State of Missouri, Respondent, v. Michael R. Withrow, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Michael R. Withrow, Appellant. Case Number: 73579 Handdown Date: 07/13/1999 Appeal From: Circuit Court of Monroe County, Hon. Carroll M. Blackwell Counsel for Appellant: Dan Viets Counsel for Respondent: Breck K. Burgess Opinion Summary: Michael R. Withrow appeals from a judgment entered on his conviction by a jury of attempt to manufacture methamphetamine in violation of section 195.211 RSMo 1994. REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT OF ACQUITTAL AND ORDER DEFENDANT DISCHARGED; APPEAL TRANSFERRED TO MISSOURI SUPREME COURT BY DISSENTING JUDGE PURSUANT TO RULE 83.01. Division Two holds: The trial court plainly erred in denying Withrow's motion for judgment of acquittal and in submitting the case to the jury because there was insufficient evidence to convict Withrow of a class B felony of attempt to manufacture methamphetamine. The state failed to prove that Withrow constructively possessed the equipment used in the manufacturing of methamphetamine. Alternatively, the evidence was insufficient to establish that Withrow "nearly consummated" the offense. The dissent would find that the state made a submissible case. Citation: Opinion Author: James R. Dowd, Presiding Judge Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT OF ACQUITTAL AND ORDER DEFENDANT DISCHARGED; APPEAL TRANSFERRED TO MISSOURI SUPREME COURT BY DISSENTING JUDGE PURSUANT TO RULE 83.01. Crahan, J., dissents in separate opinion. Teitelman, J., concurs.

Opinion: Opinion modified by Court's own motion on July 20, 1999. This substitution does not constitute a new opinion. Michael R. Withrow appeals from a judgment entered on his conviction by a jury of attempt to manufacture methamphetamine in violation of section 195.211 RSMo 1994,(FN1) a class B felony. Factual Background For part of each of the days of January 23 and 24, 1997, officers of the Northeast Missouri Task Force conducted surveillance on a house at 519 Church Street in Hannibal, Missouri. During this time, officers observed approximately thirty people coming in and out of the house. The numerous arrivals and departures indicated to the officers that the residence could be a "dope house." Withrow's car was parked in front of 519 Church Street several times during the surveillance period, and officers observed Withrow coming and going from the residence five or six times during that time. Officers executed a search warrant for the premises at approximately 9:21 p.m. on January 25, 1997. The officers approached the house and "knocked and announced." When the officers heard movement inside of the house but received no answer, they breached the front door. Once inside, one officer noticed Withrow exit the east bedroom on the second floor and then stand at the top of the stairs with his hands raised above his head. Also present in the house were Elisha Davis, Lisa Ledbetter, and William Motley. The officers arrested everyone in the house and conducted a search of the premises. Two bedrooms were located on the second floor, one to the east and one to the west. Officers detected a strong odor of solvent coming from the east bedroom. In the east bedroom, officers discovered clear plastic tubing, brass fittings, a bottle of distilled water, and thirty-five lithium batteries. A padlocked closet in the east bedroom, which Sergeant Rader testified he opened by removing the pins from the side of the door, contained the following items: seventeen bottles of ephedrine-brand pseudoephedrine; two 6-volt lithium batteries, glass cookware, coffee filters, a sealable glass mason jar containing a liquid, a plastic cork jug, a brown bag containing a pair of rubber gloves and a clear plastic bottle, a portable burner, a propane tank, an adapter for an LP gas grill tank to accept anhydrous ammonia, a bottle of distilled water, a plastic Tupperware container with clear plastic tubing, a funnel, and a letter addressed to William Motley at 519 Church Street. The record is unclear as to whether a plastic bag, a container of mineral spirits, and a screwdriver were found inside the closet; however, we will assume these items were found outside of the closet. In addition, the officers found six firearms and ammunition in the east bedroom. No anhydrous ammonia was recovered. Officers searching the west bedroom found six empty syringes, one syringe containing a clear liquid, a spoon,

scales, a marijuana pipe, and a letter addressed to Withrow at 424 S. Seventh Street in Hannibal. Officers also found a Missouri Department of Corrections identification card for Elisha Davis laying on top of a recipe for manufacturing methamphetamine; however, the record is unclear where in the residence these items were recovered. No fingerprints were taken from any items found on the premises. A search of Withrow's person revealed no key to either the residence or the padlock on the door of the east bedroom closet and no drug paraphernalia. Withrow made no statement to police at the time of his arrest. At the close of all evidence, Withrow filed a written motion for judgment of acquittal. The trial court denied the motion and submitted the case to the jury. The jury found Withrow guilty of attempt to manufacture a controlled substance but did not recommend a sentence because the trial court had previously found Withrow to be a prior and persistent offender. The trial court sentenced Withrow to a term of imprisonment of eighteen years. In a post-trial motion, Withrow argued that the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to establish that he was guilty of attempt to manufacture a controlled substance. The trial court denied Withrow's motion. This appeal followed. Analysis We decline to address the points raised by Withrow in his appeal. Instead, we examine whether the court committed plain error in submitting the case to the jury.(FN2) It is plain error to submit a case on evidence insufficient to make a submissible case. State v. Nations, 676 S.W.2d 282, 283 (Mo.App. E.D.1984); State v. Rivers, 554 S.W.2d 548, 550 (Mo.App. 1977). In considering whether the evidence is sufficient to support the jury's verdict, we must look to the elements of the crime and consider each in turn. [W]e are required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). A.Constructive Possession To convict a defendant of attempt to manufacture a controlled substance the state must prove the defendant possessed equipment used in the manufacture of a controlled substance. State v. Condict, 952 S.W.2d 784 (Mo.App. S.D.1997). This principle is based on the simple logic that an individual cannot manufacture a controlled substance without possessing the necessary materials and equipment. A finding of possession requires proof that the defendant (1) had either conscious or intentional possession of the equipment necessary to manufacture methamphetamine, either

actual or constructive, and (2) was aware of the presence and nature of the equipment. Cf. State v. Reynolds, 669 S.W.2d 582, 584 (Mo.App. E.D.1984). Absent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the equipment. Cf. State v. Jeffries, 858 S.W.2d 821, 824 (Mo.App. E.D.1993). At a minimum, constructive possession requires evidence that the defendant had access to and control over the premises in which the equipment is found. Cf. id. If the defendant has exclusive control of the premises in which the equipment is found, it may be inferred that the defendant exercised control over the equipment. Cf. State v. Barber, 635 S.W.2d 342, 343 (Mo. 1982). However, if there is joint control of the premises, some additional evidence connecting the defendant with the equipment is required. Cf. id. at 343-44. Here, there is no evidence that Withrow had exclusive control of the premises or actually possessed the equipment found in the east bedroom closet. Therefore, to establish constructive possession, the state must prove that Withrow had access to and control over the premises and, because other persons were found on the premises, the state must present additional evidence connecting Withrow with the equipment. Cf. id. In addition, the state must prove that Withrow was aware of the presence and nature of the equipment. Viewed in a light most favorable to the verdict, the evidence linking Withrow to the offense charged is as follows: During the surveillance period, officers observed Withrow and roughly thirty other individuals coming to and going from the residence at 519 Church Street on several occasions; Withrow's car was parked in front of the residence for several hours; when the search warrant was executed, Withrow and three other individuals were found in the residence; Withrow was walking out of a bedroom that contained a closet in which equipment used to manufacture methamphetamine was discovered; a strong odor of solvent was present in the bedroom; and a letter addressed to Withrow at a different address was found in the west upstairs bedroom. We are guided by State v. Reynolds, 669 S.W.2d 582 (Mo.App. E.D.1984). In Reynolds, the defendant was charged with possession of controlled substances. While conducting surveillance on a residence at 7705 W. Bruno, officers observed the defendant coming in and out of the house on four or five occasions; several other individuals were also seen coming and going. When the officers entered the residence pursuant to a search warrant, they found the defendant, another man, and three women. A search of the premises revealed a small bucket on a coffee table in the living room containing a bag filled with various controlled substances. In the residence's only bedroom, police officers found an envelope addressed to the defendant at 7705 W. Bruno, a business reply mail card with a return address of Chuckee Reynolds (presumably the defendant's nickname) at 6204 Storey Court, and a checkbook with the defendant's

name on it with checks bearing the Storey Court address. Nine days after the search of the residence, the defendant was arrested on an unrelated charge and gave 7705 W. Bruno as his address. On appeal, the court concluded that there was insufficient evidence to establish that the defendant constructively possessed the controlled substances: There was no testimony to the effect that defendant owned or rented the house. Several other people who were on the premises at the time of the search lived elsewhere. . . . . The state failed to produce evidence that defendant was either owner or lessee of the premises; the addresses shown on the checkbook and mail card indicated he was neither. If defendant were a guest in the residence on Bruno, his mere presence on property where drugs are discovered, absent proof of his exclusive use or possession of the premises, would be insufficient to sustain a conviction of possession of controlled substances. Even if there were evidence from which the jury could have concluded that defendant was a joint tenant of the premises, the state is required to show additional incriminating facts "to buttress an inference of defendant's knowledge of the presence of the controlled substance." This the state has failed to do. The drugs were found inside a bag within a bucket in a room to which four other persons had access. The only showing that the state has made is that defendant may have had joint control of the premises and defendant's "proximity to persons or locations with drugs about them." Without evidence of corroborating, incriminating circumstances beyond joint control of the premises, we must conclude that there is insufficient evidence of constructive possession and, thus, no submissible case. Id. at 584 (internal citations and quotations omitted). As in Reynolds, we conclude the state has failed to make a submissible case on the issue of constructive possession. Most of the items that could have been used in the manufacture of methamphetamine were found in the east bedroom closet. There was conflicting evidence on whether or not the closet door was locked; however, we fail to perceive the significance of whether or not the door was locked. One might argue that if the door was unlocked, Withrow had access to the equipment. Even if this contention is valid, the state failed to present any additional evidence connecting Withrow to the equipment. Proof that Withrow resided at 519 Church Street might constitute additional evidence, but the state has failed to establish this fact. At best, the evidence offered by the state demonstrates that Withrow was present in a house in which there was an ongoing attempt to manufacture methamphetamine. Accordingly, the trial court erred in submitting the case to the jury. The state argues that the following evidence supports a finding of constructive possession: the large quantity of material that was used in the manufacture of methamphetamine, the strong odor of solvent emanating from the east bedroom, the firearms found in the east bedroom, the seven syringes, numerous sets of scales, and marijuana pipe found in the west bedroom. Although this evidence may be relevant to the second element of possession (awareness of the presence and nature of the equipment), it has no bearing on the issue of whether Withrow had access to or control over

the premises or was in some way connected with the equipment. We reject the state's invitation to engage in inference stacking by finding that reasonable jurors could have inferred that when Withrow heard the police knock on the front door, "he went into the west [sic] bedroom, closed the closet door, locked the padlock, and then walked out of that room as the officers came up the stairs to the second floor." We believe these inferences are untenable absent additional evidence such as a witness heard the closet door close, that the closet was unlocked and open prior to Withrow entering the east bedroom, that the closet door was locked and Withrow possessed the key, or that Withrow's fingerprints were on the closet door or the padlock. See State v. Nobles, 699 S.W.2d 531, 533 (Mo.App. E.D.1985). We respectfully disagree with the dissent's view that the state has presented a submissible case. Essentially, the

closet, (2) the letter found in the west bedroom, and (3) the adverse inference arising from his failed attempt to prove that he lived somewhere other than 519 Church Street. We address each of these contentions in turn. Access to the Equipment The dissent argues that the standard of review compels this Court to assume the closet was unlocked. According to the dissent, we are forced to reach this conclusion based on the testimony of Sergeant Inglima. In response to a question posed by defense counsel as to whether the closet door was locked, Sergeant Inglima testified as follows: "As I recall, there was a hasp on there for a lock. But I--I do not believe that--that we--We did not have to break the door open. I do not believe there was a lock on the--the door at the time." On redirect examination, however, the prosecutor asked Sergeant Inglima whether the closet door may have been opened outside of his presence. Sergeant Inglima responded that it could have been. The testimony of other officers was that the closet door was locked. Sergeant Rader recalled that the closet door was padlocked and that he had to remove the pins from the door's hinges to gain access to its contents. In addition, not only was this appeal briefed on the premise that the closet door was locked, both the prosecutor and defense counsel argued to the jury that the closet door was locked. Specifically, the prosecutor argued to the jury as follows: Now, there has been some testimony about a lock on the closet door upstairs. And I'll tell you I don't know who locked that door, but I know that there were people downstairs when the police officers knocked and announced that they were police. And I know that--And you heard them say there were people moving around. And when they broke in the door, they found this Defendant coming out of that bedroom. It is certainly possible and you could certainly infer that he went up there and locked that door so the police wouldn't look in there. It didn't stop them. They're smarter than that. They took the hinges off and opened it the other way . . . . Under these circumstances, no reasonable juror could have concluded that the closet door was unlocked. See Grim, 854

S.W.2d at 411. Accordingly, we assume the closet door was locked.(FN3) The dissent would also infer that Withrow participated in the attempt to manufacture methamphetamine based on the evidence that he was alone in the east bedroom with the equipment in the closet and several guns lying on the floor. This inference is based on the premise that unless Withrow was a participant in the manufacture of methamphetamine, he would not have been allowed to enter the east bedroom. Under our standard of review, we are required to accept as true only inferences that may be reasonably drawn from the evidence. State v. Friend, 936 S.W.2d 824, 828 (Mo.App. S.D.1996). In our view, there are many other plausible reasons why Withrow was in the east bedroom. For example, Withrow may have been a regular customer or a friend of those involved in the manufacture of methamphetamine. Accordingly, his access to the east bedroom would not have been a concern to those taking part in the manufacturing of methamphetamine. The Letter The letter addressed to Withrow at 424 S. Seventh Street does not constitute evidence that Withrow lived at 519 Church Street. See Reynolds, 669 S.W.2d at 584 (finding that the state failed to establish defendant's residency even though the state produced a letter personally addressed to defendant at the residence where the controlled substances were found). Further, we cannot agree that an individual lives wherever a letter addressed to him at a different address is found. This is contrary to common experience which indicates that casual visitors often bring personal belongings to another's home without intending to set up a permanent residence. Adverse Inference The jury was not entitled to draw an adverse inference based on Withrow's failure to affirmatively prove where he lived. Under the adverse inference rule, the state may comment on the defendant's failure to call a witness peculiarly available to the defendant. State v. Neil, 869 S.W.2d 734, 739 (Mo. banc 1994); State v. Hopkins, 947 S.W.2d 826, 829 (Mo.App. W.D.1997). A witness is "peculiarly available" to a party if the witness can reasonably be expected to testify favorably for that party. Neil, 869 S.W.2d at 739. As his sole witness, Withrow called Captain Shinn, one of the officers who participated in the execution of the search warrant. Defense counsel handed Captain Shinn a certified copy of a traffic ticket issued to Withrow in August

1. The ticket showed Withrow's address as 2924 Market Street. When defense counsel asked whether he knew any

reason why Withrow may not have lived at that address when the ticket was issued, Captain Shinn responded that a woman he arrested in early October 1997 had claimed that Withrow never lived there. As a preliminary matter, we note this evidence has virtually no relevance as to Withrow's residency on the date of

his arrest. Given the length of time that had elapsed since the issuance of the traffic ticket, the ticket does not establish that Withrow lived at 2924 Market Street on January 25, 1997, the date of his arrest. Likewise, the fact that Withrow did not live at 2924 Market Street in October 1997 does not mean that he did not live there on January 25, 1997. Although Captain Shinn testified that the woman he arrested claimed Withrow never lived at 2924 Market Street, the record is silent as to how long she had lived at that address. Thus, Captain Shinn's testimony on this issue is, at best, of minimal relevance. Allowing the jury to draw an adverse inference under the facts of this case would impermissibly expand the adverse inference rule by shifting the burden of producing evidence to the defendant. In a criminal case, the state has the burden of proving the defendant's guilt beyond a reasonable doubt. The term "burden of proof" refers to two different concepts: the burden of persuasion and the burden of producing evidence. The burden of persuasion is "on the party with the burden of proof to convince the trier of fact of all elements of his case." Black's Law Dictionary 197 (6th ed. 1990). The burden of producing evidence is "[t]he burden of introducing some evidence on all the required elements of the crime . . . to avoid the direction of a verdict against the party with the burden of proof." Id. The adverse inference rule cannot serve as a substitute for the state's obligation to present sufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt. 2 McCormick on Evidence, sec. 264, at 188 (4th ed. 1992) ("The burden of producing evidence of a fact cannot be met by relying on this 'presumption.' Rather, its effect is to impair the value of the opponent's evidence and to give greater credence to the positive evidence of the adversary . . . ."). Here, the only evidence offered by the state that Withrow lived at 519 Church Street was his presence at the residence for several hours during the surveillance period and the letter addressed to him at 424 S. Seventh Street found in the west upstairs bedroom. Withrow's mere presence in the residence coupled with the letter is wholly insufficient to prove that Withrow lived at 519 Church Street. Because the state has failed to produce sufficient positive evidence establishing that Withrow lived at 519 Church Street, the adverse inference rule is inapplicable.(FN4) B.Attempt Withrow also argues that the record contains insufficient evidence for the jury to conclude beyond a reasonable doubt that he "nearly approached the consummation of the offense" of manufacturing methamphetamine in violation of section 195.211. We agree. When charging a defendant with attempt to manufacture a controlled substance, the state may charge the defendant with either a class B felony under section 195.211 or a class C felony under section 564.011.(FN5) As used in section 195.211, attempt bears the common law meaning and requires that the defendant "nearly approach the

consummation" of the offense.(FN6) State v. Bue, 985 S.W.2d 386, 389 (Mo.App. E.D.1999). Section 564.011 creates a broader inchoate attempt offense with a lower range of punishment than common law attempt, and requires the defendant to take "a substantial step towards the commission of the offense." According to Withrow, he could not have the "present ability" to manufacture methamphetamine because no anhydrous ammonia, an ingredient essential to the manufacture of methamphetamine, was found at 519 Church Street. In support of this contention, Withrow relies on State v. Farr, 978 S.W.2d 448 (Mo.App. S.D.1998). In Farr, the defendant was charged with attempt to distribute methamphetamine in violation of section 195.211. Officers found all of the items necessary to manufacture methamphetamine except anhydrous ammonia in the defendant's home. The court found that the state must prove the defendant had the "present ability" to consummate the offense in order to be convicted of common law attempt. Id. at 450 (citing State v. Reyes, 862 S.W.2d 377, 387 (Mo.App. S.D.1993)). Because the defendant could not produce methamphetamine without anhydrous ammonia, the court concluded that it was legally impossible for the defendant to consummate the offense and therefore the state did not make a submissible case. Id. The situation here is identical. Officers recovered no anhydrous ammonia from 519 Church Street, and the evidence established that anhydrous ammonia was essential to the completion of the second step of the four step process of manufacturing methamphetamine. For there to be "near consummation" of the offense, the defendant must have the "present ability" to consummate the offense. Farr, 978 S.W.2d at 450; State v. Motley, 976 S.W.2d 502, 505 (Mo.App. E.D.1998); Reyes, 862 S.W.2d at 387. Because no anhydrous ammonia was recovered from the residence, Withrow did not have the present ability to consummate the offense of manufacturing methamphetamine. Accordingly, there is insufficient evidence to support a finding that Withrow committed the common law offense of attempt to manufacture methamphetamine under section 195.211. Further, this result is consistent with our prior decisions in the appeals of Motley and Davis, who were arrested at the same time as Withrow. See State v. Davis, 982 S.W.2d 739 (Mo.App. E.D.1998); State v. Motley, 976 S.W.2d 502 (Mo.App. E.D.1998). Motley and Davis were charged, tried, and sentenced under section 195.211. The trial court, however, gave the jury the verdict director used to submit a section 564.011 "substantial step" attempt. The juries in Motley and Davis thus found the defendants guilty of class C felonies; however, the trial court sentenced the defendants as though they had been convicted of class B felonies under section 195.211. Considering the same laboratory equipment and chemicals as in this case, we concluded that although the evidence supported a finding that Motley and Davis committed a "substantial step" attempt, the evidence was insufficient to support a finding that they "nearly consummated" the offense. Davis, 982 S.W.2d at 741; Motley, 976 S.W.2d at 505. To now hold that Withrow nearly

consummated the manufacture of methamphetamine would be entirely inconsistent with our prior decisions. Conclusion Because the record lacks sufficient evidence to support Withrow's conviction, we do not remand the case for a new trial. Reynolds, 669 S.W.2d at 584. The judgment of conviction is reversed. The cause is remanded with instructions to enter a judgment of acquittal and order Withrow discharged. Footnotes: FN1. All statutory references are to RSMo 1994. FN2. Although defense counsel preserved this issue throughout trial, he failed to include it as a point of error in his appellate brief. After oral arguments, we requested the parties to file supplemental briefs on the issues addressed in this opinion. FN3. Even assuming that the jury was entitled to infer that the closet door was unlocked, the evidence is clear that the door was closed. Thus, the equipment was not in plain sight or within Withrow's reach. FN4. Of course, the state is not required to prove that a defendant resides where the attempt to manufacture a controlled substance is taking place. In this case, however, Withrow's residency is believed to be significant because it is the only evidence from which his possession of the equipment might possibly be inferred. Based on our conclusion that the state has failed to present sufficient evidence of Withrow's residency, we need not decide whether the state would have made a submissible case if Withrow resided at 519 Church Street. FN5. Section 564.011.3 provides as follows: Unless otherwise provided, an attempt to commit an offense is a: (1) Class B felony if the offense attempted is a class A felony. (2) Class C felony if the offense attempted is a class B felony. . . . . Manufacturing methamphetamine in violation of section 195.211 constitutes a class B felony. Thus, section 564.011 classifies an attempt to manufacture methamphetamine in violation of section 195.211 as a class C felony. FN6. Although not necessary to our disposition, we point out a flaw in MAI-CR3d that the parties were asked to address in supplemental briefs. Specifically, we question the validity of MAI-CR3d 325.06, which governs the submission of common law attempt under section 195.211. As the Supreme Court of Missouri recently stated, MAI-CR and its Notes on Use are not binding to the extent they conflict with the substantive law. State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997). Here, Instruction No. 5 was patterned after MAI-CR3d 325.06 and provided as follows: If you find and believe from the evidence beyond a reasonable doubt: First, that on or about January 25, 1997, in the Township of Mason, County of Marion, State of Missouri, that the defendant attempted to manufacture methamphetamine, a controlled substance, by chemical synthesis, and Second, that defendant knew that the substance he attempted to manufacture was methamphetamine a controlled substance, then you will find the defendant guilty of attempt to manufacture 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 return a verdict finding him guilty of attempt to manufacture a controlled substance. MAI-CR3d 325.06 does not define the term "attempt." Indeed, the Notes on Use expressly prohibit defining attempt. The reason for this omission is unclear. MAI-CR3d 304.06, the pattern instruction for submitting statutory attempt under section 564.011, does define attempt. To constitute an attempt under MAI-CR3d 304.06, the defendant's conduct must be a "substantial step toward the commission of the offense." A "substantial step" is "conduct which is strongly corroborative of the firmness of the defendant's purpose to complete the commission of the offense." By prohibiting a definition of attempt, MAI-CR3d 325.06 seemingly grants the jury a roving commission. If not instructed on the definition of attempt, the jury will naturally ascribe the plain and ordinary (as opposed to legal) meaning to the word. A dictionary definition of "attempt" is "to make an effort to do, accomplish, solve, or effect." Webster's 3d New Int'l Dictionary 140 (1965). MAI-CR3d 325.06 therefore allows a jury to convict a defendant of common law attempt to manufacture methamphetamine without finding that the defendant's conduct "nearly approached the consummation" of the offense or, at the very minimum, something more than a substantial step. For these reasons, MAI-CR3d 325.06 appears to conflict with substantive law. Separate Opinion:

State made a submissible case of attempt to manufacture methamphetamine in violation of section 195.211 RSMo 1994. I also believe the majority's requirement that a defendant must "nearly consummate" the offense in order to be found guilty of common law attempt is contrary to the most recent pronouncements of the Missouri Supreme Court. The police surveillance which led to the arrests in this case was conducted principally on the evenings of January 23 and January 24, 1997. On January 23 the police observed eight to ten people enter and leave the house at 519 Church Street between the hours of 8:00 p.m. and midnight. Those seen entering and leaving were in the house for only three to five minutes at a time. Police also observed the porch light of the house turned on at various times, which they interpreted based on experience as indicating the house was open for the business of selling drugs. Based on training and experience, police concluded that those entering the house for three to five minutes were there to purchase illegal drugs. Sometime during the evening of January 23, police observed an individual in a vehicle who they thought was Troy Yohn, for whom police held an active warrant. Officers pulled the vehicle over about a block and a half from 519 Church Street and determined that the individual in the car was not Troy Yohn but Defendant, Michael Withrow. The vehicle he was driving had previously been observed parked in front of 519 Church Street. On January 24, police observed approximately fifteen or twenty people make three to five minute visits to 519

Church Street. Over the two nights of surveillance, Defendant was seen five or six times. His car was observed to be parked in front of the house for an hour or two on the evening of January 24. It was also parked in front of the house when police executed the search warrant on January 25. When police executed the search warrant, they knocked and announced their presence. No one answered the door but police heard movement inside the house. When the police breached the door, several of the officers immediately ascended the stairs. One of the officers, Sergeant Inglima, who was directing the search, observed Defendant emerging from the upstairs east bedroom with his hands up. In that bedroom police found at least two loaded weapons, a bag containing a large number of lithium batteries, plastic tubing and other paraphernalia associated with the manufacture of methamphetamine. Police noted a strong and distinctive odor in the room indicating the presence of solvents associated with the manufacture of methamphetamine. In the closet of the upstairs east bedroom, police found other equipment and ingredients for the manufacture of methamphetamine, including a bottle containing pseudoephedrine dissolved in an unidentified liquid. The closet was not locked.(FN1) In the closet of the west bedroom across the hall, police also found a letter addressed to Defendant by name. Common experience suggests that casual visitors do not leave their mail lying around in the closets of their hosts' bedrooms. Thus, the jury was entitled to infer that Defendant resided at 519 Church Street.(FN2) Three other items of evidence support this inference. First, as indicated above, Defendant's car was observed to be parked in front of the residence for one to two hours the night before, in contrast to the numerous suspected drug purchasers who stayed only three to five minutes. Second, Defendant was found alone in the room containing both the methamphetamine lab and numerous loaded weapons. It is highly unlikely that those engaged in the illegal activity of manufacturing methamphetamine would allow someone not participating in the enterprise to occupy such a position. Finally, Defendant's own evidence tends to support the adverse inference that he indeed lived at 519 Church Street. Defendant's sole witness was Captain Shinn, who had also testified for the State. Defendant's counsel showed Captain Shinn a certified copy of a traffic ticket issued to Defendant approximately four months before the search which listed an address other than 519 Church Street. Captain Shinn was then asked if he had any reason to believe Defendant had not resided there at the time the ticket was issued. Captain Shinn said he did. When asked why, he said he had recently arrested a girl who lived there and she had told him in a mirandized statement that Defendant never lived there. Defendant, of course, was not required to offer any evidence as to his place of residence. Once he chose to do so, however, the jury was entitled to draw an adverse inference from the flimsy evidence he chose to offer. It should be a

fairly simple matter for anyone to prove where they reside. Everyone who lives in a dwelling should have either a roommate, a landlord, a mortgage holder or a real estate tax statement. There are any number of ways to get this sort of evidence before the jury without putting Defendant on the stand. Defendant chose instead to offer a traffic ticket that was immediately shown to be unreliable and, having failed to establish his place of residence, elected not to put on any additional evidence. Given the numerous readily available ways of proving he lived somewhere else if that were truly the case, the jury was entitled to infer that Defendant did not offer such additional evidence because he really did reside at 519 Church Street as the State's evidence indicated. Based on the foregoing evidence, the jury was entitled to infer that at the time of the search, Defendant was the only person in the upstairs east bedroom of his home. The room and the unlocked closet contained most of the materials necessary to manufacture and refine methamphetamine. A strong and distinctive odor was present in the room, from which the jury could infer Defendant had knowledge of the presence of such materials. The first stage of manufacture, preparation of a pseudoephedrine base, had already been performed. Defendant was the only one in the home with immediate access to these materials and, with several loaded firearms readily at hand, had the ability to exclude others from access to the materials. Based on this evidence, the jury was entitled to find Defendant was in constructive possession of the materials to be used for the manufacture of methamphetamine. Defendant further urges, however, that the evidence was insufficient to establish an "attempt" to manufacture methamphetamine. Defendant claims that, to establish common law as opposed to statutory attempt, the state must prove Defendant "nearly consummated" the offense. As support for this standard, Defendant relies on State v. Bue, 985 S.W.2d 386, 389 (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) and State v. Reyes, 862 S.W.2d 377, 382-83 (Mo. App. 1993). Although these cases use that unfortunate terminology, closer analysis demonstrates that Defendant has misinterpreted the test for common law attempt. Bue, Davis and Motley require little discussion because in each of these cases the defendant had been convicted of statutory attempt pursuant to section 564.011 RSMo 1994. Although dicta in these cases directly or indirectly cites Reyes for the proposition that common law attempt requires a defendant to "nearly approach the consummation" of the offense, the proper definition of common law attempt was not the issue before the court.(FN3) In Reyes, the court was required to examine the meaning of common law attempt. In Reyes, the court first set forth the following statement, without citation of any authority whatsoever: "It is a general principle that to constitute a

common law attempt the conduct of a defendant had to nearly approach consummation of that offense." 862 S.W.2d at

1. However, that sweeping generalization is then immediately followed by the following lengthy quotation from State v.

Thomas, 438 S.W.2d 441, 446 (Mo. 1969), which the Reyes court characterized as a generally accepted common law definition "attempt:" "An 'attempt' is 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.' State v. Smith, 119 Mo. 439, 444, 24 S.W. 1000, 1001 [1894] quoted with approval in State v. Scarlett, Mo.Sup., 291 S.W.2d 138, 140, 141 [1956]. An attempt is separate and distinct from the crime itself. It was not necessary for the appellant to have received money from the cashing of the bogus check to be guilty of a criminal attempt. 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, [footnote omitted] which falls short of the completion of the crime, [footnote omitted] which overt act must move directly toward the consummation of the crime. Authorities, supra. There must be at least an apparent ability to commit the crime, State v. Block, [333 Mo. 127, 62 S.W.2d 428 (1933)] supra; it must be apparently possible. Mere preparation is not sufficient to constitute an attempt to commit the crime. The defendant must have taken steps going beyond mere preparation, by doing something bringing him nearer the crime he intends to commit. 22 C.J.S. Criminal Law Sec. 75(2), p. 231. 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. Idem, p. 233." State v. Thomas, 438 S.W.2d 441, 446 (Mo.1969). 862 S.W.2d at 382-83. It is readily apparent that the quotation from Thomas does not support what would generally be understood by the Reyes court's sweeping generalization that the conduct of the defendant must "nearly approach consummation" of the offense. Indeed the last sentence of the quotation from Thomas says precisely the opposite. Inasmuch as nothing in Reyes indicates the court had any intent to change the common law definition of attempt, the court's sweeping generalization must be interpreted in light of the test set forth in Thomas, which, as a decision of the Missouri Supreme Court, must be regarded as controlling in any event. The most recent definition of common law attempt by the Missouri Supreme Court is apparently that set forth in

State v. Olds, 603 S.W.2d 501, 508 (Mo. banc 1980), which likewise does not support the more general formulation set forth in Reyes and relied upon by Defendant: Case law has defined the elements necessary to constitute attempt as: (1) the intent to commit the crime, (2) an overt act toward its commission, (3) failure of consummation, and (4) the apparent possibility of commission. State v. Miller, 368 S.W.2d 353 (Mo.1963). Although mere preparation is not sufficient, the overt act need not be the ultimate step toward, or the last proximate act or the last possible act in the consummation of the crime attempted. State v. Thomas, 438 S.W.2d 441 (Mo.1969). Applying this standard(FN4) to the case before us, the State clearly made a submissible case of common law attempt. One of the items the police recovered from 519 Church Street was a recipe for manufacturing methamphetamine. This supports the inference that Defendant had the intent to commit the crime. Further, nearly all of the items necessary to manufacture methamphetamine had been assembled and the first step had already been performed, further confirming Defendant's intent. Preparation of the pseudoephedrine base along with the gathering of specialized paraphernalia utilized in the manufacture of methamphetamine was clearly an overt act toward the commission of the crime. Indeed, the evidence does not suggest any other purpose or use for the pseudoephedrine base. Although, as explained below, Defendant needed to perform only one more step in the process to manufacture methamphetamine, the raid occurred before that step was taken so there was a failure of consummation of the crime of manufacturing methamphetamine. Finally, the evidence established that there was an apparent possibility of commission of the crime of manufacturing methamphetamine. Although Defendant urges that the manufacture of methamphetamine is a four step process of which Defendant had completed only the first step, this contention is not supported by the record. Sergeant Inglima testified that although the manufacture of methamphetamine suitable for sale requires four steps, the chemical reaction that results in methamphetamine actually occurs at step two. Specifically, when the pseudoephedrine base is combined with lithium and anhydrous ammonia, a chemical reaction occurs which produces methamphetamine, although it is not then in an ingestible form because it is contained in a mixture with other poisonous chemicals. The remaining steps are simply processes for refining the methamphetamine to separate it from these other chemicals. The crime of manufacture, however, is clearly complete at step two. This is because the statute specifically defines the controlled

substance methamphetamine to include "any material, compound, mixture or preparation which contains any quantity" of methamphetamine. Section 195.017.4(3)(b) RSMo 1994 (emphasis added). Therefore, had Defendant performed the next step in the process, there would have been no failure of consummation and he could only have been found guilty of manufacture, not attempt. Sergeant Inglima's testimony also established the apparent possibility of completing the crime of manufacture. Specifically, Sergeant Inglima explained that anhydrous ammonia is readily available in large tanks on farms in the rural area surrounding Hannibal. Sergeant Inglima told the jury that, based on his experience, those engaged in the manufacture of methamphetamine would fill some type of portable tank, such as a propane tank, with anhydrous ammonia from one of the large farm tanks. Sergeant Inglima further explained that because the fittings on such portable tanks are not designed for the extreme cold temperature of anhydrous ammonia, the fittings on the portable tank have a tendency to turn a distinctive blue color. A propane tank with fittings exhibiting this distinctive blue color was found in the closet of the upstairs east bedroom and was admitted into evidence. According to Sergeant Inglima, the actual mixing of anhydrous ammonia with the other ingredients often occurs in remote rural areas because the distinctive smell can otherwise alert authorities. The jury was thus entitled to find that Defendant was in possession of pseudoephedrine base, lithium and a tank that had previously been used to transport anhydrous ammonia. Defendant had a car with which to travel to large, readily accessible anhydrous ammonia tanks located on nearby farms. Defendant also had access to a recipe for manufacturing methamphetamine. Defendant therefore had the apparent ability to complete the crime of manufacture.(FN5) The evidence was therefore sufficient to support submission of the crime of attempting to manufacture methamphetamine. I have reviewed the claims of error raised in Defendant's brief and find them to be without merit. In view of the majority's disposition, discussion of these points would serve no useful purpose. For the foregoing reasons, I would affirm the judgment. Pursuant to Rule 83.01, I further certify that I deem the opinion of the majority to be contrary to the opinions of the Missouri Supreme Court in State v. Thomas, 438 S.W.2d 441, 446 (Mo. 1969) and State v. Olds, 603 S.W.2d 501, 508 (Mo. banc 1980) and order this case transferred to the Missouri Supreme Court. Footnotes: FN1.Although both Defendant and the State briefed the submissibility issue on the assumption that the door to the closet was locked with a padlock, the evidence on this point was conflicting and, essentially irreconcilable. Sergeant Inglima recalled that there was a hasp on the door but no lock. He agreed that the door might have been opened before he was present but said they had not had to break the door open. On the other hand, Sergeant Rader testified that the

closet was locked with a padlock and that he opened the door by removing the pins from the hinges. If Sergeant Rader's recollection is accurate, Sergeant Inglima would not have observed a hasp with no lock in it, regardless of whether he was there when the door was first opened. Likewise, if Sergeant Inglima's recollection is accurate Sergeant Rader's recollection cannot be accurate. The jury, of course, was free to believe either Sergeant Inglima or Sergeant Rader and we are obliged in evaluating the sufficiency of the evidence to consider the evidence in the light most favorable to the State. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). In evaluating the sufficiency of the evidence we must therefore assume that the closet was not locked. FN2.Defendant makes much of the fact that the letter found in the west bedroom closet contained a different address. Defendant misses the point. The point is that the letter is property that presumptively belongs to Defendant. The presence of that property in a bedroom closet of 519 Church Street suggests that Defendant lives there. The letter would be no more meaningful if it had been addressed to Defendant at 519 Church Street because using the letter to establish Defendant's address would have been a hearsay use. The point is Defendant's property was found in a place where one would not expect a casual visitor's, or even a non-resident's property to be found. Moreover, Captain Shinn's testimony established that Defendant could not have been residing at the address shown in the letter because the house that had been there had been flooded and torn down some years before. FN3.Contrary to Defendant's contention, the issue of whether the evidence in those cases would have supported a conviction for common law attempt was not before the court in either Motley or Davis. Neither jury was asked to make such a finding and , because both defendants were convicted of statutory attempt, double jeopardy concerns would have precluded retrial for the common law attempt originally charged. FN4.In dicta, the majority advances the view that the prohibition against defining "attempt" set forth in the Notes on Use for MAI-CR3d 325.06 somehow conflicts with the substantive law. Slip Opn. at n.6. I respectfully submit that the definition in State v. Olds is precisely what is commonly understood by the term "attempt" and that no further definition is either required or desirable. FN5.Defendant's reliance on State v. Farr 978 S.W.2d 448 (Mo. App. 1998) for the proposition that he lacked the "present ability" to commit the crime is misplaced. In Farr, the defendant was charged with attempting to distribute methamphetamine, not attempting to manufacture it. Although the defendant had assembled many of the necessary materials, he had not combined the materials with anhydrous ammonia so the substance he possessed was not methamphetamine. The defendant nevertheless sold the substance he had produced as methamphetamine. The court of appeals held that defendant lacked the present ability to attempt to distribute methamphetamine when the substance he distributed was not methamphetamine. Id at 450. The court explained that the "present ability" test is essentially a recognition of the "legal impossibility" defense, which stems from the common law view that "it is not a crime to attempt to do that which it is legally impossible to do." In the instant case, it was by no means legally impossible for defendant to manufacture methamphetamine. He had most of the ingredients and was shown to have both the tools and necessary transportation with which to complete the next step, which would have produced methamphetamine. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.