author: HAROLD L. LOWENSTEIN, Judge.

text:
    CITIBANK (SOUTH DAKOTA), N.A., Appellant, v. Jennifer S. WILSON, Respondent.
    No. WD 63861.
    Missouri Court of Appeals, Western District.
    April 26, 2005.

      Edward R. Spalty, Gerald A. King, Co-Counsel, Karrie J. Clinkinbeard, Co-Counsel, Kansas City, MO, for Appellant.
    Jackie D. Hendrix, St. Joseph, MO, for Respondent.
    Before LOWENSTEIN, P.J., SPINDEN and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Citibank (South Dakota), N.A. (“Citibank”) appeals from the trial court’s judgment in favor of Jennifer Wilson. Citibank sued Wilson for breach of contract after Wilson failed to make payments on her Citibank credit card account. After Citibank presented its case, the trial court granted Wilson’s oral motion to dismiss.

Facts

In December 1999, Wilson applied for a Citibank credit card and signed an acceptance certificate, agreeing to be bound by the terms and conditions of the credit card agreement. Citibank subsequently issued her a credit card. Wilson began using her credit card and made monthly payments to Citibank. In July 2001, Citibank mailed Wilson her credit card statement, which informed her that it was modifying the terms of the original agreement. This revised agreement was enclosed with the credit card statement. After the July 2001 statement was mailed to her, Wilson continued using her credit card and made monthly payments on her account balance. Wilson made her last payment to Citibank in March 2002 and failed to make payments thereafter. Citibank consequently filed a “Petition On Contract” against Wilson to collect the overdue balance, $12,272.84.

At trial, Citibank attempted to enforce the revised agreement that Wilson received with her July 2001 credit card statement. In presenting its case, Citibank produced the revised agreement but did not introduce the original agreement. At the close of Citibank’s evidence, Wilson orally moved to dismiss the case. The trial court sustained Wilson’s motion, reasoning that Citibank had failed to prove that Wilson had accepted the revised agreement or that the revised agreement was supported by valid consideration.

Standard of Review

“A motion to dismiss at the close of a plaintiffs evidence in a court-tried case submits the issues on the merits on which plaintiffs have the burden of persuasion, requiring the trial court to determine credibility of the witnesses and to weigh the evidence, so that the appeal from the ruling on the motion is from a final determination of the issues in question.” Morris v. Brown, 941 S.W.2d 835, 839 (Mo.App.1997). Consequently, an appellate court will affirm the judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

I.

Citibank’s first point claims that the trial court erred by not applying South Dakota law in determining whether Wilson had accepted the revised agreement. Citibank argues that South Dakota law governs its contractual relationship with Wilson and contends that, under South Dakota law, it could unilaterally change the terms of their contract and Wilson would not have to expressly assent to the changes for there to be a valid, binding agreement. Accordingly, Citibank claims that the trial court’s failure to apply South Dakota law led to the erroneous judgment.

Citibank argues that South Dakota law should have been applied because: (1) federal case law requires that the laws of a credit card company’s home state must be applied in a suit to enforce a credit card agreement; and (2) the credit card agreement contains a clause providing that South Dakota law governs the terms and enforcement of the agreement. Both arguments are misplaced.

Citibank argues that the United States Supreme Court has held that South Dakota law applies to contracts entered into by a credit card issuer, citing Marquette National Bank v. First of Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), and Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), in support of this proposition. However, Citibank misconstrues these two cases. First, Marquette dealt with whether a national bank could charge an out-of-state credit card holder an interest rate that was valid in the bank’s home state when such rate was not permitted by the laws of the cardholder’s state. 439 U.S. at 301, 99 S.Ct. 540. Smiley dealt with whether late fees were properly considered interest. 517 U.S. at 737, 116 S.Ct. 1730. Further, the National Bank Act, 12 U.S.C. § 85, which was at issue in both Marquette and Smiley, only addresses the interest rate that a bank may charge. Nowhere in the cases cited by Citibank, nor in the statute interpreted by those cases, is there any language that mentions the application of the laws of the credit card issuer’s home state in relation to the enforcement of contracts, let alone mandating the application of such laws.

Citibank also argues that South Dakota law applies because the credit card agreement contained a choice of law provision. This court agrees with Citibank that a valid choice of law provision in a contract would bind the parties. However, Citibank disregards the fact that the only choice of law provision before the trial court was contained in the revised agreement, the validity of which is in question. This court would have to resort to circular logic to reach Citibank’s conclusion that the agreement was valid. Here, Citibank argues that the agreement would be valid if South Dakota law applies. For South Dakota law to apply, the choice of law provision in the revised agreement must be given effect. But the choice of law provision is effective only if the revised agreement is valid. In essence, Citibank is asking that this court use a term from an agreement to determine its validity.

Despite Citibank’s misplaced arguments as to why South Dakota law applies, the issue is moot. Under Missouri contract law, there was sufficient evidence that Wilson had, in fact, accepted the revised agreement through her conduct, i.e., her continued use of the credit card after receiving the July 2001 credit card statement that included the terms of the revised agreement.

The basic elements of a contract are offer, acceptance of that offer, and consideration to support the contract. Luebbert v. Simmons, 98 S.W.3d 72, 77 (Mo.App.2003). Here, there is no question as to whether Citibank made a valid offer to Wilson concerning the revised agreement. The issue is whether Wilson accepted the offer and whether there was consideration to support the contract.

Acceptance of an offer need not be made by spoken or written word. Envtl. Waste Mgmt, Inc. v. Indus. Excavating & Equip., Inc., 981 S.W.2d 607, 612 (Mo.App.1998). An offer may, instead, be accepted by the offeree’s conduct or failure to act. Id. This is especially trae where “services are rendered under circumstances such that the party benefited thereby knows the terms on which they are being offered. If this party receives the benefit of the services in silence, when there was a reasonable opportunity to reject them, this party is manifesting assent to the terms proposed and thus accepts the offer.” 1 Jo-SEPH M. PERILLO, CORBIN ON CONTRACTS § 3.21, p. 415 (Rev. ed.1993).

Here, Wilson accepted the revised agreement by her conduct with regard to her credit card. Citibank presented evidence that it mailed Wilson her July 2001 credit card statement, which notified her that the revised agreement was enclosed. Furthermore, Citibank communicated to Wilson that the revised agreement was binding unless she cancelled her account within thirty days and did not use her credit card. Despite the fact that Wilson could have cancelled her account, she continued to use her credit card after July 2001, thus manifesting her acceptance of the revised agreement.

In addition, there was also sufficient evidence of consideration to support the contract. Consideration exists where there is a detriment to the promisee or a benefit to the promisor. McRentals, Inc. v. Barber, 62 S.W.3d 684, 706 (Mo.App.2001). “This consideration may consist of some right, interest, profit, or benefit accruing to one party, or some forbearance, loss, or responsibility given, suffered, or undertaken by the other party.” Carter v. St. John’s Reg’l Med. Ctr., 88 S.W.3d 1, 10 (Mo.App.2002).

Here, both parties received a benefit and incurred a detriment by entering into the agreement. Wilson benefited by being able to purchase items on credit, while incurring a legal obligation to repay the debt with interest. Likewise, Citibank received Wilson’s promise to repay with interest the credit advanced to her in exchange for the extension of credit. This is sufficient to constitute valid consideration to support the contract entered into by the parties. Because this point is dispositive, this court need not address Citibank’s final point on appeal concerning quantum meru-it.

Conclusion

Because the trial court erred in determining that there was insufficient evidence of Wilson’s acceptance of the revised agreement or valid consideration to support the contract, this court reverses the judgment dismissing the case and remands to allow Wilson to present her evidence.

All concur.

      . The acceptance certificate was signed by Jennifer Heitman, which was Wilson’s name prior to October 2000. In October 2000, she changed her name to Jennifer Wilson and all credit card statements mailed after that date reflected the change.

      . South Dakota law provides:
      Upon written notice, a credit card issuer may change the terms of any credit card agreement, if such right of amendment has been reserved, including finance charges, fees and other costs, effective as to existing balances, so long as the card holder does not, within twenty-five days of the effective date of the change, furnish written notice to the issuer that he does not agree to abide by such changes. Upon receipt of such written notice by the issuer, the card holder shall have the remainder of the time under the existing terms in which to pay all sums owed to the issuer or creditor. Use of the card after the effective date of the change of terms, including a change in interest rates, is deemed to be an acceptance of the new terms, even though the twenty-five days have not expired.
      S.D. Codified Laws § 54-11-10 (Michie 2000). Further,
      [t]he use of an accepted credit card or the issuance of a credit card agreement and the expiration of thirty days from the date of issuance without written notice from a card holder to cancel the account creates a binding contract between the card holder and the card issuer with reference to any accepted credit card, and any charges made with the authorization of the primary card holder.
      S.D. Codified Laws § 54-11-9 (Michie 2000).

      . When the trial court ruled on Wilson’s motion at trial, it specifically noted that "there [was] proof that there was an offer."


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linvill MITCHELL, Respondent, Treasurer of the State of Missouri— Custodian of the Second Injury Fund, Respondent, v. BLUE SPRINGS SCHOOL DISTRICT, Appellant, ITT Hartford Insurance Company, Appellant.
    No. WD 63828.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Thomas R. Hill, Kansas City, MO, for Appellants Blue Springs School District and ITT Hartford Insurance Company.
    Frank D. Eppright, Kansas City, MO, for Respondent Linvill Mitchell.
    Clayton T. Fielder, Jefferson City, MO, for Respondent Treasurer of the State of Missouri-Custodian 2nd Injury Fund.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   ORDER

PER CURIAM.

The Blue Springs School District and ITT Hartford Insurance Company appeal from the Labor and Industrial Relations Commission’s final award of workers’ compensation benefits, attorney’s fees, and costs to Linvill Mitchell. Upon review, we have determined the Commission’s decision is supported by competent and substantial evidence in the record. Accordingly, we affirm the final award.

The parties have been provided with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Curtis E. STRONG, Appellant.
    No. WD 63665.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Rosalynn Koch, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.

      Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   ORDER

PER CURIAM.

Curtis Strong appeals his jury conviction for first-degree statutory rape, Section 566.032, RSMo.2000. Upon review of the briefs and the record, we find no error and affirm the conviction. No precedential purpose would be served by a published opinion, but we have provided the parties with a Memorandum explaining the reasons for our decision. Rule 30.25(b).


author: JAMES M. SMART, JR., Judge.

text:
    In the Interest of E.C.H.J. & D.C.L.J., Plaintiffs; L.V.J., (Father), Appellant, v. Juvenile Officer, Respondent; C.R.Y. (Mother), Defendant.
    Nos. WD 64575, WD 64576.
    Missouri Court of Appeals, Western District.
    April 26, 2005.

      Jill Renee Creed, Macon, MO, for plaintiff and Guardian for Minors.
    Joshua Fay, Macon, MO, for appellant.
    Mike Greenwell, Shelbina, MO, for respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   JAMES M. SMART, JR., Judge.

L.V.J. (“Father”) appeals from a judgment terminating his parental rights to his two minor children. The termination was based on Father’s convictions in Iowa for sexual abuse and incest. Father challenges the statutory grounds for termination and the best interest rulings as against the weight of the evidence. We affirm.

Father and Mother were married. Two children were born of the marriage: D.C.L., a male who was eleven years old at the time of trial, and E.H.J., a female who was eight years old. These children are the subjects of the termination action at issue. Father also had another child from a previous relationship, A. J., who was nineteen years old at the time of trial.

In November 2001, while the family was living in Iowa, Mother witnessed Father engaging in sexual conduct with his daughter A.J. At that time, A.J. was sixteen years old and was living with Father and Mother. An information was subsequently filed, charging Father with five counts of third-degree sexual abuse and five counts of incest. After a guilty plea, Father was convicted in Iowa of one count of sexual abuse and one count of incest. See Iowa Code §§ 709.4 and 726.2. Father was sentenced to a ten-year prison term in Iowa.

Meanwhile, sometime after the arrest, Father and Mother divorced. A judgment granted Mother legal and physical custody of the children. Father was granted no visitation and ordered to pay child support. Mother moved to Missouri with the children. Father remains in prison in Iowa.

On July 1, 2003, the Juvenile Officer of Macon County, Missouri, filed a Petition for Termination of Father’s parental rights with his two minor children, E.C.H. and D.C.L. Mother and the juvenile officer testified in behalf of termination. Father presented only his own testimony. The trial court ordered the termination of Father’s parental rights as to the minor children.

The trial court relied on three statutory grounds. First, the court relied on section 211.447.2(3)(d), finding that Father was convicted of a felony assault that resulted in serious bodily injury to one of his children. Second, the court relied on section 211.447.4(2), finding that Father committed severe and recurrent acts of sexual abuse toward another child in the family. Finally, the court relied on section 211.447.4(4), finding that Father was convicted of a sexual offenses prohibited by Chapter 566 in which one of his children was the victim, and a section 568.020 offense (incest) in which one of his children was the victim.

Father challenges each ground as against the weight of the evidence.

The court may not terminate parental rights unless it first finds that one of the statutory grounds has been proven by clear, cogent, and convincing evidence. In the Interest of E.D.M., 126 S.W.3d 488, 491 (Mo.App.2004). Clear, cogent and convincing evidence is evidence that instantly tilts the scales in favor of termination and leaves the finder of fact with the abiding conviction that the evidence is true. Id. (quoting In the Interest of C.C., 32 S.W.3d 824, 826 (Mo.App.2000)). Here, the trial court was presented with such evidence.

Section 211.447.4(4) provides that termination is appropriate where the parent has been found guilty of or pleaded guilty to (1) a Missouri Chapter 566 felony violation (sexual abuse) where one of his children was the victim or (2) a violation of Missouri section 568.020 (incest) where one of his children was the victim.

Here, the Juvenile Officer presented the certified copies of Father’s Iowa convictions for third-degree sexual abuse and incest. Iowa Code §§ 709.4 and 726.2. Father concedes that he was found guilty of the Iowa crimes. However, he points out that he was not found guilty of any Missouri crimes. Therefore, he says, the court’s finding that the grounds in section 211.447.4(4) were proven is against the weight of the evidence.

Father chooses to construe the language as requiring a conviction in Missouri of a Missouri statute. Of course, in light of the obvious legislative purpose, it only makes sense to construe the language as requiring a conviction, whether in Missouri or elsewhere, of conduct that in Missouri would be violative of Chapter 566 or section 568.020 if it took place in Missouri. Where one view of the language does not comport with the obvious legislative purpose in the light of common sense, we will interpret such language so as to reflect the actual purpose of the legislature. See Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 591-93 (Mo.App.1999) (refusing to apply literal interpretation of statute where it would lead to an absurd result that the legislature could not have intended).

It would make little sense to restrict the grounds in section 211.447.4(4) to crimes committed in Missouri. A parent’s sexual violation of one of his own children raises a grave challenge to the issue of whether that parent should retain parental rights; and it makes no difference whether the acts were committed in Missouri or another state. It is absurd to think that the legislature would be concerned only about offenses perpetrated in Missouri and would be willing to expose children to the same risks posed by the tendencies reflected by the same heinous conduct committed elsewhere. While ordinarily we construe statutes affecting parental rights narrowly, such a narrow construction cannot apply in a case such as this, where the narrow construction would be absurd.

That the State of Missouri is concerned about the nature of the offense, and not the location of the offense, is further evident from the General Assembly’s later enactment (in 2004) of section 211.038. In that statute, the legislature, concerned about avoiding reunification of children with parents who have offended sexually against children, provided indirectly some clarification of intent as to section 211.447.4(4). In section 211.038, the legislature provided that no child may be “reunited with a parent ... [who] has been found guilty of, or plead guilty to, a felony violation of Chapter 566 ... or ... 568.020 ... or an offense committed in another state when a child was the victim ... that would be ... a violation of ... 568.020 ... if committed in Missouri.” This language confirms the legislative intent to base such decisions on the criminal conduct against a child or children, not the location of the criminal conduct. It would make no sense to provide that conviction of incest in Iowa would absolutely preclude reunification of parent and child in an abuse case in Missouri, but would not be grounds to terminate the parental rights of such a parent. For example, in a case in which there were no other grounds (besides conviction of the specified statutory provisions) on which to terminate parental rights, the interpretation suggested by the appellant could absurdly doom such an abused child to a life of foster care, without hope of either adoption or reunification. The legislature could have intended no such lack of logical symmetry between the two statutes. The obvious legislative purpose was to hold parents accountable to the conduct limitations of the Missouri statutes in question without regard to where the conduct occurred.

For all the foregoing reasons, therefore, we conclude the trial court did not err in determining that the legislature intended the statutory ground to apply also to conviction of an offense that is identical to a sexual offense prohibited by Chapter 566 and any conviction of an incest statute having elements identical to section 568.020.

The Iowa conviction for incest satisfies the criteria of the statute. Incest is a universally understood crime with an apparently universal definition. The statutory definitions at issue here contain the same elements. Section 568.020 provides: “A person commits the crime of incest if he marries or purports to marry or engages in sexual intercourse with a person he knows to be, without regard to legitimacy: (1) his ancestor or descendant by blood or adoption....” Iowa Code section 726.2 provides as follows:

A person, except a child as defined in section 702.5, who performs a sex act with another whom the person knows to be related to the person, either legitimately or illegitimately, as an ancestor, descendant, brother or sister of the whole or half blood, aunt, uncle, niece, or nephew, commits incest. Incest is a class “D” felony.

Both provide that a person commits incest if he engages in sexual activity with another whom he knows to be his descendant. § 568.020, RSMo 2000; Iowa Code § 726.2.

The court admitted the certified copy of the incest conviction. This document establishes by clear, cogent, and convincing evidence that Father was found guilty of that offense. Father acknowledges that the allegations of incest involved his daughter. We cannot say that the grounds for termination were not proven simply because the act was not committed in Missouri and the court was not in Missouri.

There was also evidence presented, through Mother’s testimony, that Father committed severe and recurrent acts of sexual abuse toward Father’s own daughter. Thus, there was evidence supporting grounds of termination both for incest and for severe and recurrent acts of sexual abuse.

Father argues that his conflicting testimony shows that the evidence supporting termination is not clear, cogent, and convincing. Father testified that the allegations of sexual abuse were not true. He said that his daughter “climbed in bed [on top of him] and tried to have sex with [him].” Father said that he was “irate” and refused.

We defer to the trial court’s ability to evaluate witness credibility and to choose between conflicting evidence. In the Interest of AH., 9 S.W.3d 56, 59 (Mo.App.2000). The certified copy of the conviction is powerful evidence. The testimony of Mother was consistent with the conviction. These facts instantly tilt the scales in favor of termination and leave the finder of fact with the abiding conviction that Father committed acts constituting grounds for termination. This is true despite Father’s conflicting testimony. See In the Interest of J.W., 11 S.W.3d 699, 703 (Mo.App.1999) (noting that evidence may still be clear, cogent, and convincing despite conflicting evidence).

Father states that his guilty pleas to the Iowa charges were “Alford” pleas. “Alford” pleas involve a plea of guilty without an admission of actual guilt. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Thus, according to Father, the convictions are not clear, cogent, and convincing evidence that he actually committed the crimes.

We have been provided no evidence that Father’s pleas were “Alford” pleas beyond Father’s bare assertion. The only evidence is Father’s own testimony that he thought he had entered such a plea. We gather from the testimony at trial that the certified copies of the convictions do not show in any way that the plea was an Alford plea, and Father failed to provide this court with these exhibits. Father also failed to provide a transcript of the guilty plea hearing to substantiate his claim.

Father also offers no reason and no authority for the proposition that the statute should be construed such that it does not apply to “Alford” pleas.

We cannot say that the court’s decision to terminate Father’s parental rights pursuant to section 211.447.4(4) was against the weight of the evidence. Because one of the statutory grounds is sufficient for termination, we need not address Father’s challenge to the court’s other grounds. See In the Interest of J.K., 38 S.W.3d 495, 499 (Mo.App.2001).

Once the court finds that statutory grounds for termination have been proven, the court must then find that the best interests of the child would be served by termination. § 211.447.5; see also In the Interest of K.C.M., 85 S.W.3d 682, 690 (Mo.App.2002). The court’s analysis must take into account any applicable “best interest” factors listed in section 211.447.6:

(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so
(4) "Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent’s disinterest in or lack of commitment to the child;
(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years ...;
(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

Here, the trial court found each factor in favor of termination. Unlike proof of a statutory ground for termination, a best interests determination requires only proof by a preponderance of the evidence. In the Interest of K.C.M., 85 S.W.3d at 690.

Our review of these findings is for an abuse of discretion. Id. at 689. We will find an abuse of discretion only when the ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. In the Interest of KJ.K, 108 S.W.3d 62, 68 (Mo.App.2003).

There was ample evidence from which the trial court could have concluded that termination of Father’s parental rights is in the best interests of the minor children. The juvenile officer testified that the children had few (if any) emotional ties to their father. Mother similarly testified that the children did not want to see their father. The record shows that during the six-month period between the arrest and the filing of this action, Father’s only communication with the children was one or two letters. The length of time a child is out of a parent’s custody and the limited contact during that time is an appropriate consideration when evaluating the children’s emotional ties with their parent. In the Interest of B.A., 931 S.W.2d 926, 930 (Mo.App.1996).

This evidence also supports the court’s findings that Father has not maintained regular visitation or contact with the children and that he is not committed to them. Father points out that while serving his sentence, he sent three or four letters to his children. The trial court evidently attached little or no weight to these communications because they occurred after the juvenile officer filed her petition. The court was within its discretion to regard these efforts as token. In the Interest of M.L.K., 804 S.W.2d 398, 403 (Mo.App.1991).

The juvenile officer testified that she knew of no additional services that could bring about a lasting parental adjustment. Here, there was reason to conclude that Father’s sexual involvement with his daughter exceeded a one-time occurrence. Father pleaded guilty to only one count of sexual abuse and one count of incest out of a ten-count information, but Mother testified that several incidents of such abuse happened over a period of time.

The record shows that Father has eight years remaining on his sentence. There is no prospect of reunification. See § 211.038 RSMo Cum.Supp.2004.

Regarding the extent to which Father has provided for the care and maintenance of the children, Father points out that he submitted as evidence prison documents indicating that a portion of his prison income had been deducted for child support. Mother and the juvenile officer, on the other hand, testified that Father provided no support during the six-month period between the date of Father’s arrest and the date the petition for termination was filed. Even if this factor were resolved in favor of Father, the trial court still had ample evidence to conclude that terminating Father’s parental rights was in the best interests of the minor children.

In light of the evidence, we cannot say that the trial court’s “best interest” ruling is so clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice.

The judgment is affirmed.

ULRICH and ELLIS, JJ., concur.

      . Unless otherwise noted, all statutory references are to Revised Statutes of Missouri 2000.


text:
    Bryon GRIFFIN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64458.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Ruth Sanders, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Shawn Naccarato, Office of Attorney General, Jefferson City, for Respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Bryon Griffin appeals the circuit court’s judgment denying his motion to vacate judgment and sentence without an eviden-tiary hearing pursuant to Rule 24.035. We affirm. Rule 84.16(b).


text:
    Yvette O’DELL, Respondent, v. Clinton O’DELL, Appellant.
    No. WD 64280.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Larry Vaughn Swall II, Liberty, for Appellant.
    Yvette O’Dell, Warrensburg, pro se.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Clinton O’Dell appeals the circuit court’s decision to deny his motion to vacate or to reopen the case on his motion to modify a dissolution decree. We affirm. Rule 84.16(b).


text:
    William E. ALLEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64189.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Jeannie Marie Willibey, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Alison K. Brown, Office of Attorney General, Jefferson City, for Respondent.
    Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

William E. Allen appeals the denial without evidentiary hearing of his Rule 29.15 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prece-dential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


author: THOMAS H. NEWTON, Presiding Judge.

text:
    STATE of Missouri ex rel. Michael D. SANDERS, Relator, v. The Honorable C. William KRAMER, Respondent.
    No. WD 64732.
    Missouri Court of Appeals, Western District.
    April 26, 2005.

      James F. Kanatzar, Kansas City, MO, for relator.
    Andrea Welch, Independence, MO, for respondent.
    Before THOMAS H. NEWTON, P.J., PATRICIA A. BRECKENRIDGE and RONALD R. HOLLIGER, JJ.
   THOMAS H. NEWTON, Presiding Judge.

The State of Missouri ex rel. Michael D. Sanders (Relator) filed a Petition for Writ of Mandamus challenging the Honorable C. William Kramer’s (Respondent) order of probation for Mr. Jeffrey Arzola. The Relator claims that the Respondent had no jurisdiction to order probation in this case. We granted a Preliminary Writ of Mandamus and ordered the parties to brief the issue raised by the state in its Writ Petition, i.e., that the plea court lacked jurisdiction to place Mr. Arzola on probation because its judgment and sentence were final.

At the age of fourteen, Mr. Arzola fired a rifle into a group of people and killed an eighteen-year-old man. Certified as an adult, Mr. Arzola was charged with Murder in the First Degree, § 565.020, and Armed Criminal Action, § 571.015. Under the terms of a plea agreement reached with the Relator, Mr. Arzola pled guilty to murder in the second degree, § 565.021, and armed criminal action. The Relator had agreed to reduce the charges in exchange for a sentence of no less than twenty years to life imprisonment on the murder charge, and three years on the armed criminal action charge.

The plea court sentenced Mr. Arzola to twenty-five years on the second degree murder charge and three years on the armed criminal action charge, with the sentences to run concurrently. Following in-chambers discussions with the Relator, the Division of Youth Services (DYS) and defense counsel that occurred after the plea hearing, the plea court invoked section 211.073 during the sentencing hearing and suspended execution of the adult sentence. Mr. Arzola was committed to DYS custody subject to several conditions, one of which required Mr. Arzola to be held in secure confinement until his seventeenth birthday “at which time his custody is to be transferred to the custody of the Missouri Division of Adult Institutions, unless earlier ordered transferred by Order of this Court.”

DYS requested a hearing before Mr. Arzola’s seventeenth birthday as required under section 211.073.4, and the plea court thereafter ordered that he be continued in DYS custody “until his twenty-first (21st) birthday unless his transfer to the Department of Corrections is earlier ordered in conformity with the provisions of Section 211.073 R.S.Mo.” The Relator did not object to the hearing or to the plea court’s order. Before Mr. Arzola turned twenty-one, DYS filed a petition for Mr. Arzola’s release from its jurisdiction, and the Relator filed a motion seeking revocation of Mr. Arzola’s suspended execution of sentence.

Witnesses testified during the hearing on DYS’ petition that Mr. Arzola had turned his life around while in DYS custody, fulfilling all program requirements, understanding the impact of his crime, showing remorse, serving as a role model and effective peer counselor, earning his GED, and pursuing vocational instruction. Members of the victim’s family also testified during the hearing. Finding that Mr. Arzola “has shown significant progress in rehabilitating himself’ and that “society generally would not benefit by the transfer of [Mr. Arzola’s] custody to the Department of Corrections to serve the remainder of his sentence at this time,” the plea court continued its order suspending execution of Mr. Arzola’s adult sentence and placed him on probation for five years, subject to several conditions. The plea court concluded “under the circumstances before it, if the provisions of Section 211.073 are to have the meaning intended by the legislature in its enactment, the time of confinement of the defendant should serve to adequately meet the punishment requirement when measured against the success he has shown in rehabilitating his life.”

Mandamus is an extraordinary remedy and cannot compel a discretionary act. State ex rel. Burns v. Gillis, 102 S.W.3d 66, 68 (Mo.App. W.D.2003). We issue the writ to prevent the exercise of powers exceeding judicial jurisdiction or to correct an abuse of judicial discretion. State v. Saffaf, 81 S.W.3d 526, 528 (Mo. banc 2002). The writ is used both to compel a court to do what is required by law and to undo what is prohibited by law. State ex rel. Leigh v. Dierker, 974 S.W.2d 505, 506 (Mo. banc 1998).

Section 211.073 gives a court the authority to “invoke dual jurisdiction of both the criminal and juvenile codes,” § 211.073.1, in cases involving an offender under seventeen who is transferred to a circuit court of general jurisdiction and whose prosecution results in a conviction. Under section 211.073, the circuit court may impose a juvenile disposition and “simultaneously impose an adult criminal sentence, the execution of which shall be suspended pursuant to the provisions of this section.” Id. The plea court in our case did just that with a fourteen-year-old offender who had entered a guilty plea and faced the possibility of incarceration in an adult corrections facility.

The Relator claims that once the plea court entered judgment and sentenced Mr. Arzola, it exhausted its jurisdiction and could take no further action. Case law, however, provides that a court can take further action after judgment and sentencing “when otherwise expressly authorized by statute or rule.” State ex rel. Williams v. Wilson, 63 S.W.3d 650, 652 (Mo. banc 2002); State ex rel. Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993). An analysis of section 211.073 shows that further court action is specifically contemplated by its provisions. Subsection 2 requires the court to take action “[i]f there is probable cause to believe that the offender has violated a condition of the suspended sentence or committed a new offense.” § 211.073.2. Subsection 3 requires the court to hold a hearing, if requested, “[w]hen an offender has received a suspended sentence pursuant to this section and the division determines the child is beyond the scope of its treatment programs.” § 211.073.3. Subsection 4 requires the court to conduct a hearing “[w]hen an offender who has received a suspended sentence reaches the age of seventeen.” And subsection 5 directs DYS to petition the court for a hearing before releasing an offender “at any time before the offender reaches the age of twenty-one years.” The actions that a court is authorized to take under 211.073 include (i) revoking the suspension of sentence and directing that the offender be taken immediately into department of corrections’ custody, and (ii) directing that the offender be placed on probation. Accordingly, we find that section 211.073 expressly authorizes court action after judgment and sentencing and, thus, that the plea court did not lack jurisdiction to take further action regarding Mr. Arzola’s sentence. We find further support for our conclusion in State v. Bachman, 675 S.W.2d 41, 46 (Mo.App. W.D.1984), where this court determined that trial courts have continuing jurisdiction in cases involving a suspension of execution of sentence. We therefore quash the preliminary writ of mandamus.

PATRICIA A. BRECKENRIDGE and RONALD R. HOLLIGER, JJ., concur.

      . Unless otherwise indicated, all statutory references are to RSMo. (2000) and the Cumulative Supplement (2004).

      . At the time, the statute was relatively new, and the plea court indicated on the record that it was unsure at what point Mr. Arzola would be required to calculate the 90-day limitation on filing a challenge to the legality of his sentence under Rule 24.035 of the Missouri Rules of Criminal Procedure. Section 211.073 authorizes a court to transfer custody of a juvenile offender under the age of seventeen who has been certified and convicted as an adult to the division of youth services for treatment, while execution of the offender’s adult criminal sentence is suspended. § 211.073.1.

      . We have been unable to locate any cases interpreting this section of the juvenile code or explaining how "dual jurisdiction” works in a plea or sentencing context.

      . Specifically, section 211.073.4 provides: When an offender who has received a suspended sentence reaches the age of seventeen, the court shall hold a hearing. The court shall: (1) Revoke the suspension and direct that the offender be taken into immediate custody of the department of corrections; (2) Direct that the offender be placed on probation; or (3) Direct that the offender remain in the custody of the division of youth services if the division agrees to such placement.

      . Specifically, section 211.073.5 provides:
      The division of youth services shall petition the court for a hearing before it releases an offender who comes within subsection 1 of this section at any time before the offender reaches the age of twenty-one years. The court shall: (1) Revoke the suspension and direct that the offender be taken into immediate custody of the department of corrections; or (2) Direct that the offender be placed on probation.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Richard D. LAWRENCE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 25990.
    Missouri Court of Appeals, Southern District, Division One.
    April 26, 2005.

      Ellen H. Flottman, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Richard D. Lawrence (“Movant”) was found guilty by a jury of driving while intoxicated, a violation of Section 577.010, and driving while his license was revoked, a violation of Section 302.321. The court sentenced Movant as a prior and persistent offender to concurrent terms of ten years in the custody of the Missouri Department of Corrections and one year in the custody of the Laclede County jail, respectively. We affirmed his conviction and sentence on direct appeal. State v. Lawrence, 64 S.W.3d 346, 355 (Mo.App. S.D.2002).

On February 7, 2002, Movant filed a pro se motion to vacate, set aside or correct his conviction and sentence, pursuant to Rule 29.15. An amended version of that motion was filed on October 25, 2002. Following an evidentiary hearing, the motion court denied Movant’s motion. This appeal followed. We affirm the motion court’s ruling.

On September 25, 1998, Deputy Greg Weddle (“Deputy Weddle”) of the Laclede County Sheriffs Department was directing traffic at the intersection of Highway 5 and Route C because of a nearby fire, when he observed a black Pontiac Firebird traveling north on Highway 5 at a high rate of speed. The car swerved out of its lane several times and nearly hit Deputy Weddle and his patrol car as it drove past. Since the car had crossed the center line, Deputy Weddle believed the driver might be intoxicated so he called dispatch to have the highway patrol look for the vehicle. Deputy Weddle’s call to dispatch included a description of the driver as a white male with long, shoulder-length hair wearing a black T-shirt and sunglasses, as well as the fact that the car had a cracked and shattered front windshield that was still intact.

Shortly after the incident involving Deputy Weddle, David Hudson (“Hudson”) was traveling south on Highway 5, about a mile and a half north of the intersection where Deputy Weddle was directing traffic, when he noticed a late model black car, either a “Trans Am, Z 28[or] Firebird,” cross the center line coming towards him. The black car forced another car off of the road and also forced Hudson to pull into a driveway to avoid a collision. Hudson observed that the driver had long hair and was not wearing a shirt. He also noted the vehicle had a “busted out” or shattered windshield on the driver’s side. When the black car pulled into a nearby driveway, Hudson looked through the scope of an unloaded rifle and observed the driver, whom he later identified as Movant, get out of his car and walk north into a wooded area. Hudson then continued south on Highway 5 until he reached the intersection where Deputy Weddle was positioned. He told Deputy Weddle what had happened and continued on to his farm. .

Several minutes later, when Hudson drove back north on Highway 5, he observed Movant, about two miles north of the intersection of Highway 5 and Route C, standing at the corner of Highway 5 and Route HH. Hudson turned around and went back to Deputy Weddle’s location at Highway 5 and Route C, where he was told that Movant had been apprehended and was being brought to that location by a highway patrolman.

Trooper Jason Riggs (“Trooper Riggs”) of the Missouri Highway Patrol overheard radio traffic concerning the incident with Deputy Weddle. After receiving a description of the driver, Trooper Riggs located Movant standing at the corner of Highway 5 and Route HH, in the area where Hudson last observed him. Trooper Riggs stopped and as Movant was walking to the patrol car, Trooper Riggs noticed that he was unsteady on his feet and staggering, his eyes were blood shot and watery, and his speech was slurred as he talked. Movant was also carrying a set of keys which he handed to Trooper Riggs upon being requested to do so. Movant agreed to perform some field sobriety tests. According to Trooper Riggs, Mov-ant failed a horizontal gaze nystagmus test. Movant then refused to undergo any other sobriety tests, and when asked if he’d been drinking, Movant replied, “a lot.” Movant was placed under arrest for driving while intoxicated and given his Miranda warnings.

Trooper Riggs was informed that a witness was with Deputy Weddle. When he took Movant to that location, Hudson identified Movant as the driver of the black car. While Trooper Riggs was talking with Deputy Weddle and Hudson, they noticed that Movant had fallen out of the patrol car. When asked what he was doing, Movant said, “I am drunk” and asked Trooper Riggs to help him off the ground.

The following day, Trooper Riggs went to the location where the black car Hudson saw Movant get out of had been towed. He found that the keys Movant handed to him started that car.

At trial, Movant’s driving record was introduced, showing that his driving privileges were under revocation at the time of the incident in question and, as indicated earlier, he was found guilty of felony driving while intoxicated and driving while his license was revoked.

Movant now appeals the motion court’s denial, following an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Movant raises two points on appeal. First, he contends the motion court clearly erred in denying his Rule 29.15 motion because Movant’s trial counsel was ineffective for failing to request a change of venue in that he was prejudiced because his niece by marriage, who knew of his prior alcohol-related convictions, became a juror in his case. Second, he contends his trial counsel was ineffective for not allowing Movant to testify in that he wanted to tell the jury that he did not have the car keys in his hand, despite contrary evidence, which went to the element of whether Movant was actually driving the car.

Our review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Knese v. State, 85 S.W.3d 628, 631 (Mo. banc 2002); Bewley v. State, 151 S.W.3d 151, 153 (Mo.App. S.D.2004). The findings and conclusions of the motion coui't are clearly erroneous only if, after a thorough review of the record, we are left with the definite and firm impression that a mistake has been made. Shockley v. State, 147 S.W.3d 189, 191 (Mo.App. S.D.2004).

Trial counsel’s performance is presumed to be effective and therefore, Movant bears the burden in overcoming this presumption by a preponderance of the evidence. Rule 29.15(i); Nicklasson v. State, 105 S.W.3d 482,484 (Mo. banc 2003); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). In order for Movant to prevail on his ineffective assistance of counsel claim, he must first demonstrate that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances. Crooks v. State, 131 S.W.3d 407, 409 (Mo.App. S.D.2004). Second, he must demonstrate that not only was his trial counsel ineffective, but that he was prejudiced by trial counsel’s poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). “Prejudice is shown where ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Crooks, 131 S.W.3d at 409 (citing Strickland at 694, 104 S.Ct. 2052). If Movant fails to satisfy either prong, relief will be denied. State v. Simmons, 955 S.W.2d 752, 772 (Mo. banc 1997); Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003).

Movant cannot base a claim of ineffective assistance on reasonable choices of trial strategy. Knese, 85 S.W.3d at 631. Therefore, in attempting to satisfy the first prong of the test, Movant must overcome the presumption that the challenged action was a decision appropriately made in the exercise of professional judgment. Jameson v. State, 125 S.W.3d 885, 890 (Mo.App. E.D.2004). “Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable.” Tokar, 918 S.W.2d at 761, (citing Strickland, 466 U.S. at 690-691, 104 S.Ct. 2052). In reviewing trial strategy, we evaluate the conduct of counsel from his perspective at the time of the conduct. State v. Light, 835 S.W.2d 933, 940 (Mo.App. E.D.1992).

Movant maintains his trial counsel was ineffective by not requesting a change of venue, even though Movant requested that he do so. He contends that he was prejudiced by this failure because his niece, by marriage, became a juror and that she knew of his prior alcohol related convictions. He also explained, at the evi-dentiary hearing, that he wanted his counsel to request a change of venue because Movant was “well[-]known around [the county] because of the alcohol,” but that his trial counsel refused unless Movant paid more money.

During voir dire, the State asked prospective jurors if anyone knew Movant. None of the jurors, including a juror later identified by Movant as his niece by marriage, responded affirmatively to the State’s question. The same was true when they were asked if anyone knew anything about this case. However, on the second day of trial, Movant advised his trial counsel that he recognized one of the jurors as being his niece by marriage. Counsel then informed the trial court that one of the jurors might be related to Movant. Mandy Gormley (“Mrs.Gormley”) was summoned to the bench, out of the presence of the other jurors, to discuss the possibility that she may be related to Movant. The following colloquy occurred between the court and Mrs. Gormley:

Q: .... Do you know or know of Mr. Lawrence?
A: No.
Q: You don’t know that you have ever seen or known of him?
A: No. I will say that after you read that address today, that he is in Richland, now my husband’s mom at one time, I don’t know her, we never talked to her, that her, I don’t know her maiden name. One time her last name was Lawrence and kind of hit me then that there may have been, but I have know [sic] clue as to if there’s any relationship there. But it just kind of hit me, but I don’t know any of his family from his mom’s side or his mom. Other than that, no.
Q: Talking about your husband?
A: Yes.
Q: What’s his name?
A: Johnny Gormley.
Q: So you don’t know any of his relatives or any of his mom’s?
A: Not on the mom’s side, no.
Q: And you said that you recalled that her name was once Lawrence?
A: At one time, he didn’t know that much about his mom either and he thought at one time that could have been her last name. He didn’t grow up around her at all.

Movant’s claim of prejudice is refuted by the record. Not only did Mrs. Gormley not recognize him, but she was unfamiliar with her husband’s mother’s side of the family. Movant fails to demonstrate how he was prejudiced by this juror.

Movant’s counsel testified at the eviden-tiary hearing that he discussed the possibility of a change of venue with Movant. They evaluated whether Movant would be able to obtain a fair trial in Laclede County or if too many people knew him. Mov-ant was also advised of the inconvenience of having the trial in another county. His counsel stated that he did not believe that a change of venue was necessary because the circumstances of the case were not publicly known and he believed that Mov-ant would obtain a fair trial. According to his counsel, Movant deferred to his opinion about a change of venue.

The motion court concluded that Movant failed to establish prejudice regarding the venue issue. It has not been shown to be clearly erroneous in that regard. Point I is denied.

In Movant’s second point, he contends his trial counsel was ineffective for refusing to let Movant testify, as he would have stated that the car keys were not in his hand and this would have gone to the element of whether Movant was driving the ear. Absent any exceptional circumstances, the advice by counsel on whether or not to testify is a matter of trial strategy and not grounds for post-conviction relief. Lott v. State, 147 S.W.3d 842, 845 (Mo.App. S.D.2004); Morrison v. State, 75 S.W.3d 893, 897 (Mo.App. S.D.2002).

During the evidentiary hearing, Movant explained that he wanted to testify, but his trial counsel threatened to withdraw if Movant insisted on doing so. His trial counsel, however, testified that he did not want Movant’s eleven prior DWI convictions to become known to the jury because he believed such knowledge would be damaging to his defense. “[Movantj’s spent a good portion of his life in jail or prison, and I was very concerned that the jury would prejudge him or judge him for that case based upon his priors, which is a fairly typical concern for anyone who has prior convictions, but [Movant] had quite a few.” Movant’s trial counsel also testified that he discussed with Movant, on several occasions, his right to testify and why counsel believed he should not take the stand. According to counsel, Movant agreed with that advice. Later during the trial, counsel confirmed with Movant that he did not intend to testify.

Movant also failed to prove that had he testified, a different outcome would have resulted. If Movant had testified, the jury could have learned of his prior eleven DWI convictions. Even if Movant had testified that he was not holding the car keys, there was an overwhelming amount of evidence implicating Movant. Hudson identified Movant as the driver of the black vehicle that nearly ran him and another driver off of the highway after crossing the center line. The vehicle and driver matched the description given by Deputy Weddle, which Trooper Riggs used to identify and apprehend Movant. Mov-ant, therefore, has not demonstrated prejudice from counsel’s alleged ineffectiveness.

The motion court found “that given [M]ovant’s record of convictions, it was reasonable trial strategy not having [M]ov-ant testify at trial. Movant has failed to meet the burden of proof as to this point.” We cannot conclude that these findings were clearly erroneous. Point II is denied.

The judgment of the motion court is affirmed.

PREWITT and RAHMEYER, JJ., concur.

      . References to statutes are to RSMo (2000) unless otherwise indicated.

      . References to rules are to Missouri Rules of Criminal Procedure (2004).

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: JAMES K. PREWITT, Judge.

text:
    Nick ROUSSELL and Linda Roussell, Plaintiffs-Appellants, v. The CITY OF OZARK, Missouri; Donna McQuay, Mayor; and Mike Benna, Mark Spinabella, Tom Uzzell, Brad Eldridge, Rick Gardner, and Kate Smith, City of Ozark Aldermen/women, Defendants-Respondents.
    No. 26427.
    Missouri Court of Appeals, Southern District, Division One.
    April 27, 2005.

      ' David C. Replogle, McDonald, Hosmer, King & Royce, P.C., of Springfield, MO, for appellants.
    David V. Collignon, City Attorney, City of Ozark, MO, for respondents.
   JAMES K. PREWITT, Judge.

The Christian County Circuit Court entered judgment against Nick Roussell and Linda Roussell (“Appellants”) for failing to establish that Respondents, City of Ozark (“City”), the Mayor of Ozark, and the Ozark Board of Aldermen, did not use competent and substantial evidence upon the whole record in their determination of this matter.

This court reviews the findings and conclusions of the Board of Aldermen and not the judgment of the trial court. State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24 S.W.Sd 681, 684 (Mo. banc 2000). Evidence is viewed in the light most favorable to the Board’s decision. N.P. Sandbothe v. City of Olivette, 647 S.W.2d 198, 203 (Mo.App.1983).

Appellants own a 3.5 acre tract located at 5020 North 17th Street, in Ozark, Missouri. A portion of this property is located in a floodplain zone and subject to flood plain management pursuant to § 89.020, RSMo 2000. That portion is designated by the City of Ozark as “A Zone.” Any construction in an A Zone floodplain is not permitted except through the issuance of a floodplain development permit.

Appellants’ plans for development of their property included, as its principal use, a building, sometimes described as a warehouse, which they intended to lease, and a parking lot, designated as an accessory use. In conjunction with this development, Appellants had requested and were granted a Solid Waste Permit by the Missouri Department of Natural Resources (“DNR”) on February 22, 2002. This permit granted approval for the Appellants to operate a solid-waste-processing facility on their property. According to the “Processing Facility Description” of the permit, the type of waste acceptable for this location included “medical waste and Animal and Plant Health Inspection Service waste.” The permittees designated on the permit included Mr. Roussell, as the owner, and Stericycle, Inc. (“Stericy-cle”), as the operator.

To comply with the City’s code, Appellants intended to build the warehouse at an elevation of 1279 feet, which is five feet above the 100-year-flood minimum and four feet above the minimum elevation for A Zone construction. The property is surrounded by single-family housing. According to the City’s code, “[t]he storage or processing of materials, within the special flood hazard area, that are in time of flooding buoyant, flammable, explosive, or could be injurious to human, animal, or plant life is prohibited.”

On April 16, 2002, the City’s Planning and Zoning Commission reviewed Appellants’ site plan that included the floodplain permit application. The City’s floodplain manager, Alfonso Gonzales, recommended no permit be issued, citing a need for more review. The Commission made no final decision at that meeting.

Appellants submitted a floodplain permit application, dated May 16, 2002, which the Planning and Zoning Commission ruled incomplete. This was the same conclusion reached by the City’s Board of Aldermen. After both parties’ engineers met, Appellants resubmitted a floodplain permit application, dated June 6, 2002, signed by Linda Roussell. This permit was the subject at the September 16, 2002 Board of Aldermen meeting where members raised issue with proposed plans for the property. Mi’. Roussell stated there that he would rent the warehouse to “whomever the market yielded” and thus future plans would be impossible to predict. The Board of Aldermen requested that Appellants specify “activity that would concern neighbors in the path of development” while remaining “broad enough to market the warehouse.”

After this meeting, Appellants amended their June 6, 2002 application to feature a list of excluded uses. This excluded-uses list included: (a) hazardous material defined by federal statute; (b) storage and processing of flammable/explosive material or material dangerous to the lives of humans, animals, or plants; (c) any other use prohibited by local, state, or federal law. At the October 7, 2002 Board of Aldermen meeting, members reviewed this resubmission and said the permit would not be approved until “it was further amended to include ‘medical waste’ and ‘buoyant’ [materials] on excluded uses list.”

While this matter was' pending in the trial court, Appellants’ attorney deposed Gonzales in his capacity as the City’s floodplain administrator. The deposition was admitted in evidence by agreement. Gonzales stated that, prior to any floodplain permit, Appellants presented him with a building permit Stericycle had received for the property. Gonzales also said the written instruction to delay approval of the floodplain permit was the first from the Board of Aldermen he’d received in his eight years with the City. Gonzales said that he had never asked what type of building was being proposed for the property or that building’s purpose.

Based upon Gonzales’ deposition, Appellants maintained in the circuit court that the City did not base its decision to deny the application for a floodplain permit on competent and substantial evidence, but rather on matters arbitrary, capricious, unreasonable, unlawful, and in excess of their jurisdiction. The City asserts that the municipal codes regulate floodplains for the “promotion of health, safety and general welfare and the minimize safety hazards in [these] areas.” It contends that the Solid Waste Permit issued by DNR and the existence of single-family developments around the property required the City to deny the permit. The trial court agreed and judgment was entered for the City.

Here, as in the circuit court, Appellants argue that City erred in denying the application for floodplain permit because the decision was not based upon substantial and competent evidence and was arbitrary, capricious, illegal and void. Appellants contend that: (a) there was no evidence that Appellants would store “buoyant, flammable, explosive or injurious materials” on the site; (b) all requirements for the floodplain permit were satisfied, and the City had no evidence to support its requirement that “medical waste” be included on the excluded-uses list for the property; and (c) the city imposed conditions on Appellants that were not required of other, similarly-situated applicants for floodplain development permits.

Since the denial of a zoning permit is an administrative function, State ex rel. St. Louis County v. Jones, 498 S.W.2d 294, 298 (Mo.App.1973), the municipal entity denying the permit must base their decision on competent and substantial evidence on the record, and any decision not based on such evidence is arbitrary and capricious, and therefore, illegal and void. Tee-fey, 24 S.W.3d at 684.

The stated public policy behind the City’s floodplain management is to “promote public health, safety and general welfare. and to minimize health and safety hazards in these areas.” To that end, the City says it can restrict or prohibit uses that are dangerous to health, safety, or property in times of flooding heights or velocity.

'The City referred to the Solid Waste Permit to Appellants by DNR on February 22, 2002, that explicitly spelled out acceptable waste at this facility. This included “medical waste and Animal and Plant Health Inspection Service waste.” The' Solid Waste Permit also included Stericycle as a permittee. The City points out that, despite the Roussells’ claim that the property’s future use is undetermined, there is no evidence on the record to suggest that Appellants’ tie with Stericyele on the property has been severed. Thus, the City says, there was evidence suggesting that Appellants could store buoyant, flammable, explosive or injurious materials on the site.

Additionally, Appellants maintain that their compliance with the City’s code, § 410.040(B)(1)(b), to build five feet over the 100-year-flood minimum excludes the structure’s status as within the floodplain. This is a misreading of § 410.040(A)(2) of the City’s code, which allows for non-residential structures to be built at least one foot over the floodplain, “subject to all provisions of this Chapter.” § 410.040(A)(3)(a) of the City’s code. Simply following the provision for building over the 100-year-flood minimum may not diminish or delete the need to protect the public from buoyant, flammable, explosive or injurious materials.

Under § 410.030(D) of the City’s code, an application for a Floodplain Permit shall include information regarding description of the work to be covered by the floodplain development permit, use or occupancy for which the proposed work is intended, other information as reasonably required by the Floodplain Administrator, and also be accompanied by plans and specifications for proposed construction. These requirements may not only help the municipal decision-maker determine requests that will affect the best interest of public health, welfare, safety and morals but also to use those factors in order to measure the impact on the general character of the neighborhood. Sandbothe, 647 S.W.2d at 203-04.

Appellants contend that adding “medical waste” to the list of excluded uses for the property was not justified by the record, and, therefore, they had fully satisfied the requirements of the City’s application process. The existence of single-family developments around the proposed property, coupled with Appellants’ Solid Waste Permit, appear to have caused the request for specifics about the property’s use. The municipal code allows the City to seek additional information as part of the application process.

Based on these considerations, the City’s request for an excluded-uses list including medical waste is based upon the authority of the municipal code as well as the evidence in this proceeding. The City may determine to restrict or prohibit uses that are dangerous to health, safety, or property in times of flooding.

A municipal body, in denying zoning permits, may not “pick and choose” between similarly-situated applicants. Ford Leasing Dev. Co. v. City of Ellisville, 718 S.W.2d 228, 233 (Mo.App.1986). Nothing in the record suggests that the City has approved the permit of a similarly-situated applicant. Appellants point to Gonzales’ assertion that “no [such] circumstance had ever been presented [to him]” during his eight-year tenure with the City as evidence. This does not prove that the City has granted an application prior to this in a similar situation. The City may not have had any similarly-situated applicants prior to Gonzales’ employment or could have had similarly-situated applicants whose requests were denied prior to Gonzales’ arrival.

Appellants have failed to meet their burden to demonstrate that the City’s action in denying their application was not supported by competent and substantial evidence and that it was illegal, arbitrary, capricious, unreasonable, or in excess of the City’s authority. We cannot say the decision of the Ozark Board of Aldermen was improper.

The judgment is affirmed.

GARRISON, P.J., concurs in result only.

RAHMEYER, J., concurs.

      . § 410.040(B)(1)(b) of the City Code of Ozark, Missouri, states:
      In all areas of special flood hazard, once base flood elevation is obtained, as set forth in Section 410.040(a)(2), the following provisions are required:
      b. Non-residential construction. New construction or substantial improvement of any commercial, industrial, or other nonresidential structure, including manufactured homes, shall have the lowest floor, including basement, elevated to or one* (1) foot above the base flood level, or together with the attendant utility and sanitary facilities, be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydro-dynamic loads and effects of buoyancy. A registered professional engineer or architect shall certify that the standards of this Subsection are satisfied. Such certification shall be provided to the Floodplain Administrator as set forth in Section 410.030(C)(7)(c).
      *The FEMA, Region VII office recommends elevating to one (1) foot above the base flood elevation to qualify for flood insurance rates based upon floodproofing.
      § 410.040(A)(2) of the City Code of Ozark, Missouri, states:
      All areas identified as unnumbered A Zones on the FIRM are subject to inundation of the 100-year flood; however, the base flood elevation is not provided. Development within unnumbered A Zones is subject to all provisions of this Chapter. If Flood Insurance Study data is not available, the community shall obtain, review, and reasonably utilize any base flood elevation or floodway data currently available from Federal, State, or other sources.
      § 410.040(A)(3)(a) of the City Code of Ozark, Missouri, states:
      All new construction, subdivision proposals, substantial improvements, prefabricated buildings, placement of manufactured homes, and other developments shall require:
      a. Design or adequate anchorage to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy[.]

      . § 410.030(D) of the City Code of Ozark, Missouri, states:
      D. Application For Floodplain Development Permit. To obtain a floodplain development permit, the applicant shall first file an application in writing on a form furnished for that purpose. Every floodplain development permit shall:

        1. Describe the land on which the proposed work is to be done by lot, block and tract, house and street address, or similar description that will readily identify and specifically locate the proposed building or work;
      2. Identify and describe the work to be covered by the floodplain development permit;
      3. Indicate the use or occupancy for which the proposed work is intended;
      4. Indicate the assessed value of the structure and the fair market value of the improvement;
      5. Identify the existing base flood elevation and the elevation of the proposed development;
      6. Give such other information as reasonably may be required by the Building Inspector;
      7. Be accompanied by plans and specifications for proposed construction; and
      8. Be signed by the permittee or his/her authorized agent who may be required to submit evidence to indicate such authority.


text:
    Kevin D. BARNES, Movant-Appellant, v. STATE of Missouri, RespondentRespondent.
    No. 26574.
    Missouri Court of Appeals, Southern District, Division One.
    April 28, 2005.
    Ellen H. Flottman, Columbia, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Kevin D. Barnes (“Movant”) appeals from the motion court’s denial, without an evidentiary hearing, of his amended motion to vacate, set aside, or correct sentence and judgment brought pursuant to Rule 24.035.

On May 24, 2002, Movant pled guilty to the class C felony of burglary in the second degree in violation of Section 569.170, and the class C felony of stealing in violation of Section 570.030. The trial court found that Movant understood the charges and consequences of his plea and subsequently sentenced Movant, in accordance with a plea agreement, to concurrent seven-year sentences on each count. In accordance with the plea agreement, the court required Movant to serve 120 days shock time in the Howell County jail, and suspended the execution of the seven-year sentences. On January 21, 2004, Movant’s probation was revoked and the court ordered execution of the two seven-year sentences to run concurrently.

Movant filed a timely pro se motion for post-conviction relief under Rule 24.035. Appointed counsel filed an amended motion on May 25, 2004, and on September 8, 2004, the motion court entered an order summarily denying Movant’s motion without an evidentiary hearing. The court did not issue any findings of fact and conclusions of law. The order stated:

The Court considers the motion herein and its full text; takes judicial notice of the files of this Court in the original case and the post-conviction remedy case; and reviews the filed transcript of proceedings herein.
The Court finds movant not be entitled to relief herein; and, that the matters before the Court on record do not support movant’s post-conviction allegations; nor, that he was prejudiced by any proceedings or lack of proceedings. Graham v. State, 11 S.W.3d [807] (Mo. App.S.D.1999) (rehearing/transfer/cer-tiorari denied). This having been determined, formal hearing and oral presentation is not necessary nor helpful. So ordered. Clerk to copy counsel.

Movant now appeals, presenting two points relied on. In one of his points, Movant contends that the motion court clearly erred in failing to enter specific findings of fact and conclusions of law in ruling on his Rule 24.035 motion. He asserts, and the State concedes, that the motion court’s findings and conclusions were not sufficient to provide meaningful appellate review as to any of the four claims raised in Movant’s 24.035 motion. We agree. Accordingly, we need not review Movant’s other point on appeal.

Our review of a motion court’s ruling on a motion for post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Maberry v. State, 137 S.W.3d 543, 546 (MoApp. S.D.2004). Since the findings of the motion court are presumptively valid, the clearly erroneous standard is satisfied only if after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991); Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000). Movant will succeed on his ineffective assistance claim if he can show: “(1) that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney, and (2) that he was prejudiced in that a different outcome would have resulted but for trial counsel’s errors.” Norville v. State, 83 S.W.3d 112, 114 (Mo.App. S.D.2002); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Rule 24.035(j) provides that the motion court “shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” “A mere statement that the motion, files, and records conclusively show no entitlement to post-conviction relief fails to constitute the requisite findings contemplated by the rule.” Gaddis v. State, 121 S.W.3d 308, 311 (Mo.App. W.D.2003).

There are two situations recognized by the Supreme Court where reversal is not warranted even though the motion court failed to make the necessary findings and conclusions. These two exceptions are: “(1) when the only issue before the court is one of law, findings of fact are not required, if conclusions of law are made; (2) where the motion court conducted a hearing on a post-conviction motion and no substantial evidence was presented to support the allegation upon which the court failed to make findings.” Gaddis, 121 S.W.3d at 312; see also Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). Neither of these two exceptions applies in Movant’s case; first, the motion court did not issue conclusions of law and, second, no eviden-tiary hearing was held.

The Eastern District of this court has also outlined three additional exceptions to the finding and conclusions requirement. They occur when: (1) the court fails to “issue a proper conclusion of law on an isolated issue” and it is clear that the movant is entitled to no relief, as a matter of law, and will suffer no prejudice if a remand is denied; (2) there are issues “that were not properly raised or are not cognizable in a post-conviction motion”; and (3) “the motion itself was insufficient.” Bowens v. State, 18 S.W.3d 118, 120 (Mo.App. E.D.2000). None of these exceptions apply in this case.

The motion court’s failure to issue findings of fact and conclusions of law as mandated in Rule 24.035(j) requires a reviewing court to reverse and remand. Holloway v. State, 764 S.W.2d 163, 164 (Mo.App. W.D.1989). Until the motion court enters sufficient findings of fact and conclusions of law, appellate review is not possible. Id. at 165. Therefore, the judgment is reversed and the cause remanded to the motion court for further proceedings consistent with this opinion.

PREWITT, J., and RAHMEYER, J., concur.

      . References to rules are to Missouri Rules of Criminal Procedure (2004).

      . References to statutes are to RSMo (2000) unless otherwise indicated.


author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Patti Elizabeth JOHNSON, Appellant.
    No. 26496.
    Missouri Court of Appeals, Southern District, Division Two.
    April 28, 2005.

      Nancy A. McKerrow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant was convicted, following a jury trial, of the Class C felony of stealing, pursuant to section 570.030. She was sentenced by the trial court as a prior and persistent offender, pursuant to sections 558.016 and 557.036, to a term of fifteen years imprisonment. In her sole point on appeal, Appellant contends the trial court erred in sentencing her as a prior and persistent offender because Respondent State of Missouri (“the State”) failed to prove she was a prior and persistent offender beyond a reasonable doubt. Specifically, she asserts the State did not prove that she was the person convicted of several felonies in Sedgwick County, Kansas, in 1995 and of a felony in Jasper County, Missouri, in 1991. We affirm the judgment of the trial court.

As stated in State v. Johnson, 150 S.W.3d 132,136 (Mo.App.2004),

The trial court shall find a defendant to be a prior and persistent offender if: 1) the State pleads in the indictment or information, original or amended, or in the information in lieu of indictment, all essential facts warranting a finding that the defendant is a prior and persistent offender; 2) the State introduces suffi-dent evidence to warrant a finding that the defendant is a prior and persistent offender; and 3) the trial court finds beyond a reasonable doubt that the defendant is a prior and persistent offender.

See also § 558.021.1; § 558.016. When the State relies on a previous conviction of an accused to impose a more severe punishment, that conviction must be proved beyond a reasonable doubt. State v. Lawson, 86 S.W.3d 183, 186 (Mo.App.2002); § 558.021.

The record shows that at trial the State sought and obtained the admission into evidence of Exhibit 6, the certified record of Appellant’s prior conviction in Jasper County, Missouri. At that time, Appellant’s attorney stated, “we have no objection to the introduction of that Exhibit.”

Appellant concedes that she did not properly preserve this point for appellate review and, therefore, requests plain error review under Rule 30.20. “A defendant’s claim of plain error must establish on its face substantial grounds for us to believe a manifest injustice or a miscarriage of justice occurred; otherwise, we will decline to review for plain error.”

Johnson, 150 S.W.3d at 136. “Plain error review is appropriate where it appears a defendant has been improperly sentenced as a prior or persistent offender.” Id. The plain error rule is to be used sparingly and does not justify a review of every point that has not been preserved properly. State v. Lubbers, 81 S.W.3d 156, 160 (Mo.App.2002). Plain errors are evident, obvious, and clear. State v. Louis, 103 S.W.3d 861, 864 (Mo.App.2003). We determine whether such errors exist based on the facts and circumstances of each case. See State v. Williams, 9 S.W.3d 3, 12 (Mo.App.1999).

However, “[a]s distinguished from a simple failure to object, an announcement by the defense of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.” State v. Williams, 118 S.W.3d 308, 313 (Mo.App. 2003). Accordingly, we deny plain error review as to any issue relating to the Jasper County guilty plea and conclusively determine that the “Patty M. Johnson” set out in the Jasper County conviction is the same person as Appellant.

Appellant also claims that the State’s Exhibit 1, the certified record of Appellant’s prior Kansas convictions, is insufficient because there are “no identifiers” showing that the “Pattie E. Johnson” named in the records from Kansas is, as she terms it in her point relied on, the present Appellant, “Patti E. Johnson.”

“[T]he identity of first and last names authorizes a finding that defendant was the person previously convicted.” State v. Green, 674 S.W.2d 615, 623 (Mo.App.1984); see also Wright-El v. State, 760 S.W.2d 488, 490 (Mo.App.1988); State v. Madden, 394 S.W.2d 317, 320 (Mo.1965). “Equally well-established, however, is the rule that identity of names makes a prima facie showing that the person named in a record is in fact the defendant for the purpose of invoking habitual criminal acts.” Mays, 622 S.W.2d at 23. “Prima facie evidence, if not refuted, constitutes proof beyond a reasonable doubt.” Wright-El, 760 S.W.2d at 490; see also Mays, 622 S.W.2d at 23. “Reliance upon prima facie evidence does not violate the constitutional requirement of proof beyond a reasonable doubt....” Mays, 622 S.W.2d at 23.

Furthermore, “[t]he absence or inclusion of a middle name does not defeat the prima facie case since a middle name has little, if any, legal significance.” Wright-El, 760 S.W.2d at 490. In fact, in State v. McMillan, the reviewing court determined that “[t]he identity of first and last names alone authorized a finding by the trial court that defendant was the person previously convicted.” State v. McMillan, 593 S.W.2d 629, 635 (Mo.App.1980); State v. Michael, 361 S.W.2d 664, 666 (Mo.1962).

It is true that the spelling of Appellant’s name as “Patti” is slightly different from the spelling of her name as “Pattie” in the Kansas judgment. However, “[u]nder the doctrine of idem sonans, absolute accuracy in spelling names is not required in civil or criminal proceedings, where the names sound the same such that an attentive ear finds difficulty in distinguishing them when pronounced.... ” State v. McGreevey, 832 S.W.2d 929, 932 (Mo.App.1992). This doctrine applies here “and no error in the spelling of [Patti E. Johnson’s] name exists such that [she] may not be sentenced as a [prior and persistent] offender.” Id.

Lastly, the record reveals that Appellant made no claim in the trial court that she was not in fact the person named in the Kansas convictions, and she offered no evidence to refute the State’s prima facie showing. Appellant has never asserted, and does not now assert, that she was not convicted of the prior felonies; she merely challenges the proof required to find that she was a prior and persistent offender. Where, as here, an Appellant offers no evidence to rebut the prima facie showing of a prior felony conviction, the trial court may act in reliance upon that evidence. State v. Shumate, 516 S.W.2d 297, 300 (Mo.App.1974).

Here, the evidence adduced was sufficient to sustain the trial court’s determination that Appellant was the person named in the prior Kansas convictions. See State v. Fields, 616 S.W.2d 86, 87 (Mo.App.1981); Mays, 622 S.W.2d at 23 (holding that where the “[defendant having neither challenged nor rebutted the evidence of the [previous] conviction, that evidence overcame [the] presumption of innocence as to that essential element of the case and it sufficiently established the ... previous convictions to support the judgment under [section] 558.016”).

Additionally, following the close of the State’s evidence, Appellant made a record regarding her choice not to testify. She acknowledged having “at least ... two pri- or felony convictions” on her record. See McMillan, 593 S.W.2d at 635. “Appellant, by [her] own words, bolsters the [S]tate’s claim, by admitting [s]he is a prior offender-” Wright-El, 760 S.W.2d at 490. Point denied.

The judgment of conviction and sentence of the trial court is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . Unless otherwise specified, all statutory references are to RSMo 2000 and all Rule references are to Missouri Court Rules (2005).

      . As Appellant does not challenge the sufficiency of the evidence to support her conviction, a detailed recitation of the facts underlying her conviction is unnecessary in the present matter.

      .Section 558.016 provides, in pertinent part,
      1. The court may sentence a person who has pleaded guilty to or has been found guilty of an offense to a term of imprisonment as authorized by section 558.011 or to a term of imprisonment authorized by a statute governing the offense, if it finds the defendant is a prior offender or a persistent misdemeanor offender, or to an extended term of imprisonment if it finds the defendant is a persistent offender or a dangerous offender.
      2. A "prior offender” is one who has pleaded guilty to or has been found guilty of one felony.
      3. A "persistent offender” is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.

      . Appellant, of course, offered no evidence at trial rebutting the prima facie showing of this prior conviction. "Prima facie evidence is sufficient evidence to outweigh the presumption of innocence and if not met by opposing evidence to support a verdict of guilty.” State v. Mays, 622 S.W.2d 21, 23 (Mo.App.1981) (quoting Bailey v. Alabama, 219 U.S. 219, 234, 31 S.Ct. 145, 149, 55 L.Ed. 191 (1911)).

      . In regard to prior convictions from outside of the State of Missouri, "our trial courts are empowered at their election to impose sentencing in place of the jury upon a finding that the accused stands convicted of a previous felony from any other jurisdiction (i.e., federal or sister state), without any additional proof or showing that the prior felony conviction is also a felony under Missouri law.”
        State v. Rellihan, 662 S.W.2d 535, 546 (Mo.App.1983).

      .We note that Appellant identifies herself in her point relied on as "Patti E. Johnson;” however, the trial court’s judgment sets out her name as "Patti Elizabeth Johnson." Exhibit 1 reveals that "Pattie E. Johnson” was sentenced to a total of 21 months in the custody of the Kansas Secretary of Corrections arising from convictions relating to eight different counts. Count 1 shows the offense of burglary was committed on 4/8/94 for which she was sentenced to 21 months imprisonment; Count 2, theft, was committed on the same date, for which she was sentenced to 10 months imprisonment to run concurrent to Count 1; Counts 3, 6, 7 and 8 for forgery were committed on 4/10/94 with a prison sentence of 14 months each and all to run concurrent with Count 1; and, Counts 4 and 5 for forgery were committed on 4/9/94 for which she was sentenced to 14 months imprisonment, concurrent with Count 1. Indeed, in its finding that Appellant was a prior and persistent offender, the trial court made no reference to the Jasper County, Missouri, conviction at all, since the number and severity of Appellant’s convictions set out in the Kansas judgment satisfied the provisions of sections 558.016 and 557.036. See also Kim-mins v. State, 923 S.W.2d 460, 461 (Mo.App. 1996) (holding that “[f]or purposes of determining persistent offender status it is irrelevant that the two prior felonies which occurred on different dates were disposed of in a single proceeding”).

      . See State v. Cook, 463 S.W.2d 863, 868 (Mo.1971) (held that the difference between a name with a middle initial and one without a middle initial "is not significant”); State v. McBumett, 694 S.W.2d 769, 771 (Mo.App.1985) (held that there was no difference where the Appellant used a middle initial and the conviction record contained the entire middle name).

      . McMillan and Mays were decided under the Second Offender Act, section 556.280, RSMo 1969, the predecessor statute to current sections 558.016 and 558.021. See State v. Smith, 665 S.W.2d 663, 669 (Mo.App.1984).