing beyond being present in the room truly connects Withrow to the manufacturing apparatus.

In the absence of constructive possession or that the defendant actually placed the pills in the liquid or otherwise possessed the materials to commence drug-making, the evidence is insufficient to demonstrate his participation in a substantial step necessary to demonstrate an attempt to manufacture the drug.

Opinion Author: John C. Holstein, Judge

Opinion Vote: REVERSED AND REMANDED. All concur.

Opinion:

Opinion modified by Court's own motion on December 28, 1999. This substitution does not constitute a new opinion.

A Monroe County jury convicted Michael Withrow of attempting to manufacture methamphetamine in violation of sec. 195.211, RSMo (1994).1 Withrow was found to be a prior and persistent offender. He was sentenced to eighteen years imprisonment. Pursuant to an order of a dissenting judge of the Missouri Court of Appeals, Eastern District, the case was transferred here. Rule 83.01. Defendant raises seven points on appeal. The first asserts that evidence was insufficient to establish a finding that defendant constructively possessed any materials used to manufacture methamphetamine. Because such possession is essential to his conviction, he asserts a motion for judgment of acquittal should have been sustained. The first issue is dispositive, and only it is addressed. Defendant's conviction is reversed.

I.

This Court reviews the facts in the light most favorable to the verdict. State v. Clark, 981 S.W.2d 143, 145 (Mo. banc 1998). In doing so, it affords the state the benefit of all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. State v. Simmons, 955 S.W.2d 752, 764 (Mo. banc 1999).

On two evenings in January 1997, officers of the Northeast Missouri Narcotics Task Force engaged in the surveillance of a suspected "drug house" in Hannibal, Missouri. Over these two evenings, the officers witnessed approximately thirty people coming and going from the house. On average, each person stayed for only three to five minutes. Officers also observed the porch light being turned on and off, apparently indicating the drug house was either open or closed for business. Over this period, Withrow was seen coming and going from the house on about five or six occasions. An officer recalled seeing Withrow's car parked in front of the house at least two times over the two-day period.

Officers then obtained a search warrant for the house and proceeded to execute it on January 25. They knocked on the front door and announced their presence. From inside, they could hear movement, yet no one answered the door. The officers were forced to breach the door. While climbing the stairs, the officers saw defendant leave the east bedroom and approach the top of the staircase with his hands raised. That bedroom emitted a solvent-like odor, commonly associated with the production of methamphetamine.

Upon further investigation, officers discovered a locked closet in the east bedroom containing a sealed glass jar with a milky liquid and heavy white sediment along the bottom. The jar's contents were indicative of the primary stage of methamphetamine production. In addition to the jar, police found bottles of pseudoephedrine pills, lithium batteries, grain alcohol, and distilled water, all ingredients used to manufacture methamphetamine. Police seized the pills and batteries from the locked bedroom closet. The grain alcohol and distilled water were located somewhere in the bedroom. However, officers were uncertain as to the exact location of the distilled water, and the record fails to indicate whether officers found the grain alcohol in the closet or elsewhere in the bedroom. Also discovered in the room was a propane tank with an adapter used to store a further methamphetamine ingredient, anhydrous ammonia. Coffee filters, glass cookware, a hotplate, and a plastic jug with plastic tubing, also used in the production of the drug, were present either in the closet or the east bedroom. Firearms and ammunition were present in the room. Across the hall, in the west bedroom, officers seized weighing scales, seven syringes (one of which contained a clear liquid), a spoon, and a marijuana pipe. Police also recovered a recipe for making methamphetamine in the house. Lastly, police obtained a September 1996 letter from the west bedroom addressed to defendant at a residence at which he had not lived since 1993.

II.

As previously noted, defendant's first point challenges the sufficiency of the evidence. Because this point was first raised by the court of appeals in its opinion, review is for plain error. Rule 30.20. If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted. State v. McClunie, 438 S.W.2d 267, 268 (Mo. 1969). Defendant claims the evidence was insufficient to demonstrate an attempt to manufacture drugs warranting submission to the jury. He was charged and convicted under sec. 195.211 for attempted manufacture of methamphetamine.

A.

To determine whether evidence is sufficient to convict a person of attempt to manufacture methamphetamine under sec. 195.211, it is first essential to define what constitutes an "attempt" as it is used in that section. The general statute regarding the inchoate offense of attempt to commit an offense is found in sec. 564.011. It provides:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

It goes on to indicate that "unless otherwise provided," the punishment for attempt will be classified generally one step below the class of the completed offense.2. Id.

In State v. Reyes, 862 S.W.2d 377, 384 (Mo. App. 1993), the court of appeals noted that sec. 564.011 does not purport to define an element of any specific offense but rather creates a separate offense of an "attempt to commit an offense." Id. at 384. From that premise, the court of appeals reasoned that the only way to treat sec. 564.011 as defining attempt was to construe it to define attempt. After reviewing numerous canons of construction, the court of appeals concluded that when used in connection with a specific statute proscribing not only specific conduct but also an attempt to commit such conduct, the word attempt 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: (1) common law attempt, where a substantive offense is defined as attempting to commit a specific offense, and (2) "substantial step" attempt where the state proceeds under sec. 564.011. Thus, a charge of attempted manufacture of methamphetamine might be a class B felony if charged under sec. 195.211 or a class C felony if charged under sec. 564.011. As noted in Reyes, common law attempt had four separate elements: (1) the intent to commit a crime; (2) an overt act toward its commission; (3) failure of consummation, and (4) the apparent possibility of commission. Id. at 383 (citing State v. Thomas, 438 S.W.2d 441, 446 (Mo. 1969)). Under Reyes, common law attempt was the more difficult offense to prove in that it required an overt act showing that the defendant's conduct nearly approached consummation of the offense, not just a substantial step toward the completed offense. Id. at 384. Substantial step attempt was, in effect, a lesser included offense of common law attempt.

Perhaps as a result of the confusion caused by recognizing two forms of attempt, a number of cases have incorrectly merged the four elements of traditional common law attempt into the standard of substantial step...

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