APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable Harold L. Henry, Judge
The opinion of the court was delivered by: Per Curiam
PER CURIAM: On November 6, 1992, this court issued an opinion in this cause. On January 26, 1993, by order of the Supreme Court of Missouri, this cause was transferred to that court. On June 29, 1993, the Supreme Court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.
Defendant Margaret Reyes was charged with the class B felony of producing marijuana, in contravention of § 195.211.1, RSMo Cum.Supp. 1991. A jury found her guilty of an attempt to produce marijuana and assessed her punishment at imprisonment for five years. The trial court sustained defendant's Motion for Judgment of Acquittal, or in the Alternative for a New Trial, and ordered defendant discharged. The State appeals. § 547.200.2. *fn1 See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), 61 A.L.R.2d 1119 (1958). The following is a resume of the facts.
The Sheriff and three Deputies of Howell County went to the mobile home of defendant and her husband to execute a search warrant. As the sheriff got out of his car, he saw, through a window, defendant move hurriedly toward the west end of the mobile home. Defendant's husband was outside the mobile home. The sheriff ran to the west end of the mobile home and, again through a window, saw defendant. "She had whirled -- she'd run to the window and she whirled from the window and started back to the east end of the trailer." She had something in both hands. When the sheriff returned to the front of the mobile home, he found defendant outside, empty-handed.
The officers then entered the mobile home. A deputy found in a closet a large clay flowerpot and a cut-off plastic milk jug. A total of 44 plants were growing in the containers. There were approximately 9 plants in the flowerpot that were roughly 6 inches tall. The remainder of the plants in the milk jug had just sprouted and were very small seedlings. Defendant told the sheriff that the plants were what he had seen her with hurrying down the hall and that she had placed them in the closet. The officers also found several marijuana smoking devices. The sheriff identified the plants in the flowerpot and cut-off milk jug as marijuana plants. A chemist confirmed the sheriff's identification of the plants in the flowerpot. However, the seedlings in the cut-off milk jug had died and the chemist could not conclusively identify those seedlings. He believed the seedlings were marijuana. The chemist testified there are slightly more than 28 grams in one ounce and that a nickel weighs approximately five grams. A picture of the two containers and the marijuana plants, taken just after their seizure, was admitted in evidence.
The trial court gave two verdict directing instructions. Instruction No. 5 submitted the offense of producing more than 5 grams of marijuana. *fn2 Instruction No. 6 submitted, as a lesser included offense, the offense of an attempt to produce marijuana. *fn3 As stated, the jury found defendant guilty under Instruction No. 6 of an attempt to produce marijuana and fixed her punishment at imprisonment for five years.
In sustaining defendant's motion and ordering her discharged, the trial court, in scholarly and commendable fashion, rendered an opinion stating the basis for its decision. The following is the essence of that opinion. Under § 195.211 RSMo Cum.Supp. 1991, a person who produces or attempts to produce less than 5 grams of marijuana is not guilty of an offense. State v. LaMaster, 811 S.W.2d 837 (Mo.App. 1991) is cited. The opinion of the trial court continues:
"There is a significant difference between Sec. 195.211 and most statutes criminalizing conduct in that Sec. 195.211 makes it an offense to attempt to produce more than 5 grams of marijuana, the same as actually producing more than 5 grams, whereas, ordinarily, there is no attempt provision in the object or underlying criminal statutes as there is here. Rather, there is a special statute providing for prosecution of attempt with regard to most crimes. Sec. 564.011 RSMo. The apparent reason for making attempt to produce more than 5 grams of marijuana a violation and a class B felony just the same as producing more than 5 grams of marijuana is that under the aforesaid attempt statute, to-wit: Sec. 564.011, attempt to commit an offense is a lower grade felony from the punishment standpoint than the object offense. For example, as is set forth in the attempt statute, it is only a class B felony if the object offense is a class A felony. In the case at bar, but for the attempt provision being included as a class B felony in Sec. 195.211, the penalty for attempting to produce more than 5 grams of marijuana would be a class C felony which calls for a lighter penalty than a class B felony. Thus, it is the opinion of the Court that Instruction No. 6, even though it is an MAI pattern instruction on attempt to commit an offense, does not include a required element that the jury must find in order to find the defendant guilty in this case, to-wit: that the defendant produced or attempted to produce more than 5 grams of marijuana."
The trial court then found there was not sufficient evidence to establish defendant produced or attempted to produce more than 5 grams of marijuana. That being so, the court held that to merely reverse the conviction and grant defendant a new trial would improperly place her in double jeopardy. State v. Inman, 578 S.W.2d 336 (Mo.App. 1979) is cited. For this reason, defendant was ordered discharged.
The State contends Instruction No. 6 followed MAI-CR 3d 304.06 and was a proper instruction. The State argues: "For respondent to be convicted of attempt, the state needed to prove only the following elements: (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. Hardy, 735 S.W.2d 153 (Mo.App. 1987) is cited. The State also argues that it was not necessary that the State show the amount of marijuana seized was more than 5 grams. The State concludes it was only necessary to "show the apparent possibility that the marijuana under production would eventually come to weigh more than five grams." (Emphasis in original.)
The Disposition of this appeal and consideration of the issues presented by the case is difficult and complex because the applicable statute defining what may be called the principal offense, does so in the alternative language of " . . . produce or attempt to . . . produce a controlled substance . . . ." § 195.211.1 RSMo Cum.Supp. 1991. (Emphasis added.) This section makes no reference to § 564.011 which defines the general inchoate offense of attempt.
Section 564.011 provides:
"1. 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 the 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.
2. It is no defense to a prosecution under this section that the offense attempted was, under the actual attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the actor believed them to be.
3. 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.
(3) Class D felony if the offense attempted is a class C felony.
(4) Class A misdemeanor if the offense is a class D felony.
(5) Class C misdemeanor if the offense attempted is a misdemeanor of any degree."
The consideration and Disposition of the issues presented by the interplay between § 195.211.1 RSMo Cum.Supp. 1991 and § 564.011 is of great significance. Many statutes define or refer to a criminal offense in terms of a proscribed criminal act "or attempt to commit" that act. *fn4 For example, the statutory aggravating circumstances include: "The murder in the first degree was committed while the defendant was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of rape, sodomy, burglary, robbery, kidnapping, or any felony offense in chapter 195, RSMo;". § 565.032.2(11). (Emphasis added.) Felony murder is defined as: "A person commits the crime of murder in the second degree if he: . . . Commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony . . . another person is killed as a result of the perpetration or attempted perpetration of such felony . . . ." § 565.021.1(2). (Emphasis added.) First degree assault is defined as: "A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person." § 565.050.1. (Emphasis added.) None of the cited statutes make reference to § 564.011. *fn5 It is obvious these statutes present the issue of whether or not the term "attempt", as used in such statutes, bears the same meaning as the separate inchoate offense of "attempt" proscribed by § 564.011.
Historically, certain statutes have defined a principal offense in the alternative language of the commission of a proscribed criminal act or an attempt to commit that act. See State v. Bliss, 80 S.W.2d 162 (Mo. 1935). When so used, without further definition, the term "attempt" carried a common law meaning. See State v. Block, 333 Mo. 127, 62 S.W.2d 428 (1933); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (banc 1928). A statute defining the inchoate offense of attempt was adopted in 1905. That section remained substantially unchanged until the adoption of The Criminal Code. The 1905 statute, in part, provided:
"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 ...