IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI, )

)

Appellant, )

)

v. ) WD76646

)

TRAVIS LOVETT, ) Opinion filed: April 22, 2014

)

Respondent. )

APPEAL FROM THE CIRCUIT COURT OF MACON COUNTY, MISSOURI

The Honorable Frederick Paul Tucker, Judge

Before Division Four: James E. Welsh, Chief Judge,

Joseph M. Ellis, Judge and Mary Rhodes Russell, Special Judge

The State appeals from a judgment entered by the Circuit Court of Macon County 

that presumably dismisses the information charging Respondent Travis S. Lovett with 

possession of an imitation controlled substance with intent to distribute, § 195.242,

1

and 

possession of drug paraphernalia, § 195.233. The State contends that the trial court 

erred in dismissing the information because the information sufficiently states and 

apprises Respondent of the essential elements of the charged offenses. Respondent 

avers that the trial court correctly dismissed the information because Respondent's 

 

1

All statutory citations are to RSMo 2000 unless otherwise noted. 
2

conduct does not come within the purview of the imitation controlled substance statutes. 

For the following reasons, the appeal is dismissed. 

On March 13, 2012, Respondent was charged by information with one count of 

possession of an imitation controlled substance with the intent to distribute and one 

count of possession of drug paraphernalia. These charges arose out of an incident in 

2011 in which Macon police officers responded to the apartment of Stephen Wright 

following a report of a possible burglary in progress.2 Through the apartment's glass 

storm door, police observed Respondent and Wright using glass pipes or water bongs 

to smoke what the officers believed to be marijuana. When questioned, Wright 

explained that the substance they were smoking was incense, not marijuana.

Wright consented to police searching his apartment. Upon doing so, police found 

storage totes containing what officers described as a "green plant material" similar in 

appearance to marijuana. The substance was packaged in clear Ziploc baggies with 

homemade labels stating "Sedation Incense" and indicating the amount of the 

substance the package contained. Another tote contained two digital scales, a 

measuring cup, baggies and labels, and more of the green plant material. Police also 

recovered a Ziploc bag from Wright's room that contained eight pills, which were later 

determined to be Clonazepam, a Schedule IV controlled substance. 

Wright further explained to the officers that he and Respondent purchased the 

green plant material in bulk over the Internet and added their own mixture of chemicals 

to it before weighing, packaging, and labeling it for sale. He stated that despite the "not 

 

2

The facts recited herein are taken from the trial court’s “Findings of Fact, Conclusions of Law, and 

Judgment.” No transcript has been filed, and the record otherwise does not inform us as to the 

evidentiary source of those factual findings or when and how such facts were presented to the trial court. 

Thus, they are presented here merely for context.
3

for human consumption" label they put on the packages, people typically purchased the 

incense to smoke because it produces a high similar to that of marijuana. He also told 

police that he had recently sold one kilo of the green plant material to Respondent for 

resale. Respondent owned two stores in which he intended to sell the incense. 

The following month, Police executed a search warrant at one of Respondent's 

stores and recovered more packages of the green plant material labeled "Sedation."

The packages were individually labeled according to scent/flavor and ranged in weight 

from "3 grams" to "1 pound." Police indicated that the incense was priced similar to 

what the same quantity of marijuana would cost. 

Once charged, Respondent filed a motion to dismiss the information.3 In the 

motion, Respondent asserted that the information should be dismissed because § 

195.010(21), which defines the term "imitation controlled substance," is ambiguous and,

when the rule of lenity is applied, any ambiguity in § 195.010(21) had to be resolved in 

his favor. In particular, Respondent contended that § 195.010(21) was ambiguous in 

that it defined an imitation controlled substance as that "which by dosage unit 

appearance (including color, shape, size and markings), or by representations made,

would lead a reasonable person to believe that the substance is a controlled 

substance." Respondent further asserted that § 195.010(21) is unconstitutionally vague 

in that it fails to give a person of ordinary intelligence fair notice that his or her 

contemplated conduct if forbidden. Alternatively, Respondent averred that the 

information must be dismissed because it failed to state a crime. More specifically,

Respondent argued that the legislature intended § 195.242 to prohibit "instances where 

individuals, [who are] engaged in illegal drug trafficking, deliver or possess a non-

 

3 Wright was also charged as a result of the incident and, likewise, filed a motion to dismiss. 
4

controlled substance representing it to be an actual controlled substance" and that,

under the circumstances of this case, no reasonable person would believe the incense 

was a controlled substance. 

On July 10, 2013, the trial court entered its "Findings of Fact, Conclusions of 

Law, and Judgment." The trial court begins by stating that "Wright has filed a Motion to 

Dismiss – which motion Defendant Lovett has orally joined – arguing that the statute 

should not apply to Defendants' conduct." The trial court then sets forth its factual 

findings and notes that the parties were "unable to find any Missouri appellate decisions 

addressing sufficiency of the evidence in situations where a defendant is alleged to 

have possessed or sold an item knowing that it was not a controlled substance, but 

claiming that it was 'similar' to a controlled substance in its effects when used." The trial 

court further explained that "[c]ases concerning the sufficiency of the evidence in 

matters involving imitation controlled substances have uniformly involved situations 

where the defendant was alleged to have made 'direct representations' that the item in 

question was a controlled substance" or "situations where a defendant had engaged in 

multiple drug sales to undercover agents and one of those sales involved items which 

were later determined not to [be] an actual controlled substance." After acknowledging 

the types of cases in which imitation controlled substance charges typically arise, the 

trial court found that "[t]here is no evidence in this case that either defendant told 

anyone that the material in question was marijuana, or that either defendant had 

previously sold marijuana." The trial court then states that "[i]t is hoped that an 

appellate decision will help clear up this area of the law. So Ordered[.]" 
5

The State brings this appeal, claiming that the trial court's judgment is erroneous 

in that the information sufficiently states and apprises Respondent of the essential 

elements of the charged offenses. Regrettably, however, the procedural posture of this 

case is murky. The parties' arguments are lacking in clarity, as is the judgment. 

Consequently, we are unable to determine exactly what the trial court did, or how it 

reached its decision, and that effectively precludes appellate review. 

By way of explanation, we first observe that the judgment fails to indicate what 

relief is being granted. At the judgment's conclusion, the trial court simply states "So 

ordered[.]" And although both parties treat the judgment as granting Respondent's 

motion to dismiss, nothing in the judgment expressly states or indicates that the trial 

court is granting such relief. Moreover, even if we assume, arguendo, that the judgment 

granted Respondent's motion to dismiss, we are unable to ascertain exactly what the 

judgment actually dismisses. The information charged Respondent with two counts: (1) 

possession of an imitation controlled substance with intent to distribute and (2) 

possession of drug paraphernalia. Respondent requested the dismissal of both counts 

in his motion to dismiss; nevertheless, the motion focuses almost exclusively on the 

possession of an imitation controlled substance count. Similarly, the trial court's 

judgment and the parties' briefing discuss only the possession of an imitation controlled 

substance count.4 Thus, there is no indication in the record whether both counts were 

being dismissed or just the count charging possession of an imitation controlled 

substance.

 

4

In a footnote, the trial court does mention that Respondent has been charged with the misdemeanor 

offense of possession of drug paraphernalia. 
6

Adding further to the confusion, the State, in its jurisdictional statement, 

contends that this is an "interlocutory appeal" that "is authorized by Sections 547.210 

and § 547.200, RSMo 2000, which provides for an interlocutory appeal from any order 

which results in an information being judged insufficient." (Emphasis added). Later in 

its brief, the State correctly asserts that it "may only pursue an interlocutory appeal from 

the four categories of cases set for in § 547.200.1, or an appeal lies from final 

judgments and orders" and that the "range and types of final judgments from which the 

State may appeal is significantly broader." Thus, the State's argument is unclear as to 

whether we are to treat this appeal as interlocutory or an appeal from a final judgment.

Section 547.200.1 sets forth four circumstances under which the State has the 

authority to seek an interlocutory appeal,

5

none of which apply in this case. 

Accordingly, in order to be appealable, the judgment must be final. State v. Burns, 994 

S.W.2d 941, 942 (Mo. banc 1999). The State, however, fails to explain how the trial 

court's judgment is final for purposes of this appeal. Instead, it merely relies upon the 

fact that this Court has previously found the State had the right to appeal from 

judgments dismissing an indictment or information on grounds that the acts charged do 

not constitute a crime. See State v. Rousseau, 34 S.W.3d 254, 259 (Mo. App. W.D. 

 

5

Section 547.200.1 provides: 

An appeal may be taken by the state through the prosecuting or circuit attorney from any 

order or judgment the substantive effect of which results in:

(1) Quashing an arrest warrant;

(2) A determination by the court that the accused lacks the mental capacity or 

fitness to proceed to trial, pursuant to section 552.020, RSMo;

(3) Suppressing evidence; or

(4) Suppressing a confession or admission.
7

2000); State v. Smothers, 297 S.W.3d 626, 630-32 (Mo. App. W.D. 2009). But the 

cases upon which the State relies provide no support for the State's contention. Rather,

in both those cases, we were able to determine that the dismissals constituted final 

judgments. Rousseau, 34 S.W.3d at 259 (finding the State could bring the appeal 

under § 547.200.2 because the pre-trial dismissal of all three counts in the defendant's 

indictment would not result in double jeopardy); Smothers, 297 S.W.3d at 632 (finding 

the dismissal of a two-count information constituted a final, appealable judgment 

because it had the practical effect of terminating the litigation as charged by the State). 

In the instant appeal, we are unable to say the judgment is final.

As noted supra, it is unclear whether the trial court dismissed both counts of the 

information, or only one. Missouri courts have held that judgments resulting in the 

dismissal of all counts charged in an information or indictment are final judgments from 

which the State can appeal. See State v. Brown, 140 S.W.3d 51, 53 (Mo. banc 2004) 

(indicating a judgment was final for purpose of a criminal appeal when the trial court's 

judgment dismissed all counts in the information after finding the statutes controlling the 

charges to be unconstitutionally vague); see also State v. Drury, 358 S.W.3d 158, 161 

n.1 (Mo. App. E.D. 2011) (stating that a judgment was final and appealable in that the 

trial court dismissed all the counts, resulting in the case being dismissed entirely); State 

v. Delong, 348 S.W.3d 866, 868 n.2 (Mo. App. S.D. 2011) (explaining that the State 

had the right to appeal from the trial court's judgment because it was final in that it 

resulted in the outright dismissal with prejudice of all pending charges in the case). But 

since we do not know if both counts were dismissed, before we could address the 

merits of the appeal, we would also have to consider whether the judgment would be 
8

final if it dismissed only the count pertaining to possession of an imitation controlled 

substance.

Missouri case law lacks clarity as to whether the dismissal of some, but not all,

counts in a multi-count information or indictment constitutes a final judgment for 

purposes of a criminal appeal.6 In determining whether the State has the right to appeal 

in this case, we would necessarily have to address the issue.7 Hence, before we could 

reach the merits of this appeal, we would be forced to speculate as to what relief the 

trial court granted. Assuming we were to conclude that the judgment dismissed only 

one count of the information, we would then have to decide whether a judgment that 

dismisses only one count of a two-count information is a final judgment for purposes of 

appeal, an issue the parties have neither briefed nor argued. "As a court, we are obliged 

to remain impartial. We are not permitted to become a witting or unwitting adversary of 

[a party], fashion a theory we are not certain [a party] pleaded, search the record on our 

own for evidence to support that theory and impose liability upon [a party] without 

affording it any opportunity to challenge our strange conduct." Werdehausen v. Union 

Elec. Co., 801 S.W.2d 358, 368 (Mo. App. E.D. 1990).

 

6 Compare State v. Honeycutt, 421 S.W.3d 410, 413-14 & n.4 (Mo. banc 2013) (finding the trial court’s 

judgment granting the defendant’s motion to dismiss one count of a multi-count indictment was “a final 

judgment from which the State may appeal” because, even though the dismissal was without prejudice, it 

was based on a constitutional claim that “had the practical effect of terminating the litigation”), and State 

v. March, 130 S.W.3d 746, 747-48 (Mo. App. E.D. 2004) (holding that the dismissal of one count charged 

in a multi-count indictment constituted “a final, appealable judgment [because] it purport[ed] to preclude 

any further prosecution on that charge”), with State v. Storer, 324 S.W.3d 765, 767 (Mo. App. S.D. 2010) 

(holding that a judgment dismissing some, but not all, counts in a multi-count information did not 

constitute a final, appealable judgment for purposes of a criminal appeal because the two remaining 

charges would require “future adjudication” and “further prosecution of the defendant”), and State v. 

Stegman, 2 S.W. 798, 799 (Mo. 1887) (holding that the State’s appeal was premature where the trial 

court dismissed two counts of a three-count indictment). 

7

Although this Court has yet to address the finality issue, we have cited favorably to Burns, 994 S.W.2d 

at 942, for the proposition that a judgment in a criminal case is “final when the trial court enters an order 

of dismissal or discharge of the defendant prior to trial which has the effect of foreclosing any further 

prosecution of the defendant on a particular charge.” State v. Triplett, 355 S.W.3d 543, 548 (Mo. App. 

W.D. 2011) (internal quotation omitted) (emphasis added).
9

Thus, it follows that any decision we would make in this case would amount to 

nothing more than an advisory opinion because we do not know what was decided in 

the trial court. "[I]t is not this Court's prerogative to offer advisory opinions on 

hypothetical issues . . . ." State v. Self, 155 S.W.3d 756, 761 (Mo. banc 2005); see 

also State ex inf. Danforth v. Cason, 507 S.W.2d 405, 418 (Mo. banc 1973) ("[W]e do 

not render advisory opinions[.]"); State ex rel. Mo. Pub. Serv. Co. v. Elliott, 434 

S.W.2d 532, 536 (Mo. banc 1968) ("[T]he Court does not render advisory opinions."); 

Harris v. Consolid. Sch. Dist. No. 8 C, Dunklin Cnty., 328 S.W.2d 646, 654 (Mo. 

banc 1959) ("An advisory decree upon hypothetical facts is improper."). Accordingly,

the appeal is dismissed, and the case is remanded to the trial court for further 

proceedings not inconsistent with this opinion. State v. Reed, 770 S.W.2d 517, 521 

(Mo. App. E.D. 1989). 

________________________________

Joseph M. Ellis, Judge

All concur.