Opinion
No. 24189
April 17, 2002.
Appeal From Circuit Court of St. Clair County, Hon. William J. Roberts.
Donald W. Petty, for Appellant.
Karen L. Kramer, for Respondent.
Opinion
Gary Lynn Baker ("Appellant") appeals his conviction and sentence for possession of a chemical with intent to create a controlled substance in violation of section 195.420. Appellant was sentenced as a prior and persistent offender to a term of twenty years' imprisonment. Appellant raises five points on appeal. Finding no reversible error, we affirm the conviction.
All references to statutes are to RSMo 2000, unless otherwise indicated.
In Point I, Appellant claims the trial court erred in admitting evidence obtained during a search of Appellant's residence because the law enforcement officers executing a search warrant for Appellant's residence unjustifiably failed to knock and announce their identity prior to entering the premises. Appellant's second point is that the evidence obtained during the search of his residence should have been suppressed because there was no probable cause to issue the search warrant in that the basis for that warrant was unreliable, uncorroborated, and stale hearsay. The state argues that neither point is preserved for appellate review. We first address this argument.
The state uses two rationales to argue that Appellant waived his right to raise any claim of error concerning the admission of evidence seized in the search of his residence. First, the state claims that when Appellant's counsel stated he had no objection when the seized evidence was offered into evidence he waived the ability to have the issue reviewed on appeal. Second, the state claims that Appellant failed to timely raise the issue in his motion to suppress.
Appellant's motion to suppress was initially denied in a pretrial hearing; Appellant then renewed that motion at the beginning of the trial. After hearing the oral arguments on the issues and with no further testimony, the trial court again denied the motion. Appellant's attorney then requested clarification as to whether he should object to the evidence that was the subject of his motion to suppress every time the prosecutor mentioned it, or whether he could object at the first instance and then ask for and receive a continuing objection. The prosecutor and the trial court agreed to a continuing objection procedure. As agreed upon by the prosecutor and Appellant's counsel, at the point in the prosecutor's opening statement where he first mentioned the seizure of methamphetamine ("meth") from Appellant's home, Appellant's attorney objected to comments regarding evidence obtained through the search warrant. He stated several grounds for that objection, including that the execution of the search warrant was improper and the search warrant was not based on probable cause. He concluded by asking for the objection to be a continuing one. The trial court overruled the objection, the state agreed to the continuing objection, and the trial court agreed to allow that objection to continue.
When the state later offered the items seized from Appellant's home into evidence, Appellant's attorney stated that he had no objection. In fact, at each juncture when any of the evidence was introduced, Appellant's attorney stated "no objection." The state contends Appellant affirmatively waived his right to appellate review by stating "no objection" when each piece of evidence was introduced.
The established rule in Missouri holds that stating "no objection" when the evidence is introduced waives even plain error review. State v. Starr , 492 S.W.2d 795, 801 (Mo.banc 1973); State v. Patino , 12 S.W.3d 733, 740 (Mo.App.S.D. 1999); State v. Morrow , 996 S.W.2d 679, 682 (Mo.App.W.D. 1999). We acknowledge that in State v. Stillman , 938 S.W.2d 287 (Mo.App.W.D. 1997) and State v. Curtis , 931 S.W.2d 493 (Mo.App.W.D. 1996), under almost identical procedural facts, the Western District chose to review the denial of a motion to suppress on its merits. In Stillman , the court stated "to now rule a waiver of this point and a denial of review would be a hypertechnical application of the requirement of renewing the objection at every stage." Id . at 290. We disagree and choose not to follow Stillman and Curtis and hold that Appellant affirmatively waived any appellate review.
But c f. State v. Wurtzberger , 40 S.W.3d 893, 898 (Mo.banc 2001) the state, citing Rule 28.03, argued that even plain error review pursuant to Rule 30.20 was waived when defense counsel stated "no objection" to jury instructions. In discussing whether the express statement that counsel had no objection to a jury instruction waived even plain error review, the Supreme Court indicated, "Unpreserved claims of plain error may still be reviewed under Rule 30.20 if manifest injustice would otherwise occur. To be sure, there is some confusion regarding the interplay between Rule 30.20 and Rule 28.03. . . . But, in fact, there is no case . . . holding that Rule 28.03 trumps Rule 30.20."; See also State v. Wright , 30 S.W.3d 906, 912 (Mo.App.E.D. 2000). (Finding that "because the concept of waiver of plain error review has recently been questioned, we have elected to review for plain error.")
Because at any point in a trial an objection to evidence may be rescinded, we find that if trial counsel states "no objection" while purportedly meaning "no objection other than what has been stated," counsel is creating an untenable ambiguity for the trial court and the reviewing court. To hold otherwise would cause unnecessary confusion in this area. In our view, the rule followed by the cases cited supra are rooted in common sense and reason. We find that an affirmative announcement of "no objection" amounts to a waiver of even plain error review of the issue. Points I and II are denied.
In view of our disposition of the state's first argument, we do not address the state's second argument that Appellant cannot address the propriety of the seizure on appeal because Appellant failed to raise the issue in a timely manner.
In Appellant's third point on appeal he claims the trial court erred in allowing the state to file a second amended information that failed to charge an offense. That information stated:
The Prosecuting Attorney of the County of Henry, State of Missouri, charges that the defendant, in violation of Section 195.420, RSMo, committed the class C felony of possession of a chemical with the intent to create a controlled substance, punishable upon conviction under Sections 558.011.1(3) and 560.011, RSMo, in that on or about March 10, 2000, in the County of Henry, State of Missouri, the defendant knowingly possessed methanol or hydrogen peroxide or lighter fluid or naphtha or muriatic acid or pseudoephedrine or ephedrine or acetone and other solvents proven to be precursor ingredients of methamphetamine, with the intent to convert, process or alter one of those chemicals to create methamphetamine, a controlled substance.
(Emphasis added). Appellant claims that drafting the emphasized portion of the information in the disjunctive form did not sufficiently charge him with an offense. While he is correct on this point of law, his failure to timely raise the issue is fatal to his claim.
See State v. Hartman , 273 S.W.2d 198, 203 (Mo. 1954).
Rule 24.04(b)(2) states that the defense of failure of the indictment to charge an offense "shall be noticed by the court at any time during the pendency of the proceeding." Here, however, Appellant failed to raise this issue during the pendency of the proceeding and instead raised it for the first time in this appeal. In State v. Parkhurst , 845 S.W.2d 31 (Mo. banc 1992), the Missouri Supreme Court clarified when an indictment can be found insufficient when the first time the issue is raised is on the appeal.
All rule references are to Supreme Court Rules (2001), unless otherwise stated.
When the issue is raised for the first time after verdict, the indictment or information will be deemed insufficient only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced. . . . In either event, a defendant will not be entitled to relief based on a post-verdict claim that the information or indictment is insufficient unless the defendant demonstrates actual prejudice.
845 S.W.2d at 35 (footnote omitted).
The second amended indictment does, under a reasonable construction, clearly charge the Appellant with possession of a chemical with intent to create a controlled substance in violation of section 195.420, the offense for which he was found guilty. Appellant's ability to formulate a defense was not hampered in that Appellant had to be prepared to defend against his possession of any of the chemicals listed under the second amended information. If it was drafted the way Appellant claims it should have been, he would have had to do the same.
Although Appellant claims he is not protected from double jeopardy, Appellant is actually stronger in a future claim of double jeopardy with the wording of the second amended information. Because it can be argued the jury found him guilty of possessing all or one of the chemicals listed, it would be difficult for the state to later claim that Appellant was not tried for possession of any of those chemicals on the date charged.
Because the facts do not support a finding in Appellant's favor that the indictment does not charge the offense of which Appellant was convicted and because Appellant was able to prepare a defense and could plead former jeopardy in the event of an acquittal, we find the indictment was sufficient. Appellant's third point is denied.
In Appellant's fourth point, he argues that because the state's verdict director was stated in the disjunctive, and because the verdict form stated Appellant's crime generally, it is impossible to discern which chemical or chemicals Appellant was found to have possessed in violation of section 195.420 and it is possible that less than all of the jurors found him guilty of possession of the same chemical beyond a reasonable doubt. The verdict director reads in relevant part:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about March 10, 2000, in Henry County, Missouri, the defendant possessed methanol or hydrogen peroxide or lighter fluid or naphtha or muriatic acid or pseudoephedrine or ephedrine or acetone, and
Second, that the defendant was aware of its presence and nature, and
Third, that the defendant did so with the intent to convert, process or alter methanol or hydrogen peroxide or lighter fluid naphtha or muriatic acid or pseudoephedrine or ephedrine or acetone to create methamphetamine, a controlled substance,
then you will find the defendant guilty of possession of a chemical with the intent to create 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.
. . . .
As used in this instruction the term "controlled substance" includes methamphetamine.
The verdict form stated, "We, the jury, find the defendant Gary Lynn Baker guilty of possession of a chemical with the intent to create a controlled substance as submitted in Instruction No. 6." The crux of Appellant's argument is that the jury must convict beyond a reasonable doubt as to each element and that because of the verdict directors and verdict forms, it is impossible to know if the jury did in fact find him guilty beyond a reasonable doubt.
Appellant did not raise this issue until this appeal, and, as a result, recognizes he may ask only for plain error review. Plain error review is used sparingly and its application is limited to those cases where there is a strong, clear demonstration of manifest injustice or a miscarriage of justice. State v. Varvera , 897 S.W.2d 198, 201 (Mo.App.S.D. 1995). "[I]nstructional error will constitute plain error only if the trial court so misdirected or failed to instruct the jury on the law of the case as to result in manifest injustice." State v. Mackey , 822 S.W.2d 933, 935 (Mo.App.E.D. 1991).
The disjunctive submission of elements of the crime is proper only if there is substantial evidence to support every alternative submission. State v. Puig , 37 S.W.3d 373, 377 (Mo.App.S.D. 2001). In the instant case there was evidence to support a finding that Appellant possessed every one of the specific chemicals listed in the verdict director, and that each of those chemicals was an ingredient for making meth. Because there was evidence to support every possibility the jury was faced with on the verdict director, Appellant suffered no manifest injustice by the disjunctive nature of the instruction's terms. See Mackey , 822 S.W.2d at 936. Point IV is denied.
In Point V, Appellant claims error in the verdict director and the form of verdict because it is impossible to ascertain what chemical he was convicted of possessing and, therefore, Appellant cannot plead former jeopardy by acquittal or by conviction as to possession of any of the chemicals. Again, this argument was not raised until this appeal, and Appellant may only receive plain error review. Appellant cites no authority in support of his argument. Arguments on appeal without supporting authority may be deemed abandoned. Puig , 37 S.W.3d at 375. As discussed above, we disagree that Appellant is not safe from being tried on this same charge again; thus, Appellant cannot show prejudice. Appellant's Point V is denied.
Finding no reversible error in this case, the trial court's judgment is affirmed.
AFFIRMED.
All concur.