State v. Hendricks

WHITE, Judge,

dissents.

This conviction hinges on the question of what it means to “offer for sale.” This is a crucial issue, since the expansive reading that forms the basis for this conviction vastly enlarges the class of conduct liable to severe criminal sanctions. The majority refuses to address this important question. I would answer it, and I would reverse.

Sufficiency of Appellant’s Brief

The majority bases its refusal to rule on a uncharitably narrow reading of the appellant’s brief. Certainly, the brief is far from perfect. But I am far less inclined than is the majority to hold the deficiencies of his State-appointed counsel against Mr. Hendricks. He is currently imprisoned in the Ozark Correctional Center. If it is to condemn him to serve out his seven year sentence, the majority ought to at least address the substance of his appeal. It is simply not the case that the Court strictly enforces briefing rules in the way that the majority suggests. Today we hand down an opinion that describes a far less draconian approach: “this Court’s policy is to decide a case on its merits rather than on technical deficiencies in the brief. Generally, we will not exercise discretion to disregard a defective point unless the deficiency impedes disposition on the merits.”1 The quality of the appellant’s brief did not preclude the court of appeals from deciding the case on the merits. In fact, that court found the question to be so compelling as to necessitate transfer here. The quality of the briefing does not so obscure the issue that this Court cannot also make a decision.

*212Another concern in requiring briefs that address the issues presented is fairness. We have held that briefs must reasonably isolate the issue so as to ensure that the opposing side has a chance to respond.2 Here, again, there is no doubt that the State recognized the issue and was able to make its case. The respondent’s brief does not claim that appellant’s brief is fatally insufficient; in fact, the State’s brief contains a lengthy section entitled “Issues Raised in Appellant’s Brief.” The majority is alone in being unable to discern the issue.

Offer for Sale

The issue is one of statutory interpretation.3 The principal opinion sets out the relevant statutory language. Mr. Hendricks was convicted of delivery of cocaine. Delivery includes a sale. A sale includes “offer therefor.” Thus, what is prohibited is to offer a controlled substance for sale. As the majority notes, “offer” is not a defined term. As the State urges, we give undefined statutory terms their plain meaning. “To determine the ordinary meaning of a term, this Court consults standard English language dictionaries.” 4 There are two relevant definitions of “offer.” One emphasizes the physical presentment of the object: “[T]o present for acceptance or rejection: hold out: TENDER, PROFFER....”5 The sense urged by the State is “to declare one’s readiness or willingness,”6 as the evidence shows Mr. Hendricks did. But that sense of offer is “used with an infinitive object....” The statute does not hold liable for a sale one who offers to sell a controlled substance. That would criminalize the act of declaring one’s readiness to commit a crime — what the State claims that this statute does. But both the State’s brief and the majority opinion emphasize the difference in meanings. The conduct at issue here is repeatedly described — never as “offer for sale” — but only with the phrase “offer to sell.” That phrase much more accurately describes the conduct, but is not what the legislature chose to criminalize.

Thus, Mr. Hendricks’s argument, which the majority purports to find nonsensical is directly on point. If the legislature had chosen to criminalize mere words declaring one to be willing to engage in criminal conduct, it could have done so by proscribing the conduct “offer to sell.”7 Instead, what the legislature actually did was to prohibit the presentment of drugs for sale. Thus, proof of the physical presence of drugs is a required element of the crime of offering drugs for sale. This is eminently reasonable in light of the substance-centered nature of the drug statute. The list of controlled substances is long, technical and concerned with details about whether the controlled substance contains salts or precursors of drugs, what its purity and chemical composition are.8 Penalties are based upon the actual weight of the substance in question.9 As appellant points out, the legislature has separately criminalized (with a much less severe penalty) the delivery of an imitation controlled substance.10 This is not, as the majority misconceives it, an argument about the power of the legislature to provide two statutes that may be violated by the same conduct. It is an argument about legislative intent. It makes no sense for the legislature to have enacted a *213separate crime for delivering an imitation controlled substance when — in every single case — such conduct would already violate the more severe and easier to prove crime of offering to sell a controlled substance. The more reasonable explanation is that the legislature merely intended to specify that a sale did not have to be consummated in order to be prohibited. The focus of this crime is delivery. The presentment of a substance comes much closer to delivery than does mere discussion.

I am not blind to the fact that the conduct of Mr. Hendricks and his association with his sister’s drug sale give rise to the strong inference that he was engaged in nefarious activity. Perhaps if the officer had returned the next day, Mr. Hendricks would have consummated the sale. Mr. Hendricks might have been chargeable as a conspirator or accomplice to his sister’s sale. The legislature has provided numerous weapons to combat even the anticipation of drug transactions. On his conduct alone, Mr. Hendricks might have been charged with an attempt to deliver cocaine. But all of these theories have higher, more specific evidentiary burdens than the one the State suggests, which requires evidence of words, not deeds. We are not free — merely because we find this conduct reprehensible — to expand the legislature’s words to cover it. By doing so we risk the danger recognized by the court of appeals of “punish[ing] those making sarcastic or insincere statements motivated by bravado.” If the legislature wishes to criminalize such behavior, it must speak more clearly than it has. Until then, we are compelled to interpret its penal laws strictly in favor of the accused.11

Despite the majority’s inability to understand Mr. Hendricks’s brief, he raises a crucially important question. It should at least be answered. Since the majority finds his appellate counsel’s brief so flawed, I hope it will be willing to answer the question when he presents his motion to recall the mandate.

I respectfully dissent.

. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997); See also Brown v. Hamid, 856 S.W.2d 51, 53 (Mo. banc 1993) (Holding that "cases should be heard on the merits if possible”); Thummel v. King, 570 S.W.2d 679, 690 (Mo. banc 1978) ("On numerous occasions we have expressed our reluctance to punish innocent parties for the shortcomings of counsel on appeal. As we have often declared, it is the policy of this court to decide cases on the merits whenever possible.”)

. Thummel, 570 S.W.2d at 686.

. As the court of appeals noted, there is also a serious question as to whether sufficient evidence of a culpable mental state was presented to convict Mr. Hendricks. Since Mr. Hendricks does not squarely address this point in his brief, and since X believe the point he does raise compels reversal, I will not discuss this issue.

. Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 508 (Mo. banc 1997) .

. Webster’s Third New International Dictionary 1566 (1981) (emphasis in the original).

. Id.

. And the legislature has, in fact, done so in other areas. See, e.g. State v. Roberts, 779 S.W.2d 576, 578 (Mo.1989) (upholding a conviction based upon a statute that imposed prostitution liability on one who “offers or agrees to engage in sexual conduct with another person in return for something of value ....”) (emphasis supplied).

. Section 195.017, RSMo 1994.

. See, e.g., sec. 195.211.3, RSMo 1994.

. Section 195.242, RSMo 1994.

. See, e.g., State v. Hobokin, 768 S.W.2d 76, 77 (Mo.1989).