text:
    Dennis HOLLIDAY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64190.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11, 2006.
    Andrew A. Schroeder, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Dennis Holliday appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-eonviction relief. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    STATE of Missouri EX REL., CITY OF JOPLIN, Missouri, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE OF MISSOURI; Missouri American Water Company; AG Processing, Inc., Respondents.
    No. WD 64944.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11, 2006.
    See also 100 S.W.3d 915.

      James B. Deutsch, Marc H. Ellinger, Co-Counsel, Jefferson City, MO, for appellant.
    Keith R. Krueger, Jefferson City, MO, for respondent Public Service Commission.
    Dean L. Cooper, Jefferson City, MO, for respondent Missouri American Water.
    Stuart W. Conrad, Kansas City, MO, for respondent AG Processing.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

The City of Joplin appeals a circuit court decision affirming the Public Service Commission’s (Commission) ruling that a 2000 rate case involving the Missouri-American Water Company (Company) was mooted by new tariffs that Joplin agreed to and were approved by the Commission in 2004 while this case was pending. - Because we find that the case fits within an exception to the mootness doctrine, we reverse and remand for the Commission to issue findings of fact and conclusions of law as ordered by the circuit court in 2001.

In August 2000 the Commission approved a Company rate plan that was designed to move from single tariff pricing (STP) toward district-specific pricing (DSP) across a number of Missouri districts. The Company was seeking to increase its annual revenues by 53.97%, or about $16.5 million, and improve its return on equity. The Company had previously been moving toward the STP method, where each district’s customers pay for water service at the same rate schedule as customers in other districts, regardless of differences in the actual costs to provide that service to the various districts. DSP, in contrast, is a rate-allocation method under which different rate schedules are applied to customers in each of the various districts in a system served by a public utility and are based on the separately determined, specific costs of providing service in each district.

Under the tariffs approved by the Commission, the Joplin district and its .ratepayers were to be charged under a “modified” DSP method that resulted in Joplin district ratepayers paying rates at existing levels under the STP method. Among other matters, the Commission’s decision produced an acknowledged excess of revenue over actual costs of providing water service to the Joplin district. The surplus of some $880,000 per year from the Joplin district was purportedly applied to benefit ratepayers in other districts who were only charged for the actual costs of service and would otherwise have faced significant rate increases, characterized as shock rates, under the DSP method. The Commission denied multiple applications for rehearing, including Joplin’s.

Seven parties filed ten petitions for writs of review in three different counties, and, on May 31, 2001, the Missouri Supreme Court granted writs of prohibition to stop the proceedings in any county other than Cole. On October 3, the Cole County Circuit Court entered amended judgments on three writs of review, affirming in part the Commission’s Report and Order and reversing the Commission’s decision as to the Joplin rates. Specifically, the court stated:

[T]he Commission has identified no “principle” to support this decision not to set the Joplin District rates through the same method as the rest of the Company’s Missouri system. While the result is undisputed that the Joplin District pays $880,000 in excess of its cost of service in order to subsidize the other water districts, there is no factual or legal explanation for this unequal treatment of the Joplin District in the Commission’s Order. The Commission cited no source for such principle in its briefs to this Court. Such a result, without explanation, violates the prohibition against granting undue or unreasonable preference to some rate payers and locales and against subjecting any ratepayers or locale to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, Section 393.130.3, RSMo 2000.
... [T]he Commission’s conscious decision to treat differently the ratepayers in the Joplin District from those outside that district by requiring those customers to pay part of the cost of serving all other customers outside the Joplin District clearly requires justification in the evidence and in the decision. Because the [Commission’s] decision states no such justification, and because [the Commission] cites no such evidence in the record, the Commission decision is unauthorized by law.
The Commission is required by law to set forth specific findings of fact to permit effective judicial review by the reviewing Court in order to determine whether the Commission’s decision was supported by substantial and competent evidence. Section 536.090, RSMo 2000. The lack of findings of fact and conclusions of law concerning the Joplin District rate design precludes any meaningful review of the Commission’s decision by this Court.

The case was remanded for the Commission to set forth specific findings of fact and conclusions of law. With no change in the rates charged to Joplin district ratepayers, Joplin did not seek a stay of the 2000 rates nor did it request the establishment of a stay fund in which the district’s ratepayers could have revenues impounded to await further Commission review or a final appellate court decision. § 386.520.

Appeals were taken from the circuit court’s decision, and this court dismissed the appeals on December 13, 2001, finding that the court’s order was not final and thus not appealable. Our mandate was sent to the circuit court on February 28, 2002. This was the first date on which the Commission regained jurisdiction over the matter. Just five weeks later on April 3, before a pre-hearing conference could be held, several parties other than Joplin successfully filed a petition for writ of prohibition in circuit court seeking to disqualify the regulatory law judge who had been presiding in the case from conducting any further hearings. This court dissolved the writ a year later on April 1, 2003. State ex rel. AG Processing Inc. v. Thompson, 100 S.W.3d 915 (Mo.App.W.D.2003). Jurisdiction of the case was returned to the Commission thereafter on May 12. One week later, on May 19, the Company filed a second rate case, seeking a general 12.2% rate increase for water and sewer service that would produce some $20 million in additional gross annual water revenues excluding gross receipts and sales taxes.

The Commission took no further action on the 2000 rate case until after it approved a stipulation and agreement reached by the Company and most of the intervenors, including Joplin, as to the second rate case in April 2004. The second rate case had been consolidated with an excessive earnings complaint; Commission staff alleged that the Company was earning excessive water service revenues amounting to between $19 million and $21 million per year on a total company basis. The final rates approved were intended to be revenue neutral and included a 10% reduction for residential ratepayers in the Joplin district and a 1.38% increase for the district’s commercial ratepayers, The Joplin rates were intended “to more accurately reflect the true cost of providing water service to these customer classes.” The stipulation also included boilerplate text that limited application of the agreement as follows:

This Stipulation and Agreement is being entered, into solely fpr the purpose of settling all Revenue Requirement issues in these cases. None of the signatories to this Stipulation and Agreement shall be deemed to have approved or acquiesced in any ratemaking or procedural principle, including, without limitation, any method of cost determination or cost allocation or revenue related- methodology, and none of the signatories shall be prejudiced or bound in any manner by the terms of this Stipulation and Agreement in this or any other proceeding, whether this Stipulation and Agreement is approved or not, except as otherwise expressly specified herein.

Joplin did not file an application for rehearing regarding the 2003 rate case.

As for the 2000 rate case at issue herein, the Commission’s Report and Order on Remand, issued on May 27, 2004, found that (i) the 2000 rates, which became effective September 20, 2000, were superseded by the rates approved in 2004; (ii) neither the Commission nor any court stayed the 2000 rates; (iii) the revenues produced by those rates were paid by the Company’s customers directly to the Company; and (iv) none of the revenues were paid into the registry of any court. The Commission concluded, on the basis of these findings, that the Joplin district rate issue in the case was moot, because there was no decision the Commission could make that would have any practical effect on the controversy. According to the Commission,

In the present case, the excess revenue produced by the Joplin District was paid directly to [the Company], unconditionally, pursuant to tariffs approved by the Commission. This revenue became the property of [the Company] and no part of it can lawfully be refunded or returned to the ratepayers. Neither the Commission nor any court can retroactively determine what a just and reasonable rate for Joplin should have been. Therefore, the Commission determines that the Joplin issue is moot.

Thus, the Commission did not, as ordered by the circuit court in 2001, issue findings of fact and conclusions of law to support the 2000 tariffs, which had been found discriminatory and unlawful. The Commission denied Joplin’s application for rehearing, and the circuit court, also finding the matter moot, upheld its decision in November 2004.

On appeal, Joplin claims that the Commission erred in finding the rate issue moot. According to Joplin, the application of discriminatory rates to ratepayers in the district is a live controversy because it is not seeking a refund, the issue was timely raised in the original case, the Commission did not properly issue findings in support of its decision, and the stipulation in the 2003 rate case exempted application of that case to any other case or proceeding. Joplin also argues that the Commission’s declaration that the rate case was moot denied Joplin its constitutional right to judicial review and blames the Commission for contriving to delay any ruling on the merits of the original rates.

We review a Commission order to determine whether it is lawful and reasonable. § 386.510; State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 120 S.W.3d 732, 734 (Mo. banc 2003). The lawfulness of a Commission order “is determined by whether statutory authority for its issuance exists, and all legal issues are reviewed de novo.” Id. Only if we find a Commission order to be lawful, do we consider whether it is reasonable, a determination that requires us to consider the evidence in the case. State ex rel. Alma Tel. Co. v. Pub. Serv. Comm’n, 40 S.W.3d 381, 388 (Mo.App.W.D.2001).

When tariffs are superseded by subsequent tariffs that are filed and approved, the “superseded tariffs are generally considered moot and therefore not subject to consideration.” State ex rel. Mo. Pub. Serv. Comm’n v. Fraas, 627 5.W.2d 882, 885 (Mo.App.W.D.1981). This is so because superseded tariffs cannot be corrected retroactively, id., and if funds paid under those Commission-approved tariffs are not segregated in a court registry pending the final outcome, there is no monetary relief that can be given to the party challenging the rates. Lightfoot v. City of Springfield, 361 Mo. 659, 236 S.W.2d 348, 353-54 (1951).

There is an exception to this general rule, however, and we may exercise our discretionary jurisdiction where “an issue is presented of a recurring nature, is of general public interest and importance, and will evade appellate review.” Fraas, 627 S.W.2d at 885. In essence, we will exercise this discretionary jurisdiction if “there is some legal principle at stake not previously ruled as to which a judicial declaration can and should be made for future guidance.” Id. As discussed more fully infra we find that the mootness exception applies because a declaration that the 2000 rates were unlawful offers the only possibility for Joplin ratepayers to be made whole.

The circuit court made an initial finding that the rates were unlawful, but instead of reversing on that basis and giving the Commission the opportunity to re-structure the rates, the court returned the case for the Commission to explain its action by issuing additional findings of fact and conclusions of law. The remand made the case unreviewable by this court, but it is now properly before us after the Commission’s and circuit court’s mootness determinations. There are several reasons why we believe that the case is not moot, notwithstanding the fact that the 2000 rates have been superseded and there is no stay fund from which Joplin ratepayers can secure monetary relief. It is not unusual in public-utility rate cases for new tariffs to overtake proceedings involving old tariffs, and the 2001 remand here, along with the unrelated proceedings that delayed Commission action pertaining to the remand, ensured that this would occur. Where, as here, a stay may not be available or practical, the issue will evade apT pellate review.

We may also exercise our jurisdiction where the question involved arises from existing facts or rights, and we are not called on to determine an abstract question. State ex rel. Brokaw v. Bd. of Educ. of City of St. Louis, 171 S.W.2d 75, 85 (Mo.App.1943). Arguably, the overpayment of more than $3.5 million by Joplin district ratepayers on the basis of a Commission order that was alleged to be unlawful involves more than an abstract question.

Under section 393.130.3, water corporations are forbidden from granting undue preference or advantage to any ratepayer, just as they may not unduly or unreasonably prejudice or disadvantage any ratepayer in the provision of services. Hence, the Commission lacks statutory authority to approve discriminatory rates, and its approval of the rates herein, required Joplin ratepayers to pay significantly more than the actual cost of service in that district for the express purpose of subsidizing the services provided in other Company districts that were only paying for the actual cost of service arguably exceeded its authority. Had petitions for writs and appeals not been filed in the case, the Commission would have had ample time before the Company filed a new rate plan in 2003 .to attempt to justify these discriminatory, rates, as ordered by the circuit court, or modify the 2000 rate plan in a way that would not have resulted in the alleged illegal multimillion dollar overpayments by Joplin ratepayers. But that did,not happen. Instead, the Commission decided otherwise. It regained jurisdiction by approving the 2003 rate plan and then declared Joplin’s challenge to the old plan moot.

By failing to comply with the circuit court’s order and by approving new rates before doing so on remand, the Commission has effectively taken from Joplin the opportunity to take any action that might begin to redress the wrong done. That said and as noted above, Joplin failed to seek a stay of the rates when the circuit court concluded in 2001 that the case should be remanded. Perhaps more significantly, Joplin failed to request that the court establish a stay fund in which to segregate the contested payments that could then be ordered returned to the ratepayers, if they ultimately prevailed, without violating the Company’s due process rights.

It is not entirely certain, however, that Joplin would have been able to obtain a stay in a rate case that did not result in either a decrease or increase in rates. The legislature has made the issuance of a stay discretionary, and the circuit court may not issue a stay unless there is a finding of great or irreparable damage. § 386.520.1. Given that the rates charged to Joplin ratepayers did not change as a result of the Commission’s order, it is unlikely that the district could have produced sufficient evidence of great or irreparable damage to justify the entry of a stay order. Id. There has been considerable judicial attention given to the circumstances under which section 386.520 can be applied. State ex rel. Midwest Gas User’s Ass’n v. Pub. Serv. Comm’n, 996 S.W.2d 608 (Mo.App.W.D.1999). In that case, we determined that the statute applies to parties “aggrieved by” a Commission decision where it increases the rates as well as where it decreases the rates, id. at 615, but we have been unable to find any case addressing whether a party can obtain a stay where new rates make no changes to existing rates, but rather change the rate design.

The Commission argues that the case is moot because there is no effective remedy for Joplin ratepayers in this proceeding. We agree that the Commission lacks authority to retroactively correct rates. Lightfoot, 236 S.W.2d at 353. The Commission also argues, and we agree, that it lacks the authority to refund money. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674, 676 (Mo.App.1978). Nor can the Commission take into account overpayments when fashioning prospective rates. See State ex rel. Empire Disk Elec. Co. v. Pub. Serv. Comm’n, 339 Mo. 1188, 100 S.W.2d 509, 512 (1936) (court rules that commission cannot regulate company’s depreciation reserve retroactively; discussing matters that can be considered for purposes of ratemaking, court observes “the law does not require the company to give up for the benefit of future subscribers any part of its accumulations from past operations. Profits of the past cannot be used to sustain confiscatory rates for the future.”) Just because there is no effective remedy for Joplin, however, does not mean that we cannot consider the merits of the appeal under the mootness exception.

The parties refer to the same cases to support their respective positions, and a summary of those decisions will be helpful to our analysis. In Lightfoot, ratepayers claimed that they were entitled to a fund set aside by the federal courts and given, in part, to the Board of Public Utilities of the City of Springfield at the conclusion of an unrelated case involving the rates charged to utilities by a natural gas supplier. 236 S.W.2d at 349. The Missouri Supreme Court discusses the legal principle that regulatory authorities may not fix rates retroactively, while noting that they can consider “reduced operation cost and other ever-changing operation costs and the ever-changing rate base” in fixing rates prospectively. Id. at 353. Because no “ultimate consumer” had ever challenged the rates or made a request that money collected by the utility be impounded pending a federal regulatory decision, and because the money collected by the utility came into its hands unconditionally “as prescribed by the lawfully promulgated and effective rates,” the court ruled that the amount collected was the utility’s property and could not be taken without violating due process. Id. at 353-54.

The parties also refer to State ex rel. Monsanto Co. v. Public Service Commission, 716 S.W.2d 791 (Mo. banc 1986). In that case, industrial utility customers (in-dustrials) opposed the rate design in a 1983 tariff filed by the Laclede Gas Company that was intended to increase revenues. The industrials claimed unsuccessfully before the Commission that they were being charged substantially more than the actual cost to serve them. Id. at 791. On review the circuit court ruled that the tariff was unlawful, unreasonable, and not supported by the evidence. Id. at 792. The court also found that the Commission erred by not making appropriate and complete findings of fact in its order. Id. at 795. The case was remanded for rehearing because the industrials had not signed the stipulation and agreement regarding the 1983 rates, and the Commission’s adoption of the non-unanimous stipulation and agreement unreasonably limited the original hearing in violation of the industri-als’ due process rights. Id. at.792.

The circuit court also stayed the 1983 rates on condition that the industrials pay monthly into a court registry the amount of the difference between the rates charged before the order and the rates charged under the new, but suspended, tariffs. Id. The court of appeals reversed on mootness grounds, with the court finding that (i) the industrials had subsequently acquiesced to the challenged rate design by joining a unanimous stipulation and agreement that included the design in Lac-lede’s revised tariffs, which were approved without objection in 1984; and (ii) no relief could be granted to the industrials because Laclede was entitled to the revenue provided in the 1983 order, and the difference could not be recouped from other customers. Id. at 793.

The Missouri Supreme Court reversed, determining that the case was not moot. First, the court found that the industrials had, by stipulation, expressly excluded the 1983 rate dispute in agreeing to the 1984 rates and that they could have had a number of reasons for agreeing to the rate design in 1984 but not agreeing to it in 1983. Id. at 794. The court found Light-foot inapplicable because, unlike the litigants in that case, the industrials had contested the rate order and did establish a stay fund. Id. The court concluded its opinion with an analysis of the lawfulness and reasonableness of the Commission’s 1983 order and adopted the circuit court’s findings and conclusions. Id. at 794-96. According to the high court, the Commission’s failure to make complete findings of fact in violation of the Commission’s enabling legislation rendered the Commission’s order unlawful. Id. at 796. The case was remanded with the recommendation that the funds held by the court be returned to the industrials because “[t]he funds held by the court cannot be paid to Laclede under an unlawful order.” Id.

Reference is also made to Frms, in which the court articulated the mootness rule in Commission cases and found that some of the issues fit within the rule’s exception. 627 S.W.2d at 885. Fraas, like the case before us, involved tariffs that had been superseded by subsequently filed tariffs which the Commission had approved. The court discusses why superseded tariffs are generally considered moot, due to the inability of the reviewing court to give any relief. Id. There is no indication in the case that a stay had been entered or that an impoundment fund had been established. Nevertheless, the court found that while some claims of Commission error did not fall within the mootness doctrine exception, there were several issues that were not moot. As to these issues, the court issued declarations for future guidance, and the case was not remanded. Id. at 892.

. In our case, Joplin district ratepayers did not request a stay fund, but the city did challenge the rates on their behalf, and the circuit court, in remanding the case for findings, expressed its view that rates were unlawful. Thus, Lightfoot is not controlling herein. In addition, Joplin by stipulation limited its agreement to the 2003 rates and rate design and has not, therefore, acquiesced in its dispute over the 2000 rates. Like the litigants in Monsanto, there were reasons why Joplin agreed to- the rates ih 2003, e.g., residential bills were reduced by 10%, an additional rate increase would not be sought until after a certain date, more and improved services were promised, and the rate design that Joplin supported was adopted. Unlike Monsanto, there is no segregated fund herein. In the absence of any possibility of practical relief, the question that remains is whether the case otherwise fits within the exception to the mootness doctrine.

Due process prevents any court or legislative body from taking the property of a public utility where that property consists of money collected from ratepayers pursuant to lawful rates. Lightfoot, 236 S.W.2d at 354; Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 671 (1950). A Commission order that sets rates is “prima facie lawful and reasonable” until finally decided by the courts. § 386.270; State ex rel. GTE North, Inc. v. Pub. Serv. Comm’n, 835 S.W.2d 356, 367-68 (Mo.App.W.D.1992). Because the courts still have not finally decided the lawfulness of the rates herein and because there is no stay fund where contested monies could have remained under the court’s jurisdiction, the Company collected money from Joplin district ratepayers under lawful rates, and we too are prevented by due process concerns from ordering a refund in this proceeding.

Under section 393.130.3, no water corporation shall “make or grant any undue or unreasonable preference or advantage to any person, corporation or locality ... or subject any particular person, corporation or locality ... to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” The Missouri Supreme Court has discussed this principle and the policy underlying it at some length in State ex .rel. Laundry, Inc. v. Public Service Commission, 327 Mo. 93, 34 S.W.2d 37, 44 (1931), noting that our statute demands “reasonable and nondiscriminatory rates.” In that case, the court looked to the evidence adduced at the Commission hearing to determine that there was no dissimilarity or difference in the service of supplying water to the water company’s manufacturing customers and the complainants, who were engaged in a general laundry business. The high court affirmed the circuit court judgment that had set aside the Commission order dismissing the laundries’ complaints and remanding, not for additional findings and conclusions, but for further action.

We believe, however, that the record that was before the circuit court in this case was not sufficient for it or for us to determine that the rates charged to Joplin district ratepayers under the 2000 tariffs were unlawful. In its 2000 decision, the Commission approved the treatment of the Joplin district ratepayers differently from those outside the district and required the Joplin ratepayers to offset the increased rates that were approved for all other customers. Its stated justification was adherence to a Commission principle that no rates would be decreased in implementing the change from an STP to a DSP rate design in this rate proceeding.

Because the Commission’s inadequate findings and conclusions precluded meaningful judicial review, it is necessary for the Commission to issue findings of fact and conclusions of law that will allow the courts to determine whether the rates were unduly prejudicial under section 393.130.3. While it might have been desirable for Joplin to seek a stay of the rates and the establishment of a stay fund when the circuit court ruled that the 2000 rates were unlawful, we do not believe this was a necessary predicate for our consideration of the validity of the Commission’s order upholding Joplin’s rates. Court challenges to Commission decisions, although given priority over other civil cases under section 386.530, still take a considerable amount of time, particularly where lengthy writ and appeal processes are involved. And it is not uncommon, as here, for new rates to be proposed and approved before final resolution of disputes concerning old rates. Without a ruling by this court, Joplin district ratepayers cannot be protected from future rate discrimination of the same type. If there is future rate discrimination, and Joplin contests it, and the circuit court again remands for justification, the discrimination issue can keep evading review because there will likely be superseding rates before the appeal is concluded. Thus, because there is an issue presented of a recurring nature that is of general public interest and importance and that will evade appellate review unless the court exercises its discretionary jurisdiction, we will apply the exception to the mootness doctrine and decide the case on the merits. Fraas, 627 S.W.2d at 885.

We, too, are unable to order the return of any funds to Joplin in this proceeding, because they have not been segregated as provided under section 386.520, but would suggest that, by exercising our discretion under the mootness doctrine exception and remanding the case for further findings and conclusions as to the legitima-ey of the 2000 rates, Joplin ratepayers may have an opportunity ultimately to be made whole. Straube, 227 S.W.2d at 671 (unjust enrichment does not lie where money paid to public utility was based on legally established rate); see also May Dep’t Stores Co. v. Union Elec. Light & Power Co., 341 Mo. 299,107 S.W.2d 41, 58 (1937) (where public utility collects more from anyone than full amount of rate established by commission for service rendered, customer may recover excess by appropriate action in the courts).

For these reasons, we reverse the Commission’s order finding the matter moot, and therefore, remand for the Commission to issue findings of fact and conclusions of law as to its rate determination in 2000 that apparently discriminates against Joplin district ratepayers. If the Commission cannot justify the rate design adopted for these ratepayers, it can declare the rates unduly prejudicial and unlawful.

VICTOR C. HOWARD, P.J. and JAMES M. SMART, J. concur.

      . Two dissenting commissioners opined that the rates approved were either not sufficiently compensatory for the Company or did not provide a fair or reasonable return on equity.

      . The circuit court is not entirely accurate in making this statement. In fact, the Commission states in its Report and Order, "In moving toward DSP, however, the Commission will adhere to the principle that no district will receive a rate decrease.”

      . All statutory references are to RSMo (2000), unless otherwise indicated.

      . Rates were also adjusted as to ratepayers in other districts, and the Company made a number of other concessions that apparently resolved the excessive earnings allegation. By stipulation, the parties agreed that if the Commission approved the agreement, “there will be no need for a true-up audit and hearing.”

      . Presumably, Joplin emphasizes that it is not seeking a refund at this point in the litigation because there is no segregated fund over which the courts can lawfully exercise jurisdiction in this proceeding. Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 671 (1950) (money legally collected from ratepayers under established rate schedules becomes utility’s property of which it cannot be deprived without violating due process).

      . Because we have determined that this case fits within an exception to the mootness doctrine, we will not address Joplin's second point on appeal.

      . The fact that the Joplin rates were reduced in 2004 is further evidence that the 2000 rates gave an undue advantage to the ratepayers in other districts and, by implication, shows that in this case, the Commission would have been unable to justify the treatment accorded Joplin ratepayers in 2000.

      . Joplin also cites Rhode Island and Utah cases which it claims demonstrate that there are no property rights in an unlawful rate, regardless of whether the utility collected money under that rate without it being impounded. In Rhode Island, a statute gives the regulatory body the authority to order restitution for the relief of unjust, unreasonable or discriminatory acts, and the court allowed the grant of a refund where the utility earned well in excess of its authorized rate of return, while noting that a refund violating due process rights would otherwise be prohibited. Narragansett Elec. Co. v. Burke, 505 A.2d 1147, 1148 (R.I.1986). The Utah case involved ratepayers challenging a statute giving utilities the right to not proceed with a previously approved method of rate regulation. Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 774-77 (Utah 1994). The court declared that the general rule against retroactive rate-making was sound rulemaking policy and did not rest on constitutional principles. Id. at 777. Nevertheless, the court acknowledged that utilities only have a constitutional right to retain all earnings not in excess of a reasonable rate of return. Id. There is no allegation in this proceeding that the monies paid to the Company were in excess of its authorized rate of return or of what is just and reasonable. In any event, we are bound by Missouri case law which provides that, in the absence of a stay fund, monies collected by utilities under lawful rates cannot be refunded without due process implications. Lightfoot, 236 S.W.2d at 354.

      .This court has noted that a reviewing court has no basis for determining the lawfulness of a Commission decision when findings of fact and conclusions of law are absent, Friendship Vill. of South County v. Pub. Serv. Comm'n of Mo., 907 S.W.2d 339, 344 (Mo.App. W.D. 1995), and this principle applies with particular force when the question of an order's lawfulness involves a factual determination. State ex rel. GTE North, Inc. v. Mo. Pub. Serv. Comm’n, 835 S.W.2d 356, 374 (Mo.App. W.D. 1992). The question of whether discriminatory rates are unlawful and unjust is usually a question of fact. State ex rel. Mo. Office of Pub. Counsel v. Mo. Pub. Serv. Comm’n, 782 S.W.2d 822, 825 (Mo.App. W.D. 1990). Accordingly, the inadequacy of the Commission's findings and conclusions precludes meaningful judicial review herein.

      . As noted above, it is not entirely certain that Joplin could have secured a stay given that the rates did not increase.

      . Because the issue has not been presented and briefed, we do not decide whether a stay can issue in a case like this where no rate increase or decrease is at issue.


author: PATRICIA L. COHEN, Judge.

text:
    Ivan N. RELIFORD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85781.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied April 11, 2006.

      Gwenda R. Robinson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson .City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Ivan Reliford (“Movant”) appeals the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 Motion for Post-Conviction Relief. In his appeal, Movant contends that the motion court erred when, without an evidentiary hearing, it refused to find trial counsel ineffective for failing to: (1) offer an alibi instruction; and (2) investigate and present a witness to impeach the victim with prior inconsistent statements. We affirm in part and reverse and remand in part.

Statement of the Facts and Proceedings Below

On February 24, 2000, Janeka Hills was cooking dinner in her home when a friend, George Campbell, stopped by for a visit. Ms. Hills suggested that Mr. Campbell go to buy some beer. Mr. Campbell returned with the beer and was accompanied by Movant, a mutual acquaintance of both Ms. Hills and Mr. Campbell. Ms. Hills, Mr. Campbell and Movant talked, watched television and drank beer. Eventually, Mr. Campbell and Movant left Ms. Hills’ home and Ms. Hills decided to take a shower.

As she undressed, Ms. Hills heard a knock at the kitchen door. Ms. Hills put on a robe and answered the door. At the door, Ms. Hills found Movant who requested to use her bathroom. Although she initially refused, Movant persisted and Ms. Hills eventually acquiesced. Before letting Movant inside her home, however, Ms. Hills went to her bedroom and put on a dress. Once inside, Movant used the bathroom while Ms. Hills waited near the bathroom door for Movant to finish.

When Movant exited the bathroom he approached Ms. Hills, drew a handgun from his jogging pants and demanded sex. Ms. Hills fought off Movant by kneeing him in the groin, kicking him in the arm and eventually disarming him. Ms. Hills then grabbed Movant by the testicles, pushed him away and ran toward the front door. Movant chased Ms. Hills, grabbed her from behind and held a knife to her throat. Movant threatened, “If you don’t do what I ask you, I’m going to kill you.” Scared, Ms. Hills replied, “Go ahead and do what you got to do.” As a result, Movant threw the knife away and had sex with Ms. Hills. After Movant ejaculated, Ms. Hills pushed him off of her and ran out the door into the street yelling.

Outside a man named Johnny Wilson grabbed Ms. Hills and asked her what happened. Ms. Hills explained that a man with a gun raped her. Mr. Wilson escorted Ms. Hills into his apartment and they called the police to report the incident. When the police arrived, they noticed Ms. Hills suffered minor cuts and bruises. Ms. Hills explained what happened and went with police back to her apartment. Although police did not find Movant or anyone else in the apartment, they did discover Ms. Hills’ apartment in disarray.

Thereafter, Ms. Hills went to the hospital where medical personnel conducted a sexual assault examination. A criminalist with the Highway Patrol Lab determined that the sperm found on Ms. Hills’ dress was consistent with Movant’s DNA.

Police arrested and charged Movant with forcible rape and armed criminal action. Prior to trial, Movant’s counsel filed a Notice of Intent to Rely on the Defense of Alibi. At trial, Movant testified that he sold drugs to Ms. Hills and occasionally, Ms. Hills traded sex for drugs. Movant further testified that he received a sexual favor from Ms. Hills on February 16, 2000 in exchange for drugs. Movant alleged that he did not see Ms. Hills after February 16, 2000 and he was nowhere near Ms. Hills’ home on February 24, 2000, the date of the alleged rape. Movant likewise testified that on the morning of February 25, 2000, he walked to his parents’ home in Northwoods. At trial, Movant also contended that Ms. Hills lied to protect the identity of the actual perpetrator. In his closing, trial counsel argued, among other things, that Movant was not at Ms. Hills’ home on the date of the incident.

At the close of all evidence, a jury convicted Movant of forcible rape and acquitted Movant of armed criminal action. The court sentenced Movant to thirty years imprisonment. We affirmed Movant’s conviction and sentence. State v. Reliford, 126 S.W.3d 780 (Mo.App.E.D.2004).

Movant filed a Rule 29.15 Motion for Post-Conviction Relief and appointed counsel filed an Amended Rule 29.15 Motion for Post-Conviction Relief and request for an evidentiary hearing alleging, inter alia, that trial counsel was ineffective in failing to request an alibi instruction and investigate and call Mr. Wilson to testify about Ms. Hills’ prior inconsistent statement that an ex-boyfriend or an ex-husband assaulted her. The motion court denied Movant’s Amended Rule 29.15 Motion, without an evidentiary hearing. This appeal followed.

Standard of Review

Our review of the motion court’s denial of post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. State v. Clay, 975 S.W.2d 121, 140 (Mo.banc 1998). The motion court’s findings of fact and conclusions of law are clearly erroneous when our review of the record leaves the definite and firm impression that a mistake has been made. Id.

Analysis

In his first point, Movant alleges that the motion court erred when it denied his request for an evidentiary hearing and refused to find that he was prejudiced by counsel’s failure to offer an alibi instruction on the basis of Movant’s testimony that: (1) he did not see Ms. Hills after having sex with her on February 16, 2000; (2) on February 24, 2000, he was nowhere near Ms. Hills’ home where the rape occurred; and (8) on the morning of February 25, 2000, he walked to his parents’ home in Northwoods.

In order to prevail on his claims of ineffective assistance of counsel, Movant must allege facts, not conclusively refuted by the record, demonstrating that: (1) counsel’s performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney, and (2) Movant was prejudiced by counsel’s poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Satisfaction of the first prong of the Strickland test requires Mov-ant to overcome a presumption that the challenged action constituted sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo.banc 1998). The second Strickland prong necessitates that Movant “show a reasonably probability that, but for counsel’s errors, the result of the proceeding would have been different.” Id.

The State asserts that there is no basis for a finding of ineffective assistance of counsel for failure to submit an alibi instruction because “a long line of cases from this court hold that the non-submission of an alibi instruction doesn’t prejudice a defendant.” However, all but one of the cases cited in support of the State’s contention involve direct appeals considering whether the trial court erred in refusing to submit an alibi instruction. Although the issue of failure to request submission of an alibi instruction as a basis for ineffective assistance of counsel was considered in McClain v. State, 560 S.W.2d 894 (Mo.App.Spring.1978), the trial court, unlike here, held an evidentiary hearing.

A movant is entitled to an evi-dentiary hearing on his motion for post-conviction relief if: (1) the movant alleged facts, rather than conclusions, warranting relief; (2) the facts alleged raise matters not conclusively refuted by the files and record; and (3) the matters complained resulted in prejudice to Movant. Brooks v. State, 51 S.W.3d 909, 913-14 (Mo.App.W.D.2001). “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” Wilkes v. State, 82 S.W.3d 925, 928 (Mo.banc 2002) (emphasis in original).

It is well-established that “an alibi instruction will not be given unless there is supportive evidence that the defendant was somewhere other than the place of the crime during the entire time it was being committed.” State v. Rickman, 920 S.W.2d 615, 617 (Mo.App.S.D.1996) citing State v. Williamson, 877 S.W.2d 258, 261 (Mo.App.W.D.1994). To warrant an alibi instruction, the evidence must create reasonable doubt as to the defendant’s presence at the crime scene. Rickman, 920 S.W.2d at 617. “While the sufficiency of the evidence depends on the particular facts of each case, it is generally held that [defendant’s] testimony alone is sufficient to support an instruction on alibi.” State v. Franklin, 591 S.W.2d 12, 14 (Mo.App.E.D.1979).

Our review of the record reveals that Movant adequately pleaded factual allegations demonstrating a question regarding trial counsel’s effectiveness in failing to request an alibi instruction. Specifically, Movant alleged in his Amended Motion that:

[t]he State charged that Movant committed the crimes of forcible rape and armed criminal action on February 25, 2000 at approximately 1:00 a.m. to 1:47 a.m. The jury was instructed in accordance with the charge and was instructed to find Movant guilty if it found from the evidence beyond a reasonable doubt, that ‘on or about February 25, 2000,’ Movant committed the charged crimes against [Ms.] Hills.

Movant further alleged that trial counsel’s actions did not constitute reasonable trial strategy because Movant:

filed a notice of intent to rely on alibi and testified in support of his alibi defense. Movant testified he was nowhere near [Ms.] Hills’ home on February 24, 2000, and that on February 24, 2000 at 1:45 a.m., he ‘was walking over towards (sic) [his] mother and father’s house’ which was located in Northwoods[.]
Under these circumstances, reasonably competent counsel would have requested an alibi instruction because Movant’s testimony alone supported such a request.

Additionally, Movant alleged that he suffered prejudice as a result of trial counsel’s ineffectiveness. Specifically, Movant alleged:

... There was a reasonable probability that jurors, who had been properly instructed to consider Movant’s alibi defense in deliberating Movant’s guilt, would have believed that Movant’s testimony about his whereabouts on February 24, 2000 provided Movant with a complete alibi defense for the date of “on or about February 25, 2000,” and would have acquitted Movant of forcible rape.

Although we will not opine on the probable success of the allegations contained in Movant’s Amended Motion, we believe that, in light of the foregoing, Movant raised sufficient allegations to warrant an evidentiary hearing on the issue of whether trial counsel was deficient for failing to request an alibi instruction. Point granted.

In his second point, Movant alleges that the motion court erred when it denied his request for an evidentiary hearing and refused to find trial counsel ineffective for failing to investigate and present the testimony of Mr. Wilson, a witness who could impeach Ms. Hills’ testimony with prior inconsistent statements. Specifically, Movant asserts that there is a reasonable probability that Mr. Wilson’s testimony would have given rise to reasonable doubt regarding Movant’s guilt.

As general matter, we note that the selection of witnesses is a matter of trial strategy and is therefore not a foundation for a finding of ineffective assistance of counsel. State v. Fox, 916 S.W.2d 356, 363 (MoApp. E.D.1996). To establish ineffective assistance of counsel based on trial counsel’s failure to investigate potential witnesses, Movant needed to demonstrate that the witnesses in question: (1) could have been located through reasonable investigation; (2) would have testified if called; and (3) would have provided a viable defense for Movant. State v. Dunn, 889 S.W.2d 65, 76 (Mo.App. E.D.1994). Likewise, a movant is entitled to an evi-dentiary hearing on his claim that trial counsel was ineffective for failing to call a witness to testify if the movant’s post-conviction motion adequately alleged “(1) that the witness could have been located through a reasonable investigation, (2) what the witness would have testified to if called, and (3) that the witness’s testimony would have provided a viable defense.” White v. State, 939 S.W.2d 887, 899 (Mo. banc 1997).

Here, the record refutes Movant’s allegation that trial counsel failed to adequately investigate Mr. Wilson as a potential witness. To the contrary, the record indicates that, despite trial counsel’s repeated contact with him, Ms. Wilson refused to testify if called. Indeed, Movant admits in his Amended Motion that trial counsel “knew about the existence and whereabouts of defense witness [Mr.] Wilson before Movant’s trial and trial counsel had even formally endorsed [Mr.] Wilson as a defense witness, as [Mr.] Wilson’s testimony was expected to be both material and relevant to Movant’s defense.”

Additionally, the record reflects that trial counsel attempted, unsuccessfully, to persuade Mr. Wilson to testify at trial. To that end, at the bench, trial counsel explained to the trial judge, “Your Honor, we had endorsed [Mr.] Wilson. And we were wishing to have him testify. We’ve been in contact with him, but Mr. Wilson is being somewhat uncooperative. It’s my understanding he has a number of warrants out for his arrest, and is refusing to appear in court. And we’ve apparently never obtained service on him.” Accordingly, even in the absence of an evidentiary hearing, the record contains sufficient evidence to support the motion court’s denial of Movant’s claim of ineffective assistance for failing to investigate and call Mr. Wilson to testify at trial. Point denied.

Conclusion

The judgment of the motion court is affirmed in part and reversed in part. The cause is remanded for an evidentiary hearing on Movant’s claim that trial counsel was ineffective for failing to request an alibi instruction.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

      . Notably, trial counsel then sought a continuance so as to give him additional time to locate and serve Mr. Wilson. However, the trial court denied trial counsel’s request for a continuance,


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Shane M. BEGGS, Appellant.
    No. WD 64068.
    Missouri Court of Appeals, Western District.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Craig Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ELLIS, JJ.
   EDWIN H. SMITH, Chief Judge.

Shane M. Beggs appeals the judgment of his convictions, after a jury trial in the Circuit Court of Carroll County, on Count I, of conspiracy to manufacture methamphetamine, § 564.016; on Count II, of possession of methamphetamine, § 195.202; and, on Count III, of possession of a chemical with intent to create methamphetamine, § 195.420. As a result of his convictions, the appellant was sentenced, as a prior drug offender, § 195.275, to concurrent prison terms in the Missouri Department of Corrections of fifteen years on each count, which were ordered to run consecutively with sentences imposed in unrelated cases in Jasper, Greene, and Polk Counties.

The appellant raises four points on appeal. In Point I, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count I, conspiracy to manufacture methamphetamine, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissi-ble case on the requisite proof element that he had agreed with a third party to manufacture methamphetamine. In Point II, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count II, possession of methamphetamine, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof element that he “consciously and intentionally possessed the methamphetamine or that he had an awareness of the drug’s presence and nature.” In Point III, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count III, possession of lithium batteries with the intent to create methamphetamine, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof elements that: (1) he “intended for another person to convert or alter the lithium batteries to create methamphetamine”; or, (2) he “acted together with unknown third person with the purpose of promoting or furthering the conversion or alteration of the lithium batteries to create methamphetamine.” In Point IV, he claims that the trial court plainly-erred in entering its judgment convicting him of both Count I, conspiracy to manufacture methamphetamine, and Count III, possession of a chemical, with the intent to create a controlled substance, because it violated the double jeopardy protection of the conspiracy statute, § 564.016.7, prohibiting a person from being “charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense.”

We affirm, in part, and reverse, in part.

Facts

On August 11, 2003, the appellant was charged, by indictment, in the Circuit Court of Lafayette County, with one count of conspiracy to manufacture methamphetamine, § 564.016; one count of possession of methamphetamine, § 195.202; and one count of possession of a chemical substance with an intent to create methamphetamine, § 195.420. The charges arose from events occurring on July 11, 2003, and July 12, 2003.

At around 4 a.m. on July 11, 2003, Officer Gary Frisendorf of the Concordia, Missouri, Police Department, observed a 1985 Chevy Blazer running a stop sign and driving erratically. Officer Frisendorf pulled the car over and approached the driver, who turned out to be the appellant. Officer Frisendorf observed that the appellant seemed nervous so he asked him to step out of the vehicle. While exiting the vehicle, the appellant almost fell down. As a result, Officer Frisendorf thought the appellant was intoxicated, either from alcohol or drugs, so he had him perform numerous field sobriety tests. The appellant performed and failed the walk-and-turn test, the one-leg-stand test, the horizontal gaze nystagmus test, and the alphabet test. After failing these tests, Officer Fri-sendorf concluded that the appellant was under the influence of either alcohol or drugs, and arrested him.

After placing the appellant under arrest, Officer Frisendorf transported the appellant to the Concordia Police Station and performed a Breathalyzer test. The test indicated that he had not consumed any alcohol, so Officer Frisendorf asked him why he seemed impaired. The appellant admitted that he had smoked methamphetamine earlier in the evening. The appellant was then transported to the Lafayette County Jail.

Detectives Fred Alkire and Donnie Hammond of the Lafayette County Narcotics Unit interviewed the appellant. After being read his Miranda rights, the appellant explained to the two detectives how he had missed the Odessa exit and ended up driving to Concordia where he was arrested for driving under the influence of methamphetamine. The appellant then explained that he lived with his girlfriend, Michelle Gould, at 301 W. Ottway in Odessa, Missouri. He admitted that there were pseudoephedrine pills, lithium batteries, and methamphetamine at his apartment.

Later that same day, two narcotic agents with the Lafayette County Narcotics Unit, Don Barker and William Falls, executed a search warrant for the appellant’s apartment. The apartment included two bedrooms, a living room, a bathroom, a kitchen, a large foyer, and a garage. In the garage, Barker and Falls found dozens of empty pseudoephedrine boxes, which would have held over 4,000 pseudoephed-rine pills. In a closet, the agents found twenty-two packages containing eighty-eight lithium batteries. In the master bedroom, they found a set of scales hidden in a flowerpot on top of the wardrobe. On the set of scales, they found a small amount of what was later determined to be methamphetamine.

The appellant’s case proceeded to a jury trial in the Circuit Court of Carroll County, Missouri. At trial, Gould testified for the State. She testified that the appellant had moved in with her in late May or early June of 2003 and both of them had a “methamphetamine problem.” After the appellant moved in, Gould testified that they began to go to stores to buy pseu-doephedrine pills and lithium batteries with the intention of manufacturing their own methamphetamine. Gould also testified that she and the appellant had traded some of the pills for a gram and a half of methamphetamine, which they smoked. She further testified that the methamphetamine found on the scale was probably left over from the gram and a half that they had smoked.

At the close of the State’s evidence, the appellant made a motion for a directed verdict of acquittal, which the trial court overruled. The appellant presented no evidence in his defense. The jury found the appellant guilty of all four offenses charged. The trial court subsequently sentenced the appellant to fifteen years on each count, to run concurrently.

This appeal follows.

Plain Error Standard of Review

The appellant concedes that he did not properly preserve his claims of error for appellate review because he failed to file a motion for new trial in a timely fashion. Hence, he requests plain error review, pursuant to Rule 30.20.

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 [a] 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. Mickle, 164 S.W.3d 33, 58 (Mo.App.2005). “In determining whether to exercise its discretion under plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed a ‘plain’ error, which resulted in manifest injustice or a miscarriage of justice.” Id. Plain error for purposes of Rule 30.20 is error that is evident, obvious, and clear. Id.

Plain error review involves two steps. First, the court must determine whether the trial court committed an evident, obvious and clear error, which affected the substantial rights of the appellant. Id. at 58-59. As in the case of review for “regular” error, not every obvious error found in plain error review mandates reversal. Id. at 59. In the case of review for “regular” error, to be reversible, the found error must have prejudiced the appellant. Mickle, 164 S.W.3d at 59. Likewise, in the case of review for plain error, the error must have prejudiced the appellant, except such prejudice must rise to the level of manifest injustice or a miscarriage of justice. Id. Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Id.

I.

In both Points I and IV, the appellant attacks his conviction on Count I, conspiracy to manufacture methamphetamine. In Point I, he claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count I, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissible ease on the requisite proof element that he had agreed with a third party to manufacture methamphetamine. In Point IV, he claims that the trial court plainly erred in entering its judgment convicting him of both conspiracy to manufacture methamphetamine, Count I, and possession of a chemical with the intent to create a controlled substance, Count III, because it violated the double jeopardy protection of the conspiracy statute, § 564.016.7, prohibiting a person from being “charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense” in that the same course of conduct, the possession of lithium batteries, formed the basis for conviction as to both Counts I and III. Necessarily, if the appellant is successful on his claim in Point IV, his claim in Point I would be moot such that we would not have to address it. However, the appellant’s claim in Point IV would be moot if we find for him on his claim in Point III in which he attacks the sufficiency of the evidence to convict as to Count III. This is so in that if the appellant’s conviction on Count III is reversed for insufficient evidence to convict, there would not be an underlying offense with which to merge his conspiracy conviction in Count I. Hence, we will address the appellant’s claim in Point III before we address his claim in Point IV. If the appellant loses on Point III, we will address Point IV. If he wins on Point IV, Point I will then be moot; but if he loses on Point IV, we will address Point I. If the appellant wins on Point III, Point IV will be moot, and we will address Point I.

In Point III, the appellant claims that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count III, possession of lithium batteries with the intent to create methamphetamine, § 195.420, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof elements that: (1) he “intended for another person to convert or alter the lithium batteries to create methamphetamine”; or, (2) he “acted together with unknown third person with the purpose of promoting or furthering the conversion or alteration of the lithium batteries to create methamphetamine.” Specifically, he claims that the State failed to make a submissible case of accomplice liability on the offense charged in that there was no evidence that either he, Gould, or an unknown third person intended to convert or otherwise alter the lithium batteries to create methamphetamine or that he acted together with Gould or an unknown thud person with the purpose of promoting or furthering the conversion or alteration of the batteries. We disagree.

The question of sufficiency arises before the case is put to the jury and is really an issue of whether the case should have been submitted to the jury. Mickle, 164 S.W.3d at 41 (quoting State v. Johnson, 62 S.W.3d 61, 69-70 (Mo.App.2001)). “Therefore, any guilty verdict subsequently rendered by the jury is wholly irrelevant to the question of whether the case was sufficient to go to the jury at all.” Id. “The Court’s review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt.” Id. In determining whether the State made a submissible case, our review is limited to determining whether the evidence is sufficient for a reasonable jury to infer each and every element of the offense charged. Id. Thus, we do not weigh the evidence but view it in a light most favorable to the State. Id. To that end, all evidence supporting the jury’s verdict is taken as true, and all evidence to the contrary is ignored. Mickle, 164 S.W.3d at 41.

In Count III, the appellant was charged with possession of lithium batteries with intent to manufacture methamphetamine, in violation of § 195.420.1, which reads:

It is unlawful for any person to possess chemicals listed in subsection 2 of section 195.400, or reagents, or solvents, or any other chemicals proven to be precursor ingredients of methamphetamine or amphetamine, as established by expert testimony pursuant to subsection 3 of this section, with the intent to manufacture, compound, convert, produce, process, prepare, test, or otherwise alter that chemical to create a controlled substance.

At trial, the State, in accordance with § 195.420.1, .3, introduced expert testimony to show that the lithium contained in lithium batteries is a precursor ingredient of methamphetamine making it unlawful, pursuant to § 195.420.1, to possess such batteries with an intent to manufacture methamphetamine. See State v. Todd, 70 S.W.3d 509, 528 (Mo.App.2002); State v. Condict, 65 S.W.3d 6, 10 (Mo.App.2001).

Count III was submitted to the jury on a theory of accomplice liability, pursuant to § 562.041, which reads, in pertinent part: “A person is criminally responsible for the conduct of another when ... [ejither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.” As to accomplice liability, “Missouri has eliminated the distinction between principals and accessories, and now, all persons who act in concert to commit a crime are equally guilty.” State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001). To make a submissible case of accomplice liability, the State has to show that the defendant “associated himself with the venture or participated in the crime in some manner,” but does not have to show that he “personally committed every element of the crime; mere encouragement is enough.” State v. Neel, 81 S.W.3d 86, 91 (Mo.App.2002). “Any evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction. The law imputes to [the defendant] the criminal agency of his accomplices.” Id. (citation omitted).

As charged and submitted to the jury, on the theory of accomplice liability, to convict the appellant of creation of a controlled substance, pursuant to § 195.420.1, the State was required to show that: (1) either he or Gould possessed lithium batteries with the intent to create methamphetamine; and, (2) with the purpose of promoting or furthering the creation of methamphetamine, he acted together with Gould with the intent to manufacture methamphetamine. Todd, 70 S.W.3d at 520. While the appellant does not challenge the sufficiency of the evidence to show that either he or Gould, or both, possessed lithium batteries, he does challenge the sufficiency of the evidence to show that either he or she had the requisite intent to create methamphetamine and that he acted in concert with Gould to further that purpose. Hence, for the State to make a submissible case on Count III, there had to be evidence in the record from which the jury could have inferred reasonably that Gould possessed lithium batteries with an intent to manufacture methamphetamine and that with the purpose of promoting that criminal endeavor, the appellant acted in concert with Gould with an intent to manufacture methamphetamine. The intent to manufacture methamphetamine may be proven by showing that either the defendant himself intended to manufacture methamphetamine or that he gave it to a third person to make. State v. White, 14 S.W.3d 121, 127 (Mo.App.2000); State v. Edgar, 2 S.W.3d 896, 899 (Mo.App.1999). Here, there is evidence from which the jury could have reasonably inferred either scenario.

Gould testified that both she and the appellant had methamphetamine “problems” and that they had purchased the lithium batteries and pseudoephedrine pills shortly after he moved in with her, with the initial intent to manufacture methamphetamine. She further testified that she knew that the lithium batteries and pseu-doephedrine pills were used in the manufacture of methamphetamine and that they later decided to trade the batteries and pseudoephedrine for methamphetamine and cash. The record reflects that when the appellant was told by the police that he was going to be charged with conspiracy to manufacture methamphetamine, he responded, ‘You must have found the batteries.” This clearly demonstrates that he knew that the lithium batteries could be used to manufacture methamphetamine. Gould also testified that the appellant was with her when she traded the pseu-doephedrine pills for methamphetamine and cash. She testified that the batteries were not traded because she could not find them. From this evidence, a jury could have reasonably inferred that either Gould and the appellant possessed the lithium batteries with an intent to manufacture methamphetamine themselves or that they did so with an intent to trade them to a third party, who they knew would use them for the manufacture of methamphetamine. This was sufficient for the jury to find that both Gould and the appellant possessed the lithium batteries with an intent that they be used to manufacture methamphetamine, which obviously was sufficient for the State to make a submissi-ble case of accomplice liability against the appellant on Count III. As such, we decline plain error review of the claim in this point in that it is readily apparent that there is no merit to the appellant’s claim in this point.

Point denied.

Having found in Point III that the evidence was sufficient to make a submissible case against the appellant on Count III, we now turn to Point IV.

II.

In Point IV, the appellant claims that the trial court plainly erred in entering its judgment convicting him of both conspiracy to manufacture methamphetamine, Count I, and possession of a chemical with the intent to create a controlled substance, Count III, because it violated the double jeopardy protection of the conspiracy statute, § 564.016.7, prohibiting a person from being “charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense.” Specifically, he claims that the double jeopardy protection of the conspiracy statute, § 564.016.7, was violated in that the same course of criminal conduct, possession of the lithium batteries with the intent to manufacture methamphetamine, formed the basis for conviction as to both Counts I and III. We agree.

In State v. Common, the Missouri Supreme Court recognized the general rule, that “a conspiracy to commit a crime, and the crime that is the object of the conspiracy, are separate and distinct offenses, and a defendant may be convicted of, and sentenced for, each offense.” 695 S.W.2d 443, 447 (Mo. banc 1985). However, it also recognized that the General Assembly, “through the enactment of § 564.016.7 ..., has a stated policy that a person shall not be convicted or sentenced on the basis of the same course of conduct for both the actual commission of an offense and a conspiracy to commit that offense.” Id, Section 564.016.7 reads, in pertinent part: “[a] person may not be charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense.” “The fundamental purpose of Section 564.016.7 is ‘to prohibit the State only from convicting a person for conspiracy where there has been a conviction for the substantive offense which was the target of the conspiracy.’” State v. Angle, 146 S.W.3d 4, 13 (Mo.App.2004) (quoting Comman, 695 S.W.2d at 448). “The statute provides for the merger of the conspiracy into the conviction for that substantive offense.” Id.

In claiming that § 564.016.7 clearly prohibited the trial court from entering a judgment of conviction against him on both Counts I and III, the appellant contends that the target of the conspiracy charged in Count I, conspiracy to manufacture methamphetamine, was achieved in convicting him on Count III, possession of the lithium batteries with an intent to manufacture methamphetamine. The State contends, however, that § 564.016.7 did not prohibit the appellant’s conviction on both counts in that the appellant was not charged with and convicted of conspiring to possess precursors to methamphetamine, in Count I, such that his conviction on Count III, for possessing lithium batteries with an intent to manufacture methamphetamine, did not achieve the target of the conspiracy charged in Count I. We agree with the appellant.

The same argument that the State makes in this case was made by the State in State v. Angle, 146 S.W.3d at 13. Like in the present case, the defendant there was charged with conspiracy to manufacture methamphetamine. In so charging the defendant, the State alleged that “in furtherance of the conspiracy, one or more of [the defendant and the person with whom he had allegedly agreed to obtain precursors] obtained precursors to manufacture methamphetamine.” Id. at 13-14. Similarly, in the present case, the State in charging the appellant in Count I with conspiracy to manufacture methamphetamine alleged that “in furtherance of the conspiracy the defendant and/or Michelle Gould acquired over 70 boxes of pseu-doephedrine pills and transferred some of them to another member of the conspiracy and acquired 88 lithium batteries.” In rejecting the State’s argument in Angle, the court reasoned that there were two targets of the conspiracy charge: “(1) to obtain methamphetamine precursor ingredients; and (2) to manufacture methamphetamine[,]” the first of which was achieved when the defendant was convicted, under § 195.420, for possessing a chemical (sulfuric acid) with intent to manufacture methamphetamine, and was convicted, under § 195.246, for possession of pseudoephedrine with intent to manufacture. Id. at 13. Hence, the court held that the conspiracy charge, in Count II, had merged into the possession convictions on Counts I and III, pursuant to § 564.016.7. Id. at 14.

Pseudoephedrine and lithium are both precursor ingredients to the manufacture of methamphetamine. Thus, in charging the appellant with conspiracy to manufacture methamphetamine, in Count I, the State, in alleging that “in furtherance of the conspiracy the defendant and/or Michelle Gould acquired over 70 boxes of pseudoephedrine pills and transferred some of them to another member of the conspiracy and acquired 88 lithium batteries,” alleged, in effect, that in furtherance of the conspiracy, the appellant and/or Gould, like the defendant in Angle, obtained precursors to manufacture methamphetamine. Hence, in the case at bar, when the appellant was convicted, on Count III, under § 195.420, of possessing lithium batteries with an intent to manufacture methamphetamine, one of the targets of the conspiracy charge alleged in Count I was achieved such that § 564.016.7 caused Count I to merge into Count III so that the trial court was prohibited from entering a judgment convicting the appellant of both Counts I arid III. See Angle, 146 S.W.3d at 14.

In attempting to distinguish Angle, the State contends that unlike in that case, the appellant here “was never charged with conspiring to obtain precursors.” Neither was the defendant in Angle. 146 S.W.Sd at 13-14. As Angle makes crystal clear, the issue, in determining whether § 564.016.7 was violated, is not whether the defendant was “charged” with the offense of conspiring to obtain precursors, but whether in charging a conspiracy to manufacture methamphetamine it was alleged that in furtherance of that conspiracy he and/or an accomplice obtained precursors, creating what the Angle court referred to as a “two-step” conspiracy, creating two targets, which we discuss, supra. Id. at 14.

In Angle, the court found that the trial court’s convicting the defendant on the conspiracy count, that had merged into the possession counts, pursuant to § 564.016.7, “resulted in manifest injustice as a violation of [the defendant’s] constitutional right against double jeopardy,” and reversed, pursuant to Rule 30.20. Id. Accordingly, we reverse the appellant’s conspiracy conviction in Count I, rendering moot his claim in Point I, challenging the sufficiency of the evidence to make a sub-missible case on that count.

III.

As to the appellant’s remaining claim, he asserts, in Point II, that the trial court plainly erred in overruling his motion for judgment of acquittal, as to Count II, possession of methamphetamine, in violation of § 195.202, at the close of the State’s and all the evidence, because the State failed, as a matter of due process, to make a submissible case on the requisite proof element that he “consciously and intentionally possessed the methamphetamine or that he had an awareness of the drug’s presence and nature.” We disagree.

As noted supra, in determining whether the State made a submissible case, our review is limited to determining whether the evidence is sufficient for a reasonable jury to infer each and every element of the offense charged. Mickle, 164 S.W.3d at 41 (quoting Johnson, 62 S.W.3d at 69-70). Thus, we do not weigh the evidence, but view in a light most favorable to the State. Id. To that end, all evidence supporting the jury’s verdict is taken as true and all evidence to the contrary is ignored. Id.

In Count II of the information, the State charged the appellant with the class C felony of possession of a controlled substance, in violation of § 195.202, which reads, in pertinent part: “Except as authorized by sections 195.005 to 195.425, it is unlawful for any person to possess or have under his control a controlled substance.” § 195.202.1. The State alleged that “between July 1, 2003, and July 11, 2003, ... the [appellant], acting either alone or knowingly in concert with another, possessed methamphetamine, a controlled substance, knowing of its presence and nature.” Thus, to convict the appellant, as a principal in Count II, the State had to prove that he: (1) was in conscious and intentional possession of methamphetamine, either actual or constructive; and, (2) was aware of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992); State v. Bacon, 156 S.W.3d 372, 377 (Mo.App.2005). Both elements can be shown by circumstantial evidence. Purlee, 839 S.W.2d at 587. The appellant claims in this point that the State failed to make a submissible case as to both proof elements of § 195.202 such that it was plain error for the trial court to have overruled his motions for acquittal. The issue then for us is whether the evidence, when viewed in a light most favorable to the State, was sufficient to allow the jury to find both requisite proof elements.

“Possession,” for purposes of § 195.202, is defined in § 195.010(34), which reads:

“Possessed” or “possessing a controlled substance”, a person, "with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession may also be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint.

The State contends that the evidence was sufficient to make a submissible case of constructive possession of the methamphetamine. We agree.

“[P]roof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the substance was found.” Purlee, 839 S.W.2d at 588. If the defendant has exclusive possession of the premises, an inference of possession of the substance is raised. Id.; Bacon, 156 S.W.3d at 378. However, if there is joint control of the premises, further evidence connecting the defendant to the substance is required to convict. Purlee, 839 S.W.2d at 588; Bacon, 156 S.W.3d at 378.

[B]eing a guest in the premises of another where drugs are found is not sufficient to sustain a conviction for possession of controlled substances. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control.

State v. Purlee, 839 S.W.2d at 588. In State v. Bacon, this court stated that:

[s]ome of the types of additional evidence that may suffice to support a conviction where there is joint control of the premises are ‘routine access to an area where such substances are kept, the presence of large quantifies of the substance at the scene where appellant is arrested, admissions of the accused, ... being in close proximity to drugs or drug paraphernalia in plain view of the police, [and the] mixture of defendant’s personal belongings with the drugs.’

156 S.W.3d at 378. In cases of joint possession, the courts will examine the totality of the circumstances to determine whether the defendant had constructive possession of the controlled substance. Mickle, 164 S.W.3d at 44.

The record, in a light most favorable to the State, shows that on July 11, 2003, the appellant was stopped by Officer Frisen-dorf for running a stop sign and erratic driving in Concordia, Missouri, was arrested, and taken to the Concordia Police Station. Once there, the appellant submitted to a Breathalyzer test, which indicated he was not under the influence of alcohol. When asked why he appeared to be impaired, the appellant admitted that he had smoked methamphetamine. During a subsequent interview, he admitted that some of the methamphetamine he had been smoking was left at his apartment at 301 W. Ottway in Odessa, Missouri. Pursuant to a search warrant issued for the apartment, methamphetamine was found on a set of scales found in the master bedroom, which the appellant and Gould shared. From this, the jury could reasonably have inferred that the appellant would have had easy and .routine access to the location where the methamphetamine was seized. More importantly, Gould testified that the methamphetamine found on the scales was “probably” left over from the gram and a half that she and appellant had purchased and used together. And, the appellant admitted to the police that some of the methamphetamine he had been smoking was left in his apartment. From this, the jury could reasonably have inferred that the appellant intended to exercise control over the methamphetamine that was seized. See State v. Elmore, 43 S.W.3d 421, 427 (Mo.App.2001). In addition, the jury could reasonably have inferred from this evidence that the appellant was aware of the presence and nature of the substance found on the scales as being methamphetamine.

Given the apparent sufficiency of the evidence to make a submissible case on Count II, we decline plain error review.

Point denied.

Conclusion

For the foregoing reasons, we affirm the appellant’s convictions as to Counts II and III, but reverse as to his conviction on Count I.

LOWENSTEIN and ELLIS, JJ., concur.

      . All statutory references are to RSMo, 2000, unless otherwise indicated.

      . All rule references are to Missouri Rules of Criminal Procedure, 2005, unless otherwise indicated.


author: PER CURIAM.

text:
    Stanley J. McCLATCHEY, Appellant, v. Juliann Marie SAVONA, Respondent.
    No. WD 64908.
    Missouri Court of Appeals, Western District.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11, 2006.
    Albert W.L. Moore, Jr. Independence, MO, for Appellant.
    Juliann Marie Savona Independence, MO, Respondent pro se.

      Before: SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Stanley J. McClatchey obtained an interlocutory default judgment against Ju-liann Savona under Rule 74.05. Following a default hearing on the issue of damages, the trial court entered judgment awarding Mr. McClatchey a total of $60,052 in damages. Mr. McClatchey appeals, claiming that the trial court erred in denying him compensatory damages for the loss of his deceased wife’s services and in denying punitive damages. We affirm the judgment pursuant to Rule 84.16(b).