author: PHILLIP R. GARRISON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Allen D. POTTS, Defendant-Appellant.
    No. 26531.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 23, 2005.
    Motion for Rehearing or Transfer Denied Dec. 15, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      William J. Swift, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

A jury found Allen D. Potts (“Appellant”) guilty of the class B felony of possession of a controlled substance with the intent to distribute, Section 195.211 , for which he was sentenced as a prior and persistent offender, to a term of fifteen years in the Missouri Department of Corrections. He appeals claiming, inter alia, that the prosecutor vindictively brought this charge in violation of his due process rights under the Missouri and United States Constitutions.

On September 5, 2002, Christen Shilling (“Shilling”), an investigator with the Southwest Missouri Drug Force dressed in civilian clothes, was going through some trash in a dumpster near the Aurora, Missouri Police Department searching for evidence of drug sales in connection with an unrelated case. Appellant and James Harvill (“Harvill”), traveling in Appellant’s car, pulled up next to Shilling and Appellant asked her where “Timmy Yates” lived. After Shilling informed them where Yates’ parents lived, Appellant asked if she used drugs to get “high.” When Shilling said “yeah,” Appellant offered to “get [her] high” if she sold drugs for him. After a moment Appellant changed his mind and offered to give Shilling drugs. Appellant then asked Shilling to leave with them. In order to arrange for back-up, Shilling said that she was completing community service and asked Appellant to come back in one hour. When Appellant returned one hour later, Shilling went into the police station on the pretense that she needed to “sign out” of the day’s community service work. While inside she directed Officer Charlotte Malicoat (“Malicoat”) to meet Appellant outside while she arranged for further back-up. Moments later, after witnessing a brief exchange between Appellant and Malicoat concerning Appellant’s purpose for being at the police station, Shilling identified herself as a police officer and asked both Appellant and Har-vill to get out of the car.

Shilling searched Harvill for weapons and found small quantities of marijuana and what appeared to be methamphetamine. She then asked Harvill if anything else was in the car and he retrieved a black bag from underneath the passenger seat where he had been sitting. The bag contained two empty syringes, a glass pipe and a small piece of cotton. Shilling then searched the driver’s side of the vehicle and found a syringe under the seat cover of the driver’s seat containing eighty units of a clear liquid, which was later determined to be methamphetamine.

Appellant was arrested and charged as a prior and persistent offender with the class C felony of possession of a controlled substance as provided in Section 195.202. Trial began over one year later, on October 22, 2003. During voir dire one venire-person said she had seen Appellant around the county. The prosecutor then asked her if there was “[ajnything about seeing him around that would cause [her] to give more weight to his testimony than any other testimony?” Appellant objected to this reference to his possible testimony and moved the court for a mistrial, which the trial court granted.

Immediately thereafter the prosecutor informed the trial court of his intention to voluntarily dismiss the possession charge and re-file the case with the greater charge of possession of a controlled substance with the intent to distribute, a class B felony punishable by not less than ten and no more than thirty years or life in prison. Appellant requested that the prosecutor be barred from filing the greater charge, arguing that it would be a violation of due process because the prosecutor’s action amounted to punishment for Appellant’s exercise of his right to seek a mistrial based on the prosecutor’s remark. The request was overruled by the trial court and the prosecutor subsequently filed a new compliant containing the enhanced charge. Prior to retrial, Appellant moved to dismiss the charge on the same due process grounds, but the trial court again overruled his motion.

On June 10-11, 2004, Appellant was tried before a jury and found guilty of possession of a controlled substance with the intent to distribute for which he was sentenced to a term of fifteen years as a prior and persistent offender. This appeal followed the overruling of his motion for a new trial.

Appellant relies on four points on this appeal. As we find Point I necessitates reversal we need not address Appellant’s remaining issues. In Point I, Appellant alleges that the prosecutor acted vindictively when he raised the charge from possession of a controlled substance to possession with the intent to distribute after the trial court sustained Appellant’s motion for a mistrial during voir dire. He also argues that the prosecutor deliberately induced the mistrial in order to file the greater charge and as a result double jeopardy bars further prosecution on either charge. We conclude that the first part of that contention requires reversal, but disagree with Appellant’s second- argument.

When the State has probable cause to believe a crime has been committed, the “decision whether or not to prosecute and what charges to file generally rests entirely within the prosecutor’s discretion.” State v. Patino, 12 S.W.3d 733, 739 (Mo.App. S.D.1999). This decision is rarely subject to judicial review. State v. Gardner, 8 S.W.3d 66, 70 (Mo. banc 1999); Patino, 12 S.W.3d at 739. Not all charges that can be, must be filed in the initial indictment. State v. Massey, 763 S.W.2d 181, 183 (Mo.App. W.D.1988). Prosecutors can hold some charges in abeyance for strategic use. Gardner, 8 S.W.3d at 70; Massey, 763 S.W.2d at 183.

However, when such a decision comes after an accused has exercised a constitutional or statutory right, those principles conflict with the premise that “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); see State v. Cayson, 747 S.W.2d 155, 157, (Mo.App. W.D.1987). Appellant relies on Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), for the proposition that due process bars the State from retrying him on the higher charge.

In Blackledge, the defendant was convicted of misdemeanor assault in the District Court of Northampton County, North Carolina. 417 U.S. at 22, 94 S.Ct. 2098. After he exercised his statutory right to a de novo trial in the county’s Superior Court, the prosecutor obtained a new indictment from a grand jury charging him with the greater offense of assault with a deadly weapon with the intent to kill, to which he plead guilty. Id. at 22-23, 94 S.Ct. 2098. The United States Supreme Court held that although there was no evidence that the prosecutor had acted in bad faith or maliciously, the imposition of a penalty upon a defendant for exercising a right of appeal violated due process because there was a realistic likelihood of vindictiveness. Id. at 28, 94 S.Ct. 2098.

The Due Process Clause is implicated when the State “up[s] the ante” by charging a defendant with a greater offense whenever a defendant pursues his statutory right to an appeal. Id.; see also Cayson, 747 S.W.2d at 157. Blackledge was grounded upon the proposition that because “fear of ... vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process ... requires that a defendant be freed of apprehension of such a retaliatory motivation” of the prosecutor. 417 U.S. at 28, 94 S.Ct. 2098.

In U.S. v. Goodwin the Court qualified that statement, explaining “that the due process violation lay ... not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction.” 457 U.S. 368, 378, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (quoting Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663). Goodwin also explained that in essence, Blackledge created a presumption of vindictiveness which arises in certain circumstances. 457 U.S. at 376, 102 S.Ct. 2485. The underlying rationale for the presumption being that:

Motives are complex and difficult to prove. As a result in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to “presume” an improper vindictive motive.

Id. at 373, 102 S.Ct. 2485. However, because of the severity of this presumption, it is rarely invoked. U.S. v. Campbell, 410 F.3d 456, 462 (8th Cir.2005). These principles were applied in State ex rel. Patterson v. Randall, when the Supreme Court of Missouri used the presumption of vindictiveness to bar the State from seeking the death penalty against a defendant after he had been granted a new trial. 637 S.W.2d 16, 18 (Mo. banc 1982).

The presumption of vindictiveness only applies when there is a realistic likelihood of vindictiveness. Id. at 17-18; see also Goodwin, 457 U.S. at 373, 102 S.Ct. 2485. In Missouri, this likelihood is judged by weighing two factors: 1) the prosecutor’s stake in deterring the exercise of the right being asserted, and 2) the prosecutor’s actual conduct. Gardner, 8 S.W.3d at 70; Massey, 763 S.W.2d at 183; Cayson, 747 S.W.2d at 158; see also U.S. v. Andrews, 633 F.2d 449, 454 (6th Cir.1980). When a realistic likelihood of vindictiveness is found the burden shifts to the State to rebut this “motivation, not by subjective good faith assertions but by objective on-the-record explanations.” Massey, 763 S.W.2d at 183.

The State argues that Goodwin limited the application of the Blackledge presumption to those situations where “some evidence of actual vindictiveness calculated to influence the defendant’s exercise of his due process right” can be shown. We disagree. Our reading of Goodwin leads us to the conclusion that a defendant may prove prosecutorial vindictiveness in one of two ways. See Goodwin, 457 U.S. at 380-381, 102 S.Ct. 2485; U.S. v. Wood, 36 F.3d 945, 946 (10th Cir.1994). First, if a realistic likelihood of vindictiveness is found, a presumption is erected in defendant’s favor which the prosecutor must rebut. See Goodwin, 457 U.S. at 384, 102 S.Ct. 2485. This presumption may operate in the absence of any evidence of vindictive motive. Id. at 373, 102 S.Ct. 2485. Second, a defendant can make a ease for prosecutorial vindictiveness without the aid of the Blackledge presumption if he can prove, through objective evidence that the sole purpose of the State’s action was to penalize him for exercising some right; See Goodwin, 457 U.S. at 380 n. 12, 102 S.Ct. 2485; Wood, 36 F.3d at 946.

The State further contends that the Blackledge presumption is limited to those situations in which the State files more serious charges upon retrial following an appeal. We do not believe that Blackledge establishes such a bright line test. In Cayson, the western district of this court applied the principles of Blackledge and its progeny when the State filed a higher charge as well as additional charges after the defendant’s motion for a new trial was sustained on the basis of instructional error. 747 S.W.2d at 157. There the prosecutor gave no explanation for why evidence tending to prove the elements of the enhanced charges was not presented at the first trial, nor was any given as to why the additional charge of first degree robbery was sought. Id. at 157. On appeal the court reversed, holding that the principles of Blackledge applied, that there was a realistic likelihood of vindictiveness and that the State failed to provide objective on-the-record evidence that the prosecutor was not acting vindictively in filing the enhanced charges against the defendant. Id. at 158.

While we could find no Missouri cases deciding the precise issue presented in this case, other jurisdictions have applied the presumption to those situations in which a prosecutor enhances the charge following a defendant’s successful motion for a mistrial. In Murphy v. State, 453 N.E.2d 219, 223 (Ind.1983), the Supreme Court of Indiana applied Blackledge to a prosecutor’s attempt to retry a defendant with an additional charge following a mistrial due to prosecutor’s employment of improper identification procedures. See also U.S. v. Jamison, 505 F.2d 407, 416 (D.C.Cir.1974) (a defendant’s right to “seek a premature end to unfair proceedings” is not significantly less important than a statutory right to appeal an unfair judgment).

We see no logical reason for a bright line test which would allow the presumption of vindictiveness to apply when a defendant asserts his right to a new trial, but not when he exercises his rights during trial. Furthermore, our concern for judicial efficiency weighs against the per se rule that the State advocates. Allowing the application of the presumption after reversals but not after mistrials could discourage defendants from seeking mistrials when error prejudicial to them has occurred. See Murphy, 453 N.E.2d at 226.

This is not to say there are no limits to the application of the Blackledge presumption. The United States Supreme Court has declined to invoke it when a prosecutor filed a higher charge after the defendant refused to accept a plea bargain, because the “give and take” necessary in plea negotiations does not hold the same likelihood of vindictiveness as was the case in Black-ledge. Bordenkircher, 434 U.S. at 364, 98 S.Ct. 663. It has also declined to apply the Blackledge presumption when a prosecutor increased the charges against the defendant after he refused to plead guilty and requested a jury trial. Goodwin, 457 U.S. at 382-383, 102 S.Ct. 2485. Missouri courts have consistently refused to apply the Blackledge presumption in the pretrial setting. The Goodwin court cautioned against using the presumption in the pretrial setting:

There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have fully crystallized.... Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some “burden” on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor’s probable response to such motions is to seek to penalize and deter.

457 U.S. at 381, 102 S.Ct. 2485.

Based upon these principles the State argues that the presumption is not warranted in this case because the mistrial was granted in the early stages of the case, before the prosecutor’s assessment of the case had fully materialized. However as will be seen, the prosecutor expressly stated that he knew that he could have charged Appellant with the intent to distribute, but he choose to proceed on the lesser charge. In any event, Appellant was not asserting a pretrial right in this case. Appellant was granted a mistrial as a result of the prosecutor’s questioning during voir dire. The trial court sustained Appellant’s motion for a mistrial after the prosecutor asked a venireperson how much weight she would give to defendant’s testimony, allowing the jurors to draw unfavorable inferences should Appellant have chosen not to testify, thereby violating his right to remain silent. See State v. Graham, 964 S.W.2d 836, 838 (Mo.App. S.D.1998) (holding that the trial court erred in not declaring a mistrial when the prosecutor made reference during voir dire to the fact that the defendant did not have to testify at trial).

“[T]rial judges and lawyers commonly understand the beginning of trial to be that time when the selection of the jury begins.” State v. Cullen, 646 S.W.2d 850, 854 (Mo.App. W.D.1982). There arises a point beyond which charges may normally be expected to be filed or amended. See Murphy, 453 N.E.2d at 224. While we should be vigilant in protecting the discretion that prosecutors enjoy in making pretrial decisions to advance societal interests, “once a trial begins ... it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted.” Goodwin, 457 U.S. at 381, 102 S.Ct. 2485; see also Cayson, 747 S.W.2d at 158. As will be seen, these principles are particularly apropos here.

Having decided that the cases do not support a bright-line rule, we must determine whether under the circumstances of this case there is a realistic likelihood of vindictiveness which justifies the imposition of the Blackledge presumption. In doing so we consider the prosecutor’s stake in deterring the exercise of the right being asserted, and the prosecutor’s conduct, which is to be judged on a case by case basis. Cayson, 747 S.W.2d at 158. We also note that it has been said that the presumption of vindictiveness will not ap-piy;

[i]f any objective event or combination of events in [the] proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of the charges was motivated by some purpose other than a vindictive desire to deter or punish appeals.

Wood, 36 F.3d at 947; see also U.S. v. Rodgers, 18 F.3d 1425, 1430 (8th Cir.1994). We have searched the record in this case and have been unable to find any plausible, non-vindictive reason for the new charge that was filed.

The State has a stake in deterring defendants from seeking mistrials because it has expended resources on, among other things, preparing the case and securing the attendance of witnesses. In addition, prosecutors have a natural stake in deterring mistrials based upon defendants’ motions because a significant amount of the time those motions are the result of error prejudicial to the defendant. See Jamison, 505 F.2d at 416 n. 15. For example, in this case had there been no mistrial, the State’s case arguably would have been improved by the prosecutor’s improper reference to Appellant’s possible testimony.

The crux of this case, however, is the prosecutor’s.conduct. In response to Appellant’s motion to prevent the greater charge from being filed, the prosecutor stated:

If [counsel] will recall my conversations with them prior to this thing going to trial and even after the last — this trial setting was set. I have made numerous comments to them that the [S]tate had thought about dismissing the case and refiling it as a more serious charge. We didn’t do it after the preliminary hearing although I have had discussions with both counsel.... [T]his isn’t done simply as a vindictive thing against this defendant. It is something we considered long before this thing went to trial. We decided to go ahead and take it to trial on the lesser charge today. He was facing 15 years, but that’s the reason why this is going to be refiled — it’s not because of the mistrial. It assists us in being able to do that truly. But it is being refiled based on our conversations. And I know I had those at least with [counsel] on various oceasion[s] during preliminary matters in this case. I make those statements as an officer of the court.

After signaling his intent to do so when the mistrial was granted, the prosecutor entered a nolle prosequi as to the original charge of possession, and re-filed the cause with the heightened charge of possession with intent to distribute on the same day. There is nothing in the record to suggest that the prosecutor was unaware of the facts necessary to bring the higher charge before the trial began. See Cayson, 747 S.W.2d at 158. To the contrary, the prosecutor stated that he was well aware that this higher charge was possible long before the first trial. This action, in the context of this case, permits no logical, non-vindictive explanation for this prosecutor’s decision to re-file this case with a more serious charge on the same day Appellant was granted a mistrial. We find nothing to suggest that the prosecutor’s purpose was anything other than to deter the defendant from, or punish him for exercising his rights at trial. See Wood, 36 F.3d at 947.

We stress that our holding is based upon the facts and circumstances of this case. We do not suggest that all cases in which a prosecutor brings higher charges after a defendant has successfully sought a mistrial justify applying a presumption of vindictiveness. “[T]he Due Pi’ocess Clause is not offended by all possibilities of increased punishment ... but only by those that pose a realistic likelihood of ‘vindictiveness’” Goodwin, 457 U.S. at 384, 102 S.Ct. 2485 (quoting Blackledge, 417 U.S. at 27, 94 S.Ct. 2098). However, this case presents the rare circumstance in which the only rational explanation for the prosecutor’s action is one of vindictiveness. Therefore, we reluctantly conclude that there was a realistic likelihood that the prosecutor was acting vindictively and apply the presumption of vindictiveness that accompanies that conclusion.

Having found the presumption of vindictiveness is warranted we turn now to whether the State has overcome that presumption. The State reminds us that it has already made a record of its reasons for filing the higher charge and thus a new hearing on the matter is unnecessary. There is no definitive list of evidence which would rebut the presumption. At a minimum, the State must show objective, on-the-record evidence that it was not acting vindictively in substituting the higher charge. Massey, 763 S.W.2d at 183.

The record does not contain any objective evidence that there were other, non-vindictive reasons for the prosecutor’s actions. The State asserts that there was no vindictive conduct by the prosecutor because all the information necessary to charge Appellant with the greater offense was at hand prior to the start of the trial. The-State also relies heavily on the fact that the prosecutor informed both Appellant and the trial court that he could have brought the more serious charge prior to the start of the trial. The prosecutor claims that he did not file the more serious charge because he was already “set” for trial. The mistrial simply gave him the “opportunity” to charge the higher count.

This argument is undermined by the rhetorical question: why, if the prosecutor had at hand all the evidence necessary to support the enhanced charge all along, was the increased charge not filed until after the mistrial? We also note that five days before trial Appellant requested a continuance of the trial setting. That request was opposed by the State and denied by the trial court. If the reason the prosecutor did not file the enhanced charge was because the case was “set” for trial, conceding the motion for continuance would have provided an opportunity to file the charge the prosecutor says was warranted all along. By opposing the motion the prosecutor signaled that he was ready to proceed to trial on the charges that were then filed. The State simply has not pointed to an objective on-the-record explanation as to why the prosecutor did not file this charge prior to the start of the trial. See Patterson, 637 S.W.2d at 19. The State does not allege, nor does the record reveal, any evidence upon which the trial court could have found that the prosecutor had any motive other than one of vindictiveness for the exercise of Appellant’s right to request a mistrial. Based on Blackledge and its progeny, we are compelled to grant this portion of Appellant’s first point.

In Point I, Appellant also argues that the State is barred by double jeopardy from retrying him on the original charge, as well as the greater charge, citing State v. Clover, 924 S.W.2d 853 (Mo. banc 1996) (double jeopardy barred retrial after prosecutor intentionally attempted to bolster a weak case with inadmissible prior bad acts during his cross-examination of defendant). He also contends that the prosecutor intentionally caused the mistrial because he wanted to re-file the case with the higher charge. Appellant relies on Downum v. U.S., 372 U.S. 734, 737, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), for the proposition that when a jury is dismissed because the prosecutor is unprepared to prove the charges filed against the defendant, double jeopardy bars that defendant’s retrial on those charges. However, neither of these cases applies here because in both of them the prosecutor’s conduct occurred after a jury had been selected. Id. at 736. In the instant case, however, the mistrial was granted during jury selection.

Double jeopardy attaches to a jury trial after a jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); State v. Smith, 988 S.W.2d 71, 77-78 (Mo.App. W.D.1999); State v. Tiger, 972 S.W.2d 385, 388 (Mo.App. W.D.1998). The primary reason jeopardy is said to attach after the jury is selected is to “protect the interest of an accused in retaining a chosen jury.” Crist, 437 U.S. at 35, 98 S.Ct. 2156. In this case, Appellant was never in jeopardy on the original charge because the mistrial was granted during jury selection. As a result the prosecutor is not barred by double jeopardy from re-trying Appellant under the original charge of possession of a controlled substance.

Because the facts of this case present a realistic likelihood of vindictiveness we are required to apply the presumption of vindictiveness, and find that under the circumstances before us the State has failed to rebut this presumption with objective evidence. Therefore we reluctantly reverse the judgment of the trial court. The case is remanded to the trial court for further proceedings not inconsistent with this opinion.

SHRUM, P.J., and BARNEY, J., concur.

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

      . Although under Section 558.011.1(2) a class B felony carries a range of five to fifteen years in prison, in Appellant’s case he was found to be a prior and persistent offender, which under Section 558.016 raises the punishment to that of a class A felony under Section 558.011.1(1).

      . As was the case in Goodwin, 457 U.S. at 380-381, 102 S.Ct. 2485, and Blackledge, 417 U.S. at 28, 94 S.Ct. 2098, Appellant concedes that there is no evidence of actual vindictiveness in this case. "An example of objective evidence of a vindictive motive would be a prosecutor’s statement that he or she is bringing a new charge in order to dissuade the defendant from exercising [his] legal rights.” Campbell, 410 F.3d at 462; see also Goodwin, 457 U.S. at 380-381, 102 S.Ct. 2485. Because this is not present, a reversal is only warranted if the presumption of vindictiveness is applicable in this case. See Goodwin, 457 U.S. at 381, 102 S.Ct. 2485.

      . We note that Indiana operates under a stricter version of the doctrine of the presumption of vindictive prosecution than does Missouri. In Missouri, the prosecutor may rebut the presumption of vindictiveness when it applies. Patterson, 637 S.W.2d at 18-19. However, Murphy suggests that "fundamental fairness precludes ... the State be[ing] permitted to show [the] absence” of vindictive motive when the court finds a realistic likelihood of vindictiveness. 453 N.E.2d at 227. As a result the trial court did not consider whether the fact that the prosecutor was unable to file the habitual offender charge because he was without the evidence necessary to prove it before trial, was enough to rebut the presumption of vindictiveness. Id.

      . Gardner, 8 S.W.3d at 70 (no presumption where defendant’s refusal to waive statute of limitations defense regarding involuntary manslaughter charge resulted in a trial on the charge of second degree murder); State v. Buchli, 152 S.W.3d 289, 309 (Mo.App. W.D.2004) (presumption did not apply to situation in which higher charges were filed after defendant had moved to suppress evidence, and to dismiss because of a violation of his right to a speedy trial); State v. Miller, 981 S.W.2d 623, 629 (Mo.App. W.D.1998) (no presumption when prosecutor added a prior and persistent offender charge after the defendant refused a plea and asserted his right to trial); State v. Molinett, 876 S.W.2d 806, 808 (Mo.App. W.D.1994); Massey, 763 S.W.2d at 183 (the presumption does not apply when higher charges were added to the information after the defendant was released on bail).

      . There are numerous instances in which courts have found, no realistic likelihood of vindictiveness. See Woods v. State, 775 S.W.2d 552, 555 (Mo.App. S.D.1989) (prosecutor’s action followed a mistrial which resulted from a hung jury); Molinett, 876 S.W.2d at 808-809 (when prosecutor’s action occurred in the context of plea bargaining and after the defendant requested discovery); Massey, 763 S.W.2d at 183-184 (prosecutor’s action occurred after the defendant exercised his right to post bail).

      . Objective evidence could include, among other things: the unavailability of a Grand Jury at the time of the original filing, prosecu-torial inexperience, the discovery of previously unknown evidence or legal impossibility. Andrews, 633 F.2d at 456; see also Rodgers, 18 F.3d at 1431 (although evidence was known to the police that would support the additional charge, the fact that the prosecutor was unaware of it would have over come the presumption even if it applied). Furthermore, complex cases may not come together completely until shortly before or after trial has begun as the prosecutor may obtain corroborating evidence, turn coconspirators against one another, etc. Rodgers, 18 F.3d at 1431. These examples are not meant to be an exhaustive list, however they are illustrative of the type of objective evidence necessary to overcome the presumption.


source: Caselaw Access Project

author: JOHN E. PARRISH, Judge.

license: Public Domain

text:
    Robert A. SPEARS, Movant-Appellant v. STATE of Missouri, Respondent.
    No. 26834.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 28, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied Dec. 12, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      William J. Swift, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Judge.

Robert A. Spears (movant) was convicted, following a plea of guilty, of the class D felony of driving while intoxicated. §§ 577.010 and 577.023.1(4) and .3. Following receipt of a presentence investigation, defendant was sentenced to confinement in the department of corrections for a term of four years. The sentencing court requested that movant be placed in an institutional treatment program and retained jurisdiction over movant as permitted by § 559.115. The sentencing court thereafter received a further report on movant’s conduct. It concluded that placement of movant on probation as permitted by § 559.115 could be an abuse of discretion and directed that a hearing be held. Following that hearing, the sentencing court found that the release of movant on probation would be an abuse of discretion and denied probation.

Movant filed a motion for post-conviction relief as permitted by Rule 24.035. Counsel was appointed. Movant’s post-conviction counsel filed a statement in lieu of an amended motion stating that based on discussion with movant and review of case records, no additional facts or claims were known to counsel that were omitted from movant’s pro se 24.035 motion. Movant’s Rule 24.035 motion was denied without an evidentiary hearing. This court affirms.

Movant asserts in Point I that the motion court erred in denying probation because movant was told at his sentencing hearing that if he successfully completed the program to which he was committed, movant would be released and placed on probation; that movant successfully completed the program and did not receive what he had been promised. Movant further argues that he was denied the opportunity to withdraw his guilty plea.

The motion court found that the report the sentencing court received during the time movant was participating in the treatment program administered by the department of corrections disclosed “that Movant would ‘not commit to quitting’ consumption of alcohol and that Movant ‘didn’t feel that driving drank was a crime and that he (Movant) did it all the time.’ ” The motion court concluded:

Claim # 1 — Movant’s claim is that he is entitled to a grant of probation. Section 559.115, RSMo., does not require the Court to place [movant] on probation and contains a mechanism whereby probation may be denied, even if there is successful completion of the treatment program. That procedure was followed in this case. Probation is a privilege, not a right. State v. Welsh, 853 S.W.2d 466 (Mo.App. S.D.1993).
Claim # 2 — Movant’s plea bargain, signed by him, provides that in return for his guilty plea, the State agreed not to file other charges. Movant testified, under oath, when he pled guilty, that he had received no other promises from anybody that induced his guilty plea. There has been no violation of the plea bargain and the facts do not support Movant’s second claim.

The treatment program in which movant was placed was the Regimented-Substance Abuse Treatment Program at Farmington Treatment Center. Movant received a certificate of successful completion of the program. Prior to movant’s completion of the program, the Board of Probation and Parole reported on movant’s progress. The report noted that movant would not commit to quit using alcohol; that he did not feel that drunk driving was a crime; “that he did it all the time.” The report concluded that movant showed very little commitment to change; that he seemed “unwilling to take what he has learned and put it to work.”

Movant does not contend in Point I that a part of his negotiated plea agreement was that he would be placed- on probation upon completion of the treatment program in which he participated. Rather, he bases his argument that he is entitled to release on statements made by the trial judge at his sentencing.

Movant was asked at the sentencing hearing if he had a plea agreement. He answered that he did. Movant was then shown a written plea agreement and asked if that was his plea agreement. He answered that it was. The trial judge then asked movant, “Okay, this plea agreement says the state has agreed not to file some traffic tickets from the date of this offense. Other than that plea agreement, have you received any kind of promise from anybody that’s made you plead guilty here today?” Movant answered, “No.”

The written plea agreement identifies movant’s criminal charge as “DWI-felony.” The terms of the agreement are handwritten as follows, “State will not file traffic tickets from date of offense.” The handwritten text is followed by printed statements:

I, the undersigned Defendant, state that I have read and fully understand the above Memorandum of Plea Bargain. My attorney has also fully explained it to me. I understand that the Prosecutor is not going to do anything further in my behalf in this case other than as set forth above. I further state that I have discussed this plea bargain with my attorney and have freely, knowingly, and voluntarily agreed to this plea bargain. I have been advised, and I do understand, that the Court is not compelled to accept this plea bargain and is not compelled to follow the recommendation of the Prosecutor, my attorney, or any other person. There has been no force or threats of any type used against me to make me agree to this plea bargain. I am agreeing to this plea bargain of my own free will.
I respectfully request the Court to accept the plea bargain as set forth above.

The document is signed by movant as “Defendant,” his attorney, and the “Prosecutor Making Agreement.”

The trial judge, with commendable patience and thoroughness, advised movant of the other rights he had as a defendant in a criminal case. The judge concluded his dialogue by asking if movant had been threatened or intimidated by anyone or forced to plead guilty. Movant answered that he had not. The trial judge then asked, “In light of everything I’ve said to you, are you telling me your plea is free and voluntary, because you are in fact guilty as charged?” Movant answered, “It is.” The trial judge accepted the guilty plea, ordered a presentence investigation report, and set the date for sentencing.

On the sentencing date, the trial judge called movant’s case and inquired if defendant and his attorney had a copy of the presentence investigation report. Mov-ant’s attorney announced that they did; that they had no corrections. Movant’s attorney then asked the trial judge “for the privilege of-probation or the 120-day-treatment program.” The prosecuting attorney opposed probation. The trial judge imposed sentence of four years’ confinement, then announced that the court would retain jurisdiction over movant under § 559.115; that institutional treatment was requested. The trial judge then explained the proceedings with respect to the request for institutional treatment. Movant was told that he would go to a treatment center; that after he was there “for 90 days or thereabouts,” if he were successful, he would be released back on probation. Movant bases his argument that he was “promised probation” on this colloquy.

As the motion court found, the opportunity for release after 120 days incarceration was not a part of movant’s negotiated plea agreement. Further, the trial judge advised movant that if he were successful, he would receive probation. The report the trial judge received recited that mov-ant would not commit to quit using alcohol. It stated that movant did not consider driving drunk to be a crime and that mov-ant acknowledged that he drove when he was drunk “all the time.” The trial judge concluded that movant’s attitude regarding drunk driving could make his placement on probation an abuse of discretion and directed that a hearing be conducted to resolve that question.

Section 559.115.3 provides, as applicable here, “Upon successful completion of a treatment program the board of probation and parole shall advise the sentencing court of an offender’s probationary release date thirty days prior to release. The court shall release -the offender unless such release constitutes an abuse of discretion.” (Emphasis added.) The trial judge concluded, following the hearing, that release of movant on probation or a statutory release would be an abuse of discretion. The court directed that mov-ant not be released. The motion court’s findings and conclusions that movant was not entitled to probation pursuant to the terms of § 559.115 and that movant’s negotiated plea agreement was not violated by denial of probation were not clearly erroneous. See Rule 24.035(k).

Movant also asserts in Point I that the trial court erred in not permitting him the opportunity to withdraw his plea of guilty following its refusal to grant probation. Arguably, by including multiple claims of error in a single point, Point I is multifarious and, therefore, not in compliance with Rule 84.04(d). See Stroup v. Facet Automotive Filter Co., 919 S.W.2d 273, 277 (Mo.App.1996). This court, nevertheless, considers movant’s argument that he was entitled to withdraw his plea of guilty and concludes it is without merit. Rule 29.07(d) permits a guilty plea to be withdrawn after sentencing only upon a showing that the plea of guilty was induced by fraud, mistake, misapprehension, fear, persuasion, or other exceptional circumstances that constitute manifest injustice. Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002); Latham v. State, 439 S.W.2d 737, 739 (Mo.1969); Rollins v. State, 974 S.W.2d 593, 596 n. 3 (Mo.App.1998). This court finds no manifest injustice. Point I is denied.

Point II alleges that the motion court erred by denying movant’s Rule 24.035 motion without an evidentiary hearing. Movant argues that his motion alleged facts that, if proven, would entitle him to relief. The allegation on which movant bases his argument is that he was told by the sentencing court that he would receive probation if he successfully completed the treatment program.

To be entitled to an evidentiary hearing, a post-conviction movant must: (1) allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.

Weston v. State, 2 S.W.3d 111, 114 (Mo.App.1999). The facts movant alleged were refuted by the files and records from his criminal case. Point II is denied.

Movant complains in Point III that the hearing the sentencing court conducted was not held within the time prescribed by § 559.115; that, therefore, the motion court erred in not concluding, sua sponte, that the sentencing court did not have jurisdiction to deny probation. This claim was not asserted in movant’s Rule 24.035 motion. For a claim to be considered on appeal, it must have been raised in the pleadings that were before the motion court. Carter v. State, 97 S.W.3d 563, 566 (Mo.App.2003). “Claims not properly presented to the motion court cannot be reviewed on appeal, for ‘plain error’ or otherwise.” State v. Kittrell, 779 S.W.2d 652, 657 (Mo.App.1989). Claims not raised in the post-conviction motion are waived. Rule 24.035(d). Point III is denied.

The judgment denying movant’s Rule 24.035 motion is affirmed.

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

      . References to statutes are to RSMo 2000.


author: THOMAS H. NEWTON, Judge.

text:
    Charles L. PLEASANT, Respondent, v. MISSOURI STATE HIGHWAY PATROL, Appellant.
    No. WD 65481.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.

      Theodore A. Bruce, Jefferson City, MO, for appellant.
    Timothy W. Van Ronzelen and Thomas G. Pirmantgen, Co-counsel,. Jefferson City, MO, for respondent. .
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Charles Pleasant, who was terminated from his employment with the Missouri State Highway Patrol (MSHP), appealed his disciplinary action to the. Cole County Circuit Court, which reversed and ordered the MSHP to rescind the discipline, remove mention of the discipline from Mr. Pleasant’s personnel file, and return any salary withheld. The issue on appeal is whether Mr. Pleasant’s failure to report a statement made by a police officer that was suggestive of criminal activity was sufficient to justify the disciplinary action taken against him. We reverse the circuit court’s judgment and uphold Mr. Pleasant’s termination.

In February 2004, a state trooper stopped a car after observing that one of its taillights was out. Mr. Pleasant had asked the state trooper to stop this ear and had told him where it would be at a given time, based on a tip he had received from a-Florissant, Missouri, police officer that the woman driving the car usually had drugs on her. The woman stopped was actually an FBI agent, who was investigating the Florissant police officer (Jim Cox) on suspicion that he was violating the civil rights of the woman (Christine Lambert) the FBI agent was impersonating. The state trooper who made the stop, Trooper Mike Broniec, did not find any drugs after searching the agent’s purse with her consent. She was cited for having a suspended license and told to call someone for a ride. Trooper Broniec and Mr. Pleasant were questioned about the events that led to the traffic stop, but were not charged with any crime. Officer Cox pled guilty to and was convicted of attempting to violate Ms. Lambert’s civil rights, including an attempt to plant drugs on her.

Mr. Pleasant, when terminated, was a nineteen-year MSHP veteran with an unblemished record. He was serving as a Corporal with the Division of Drug and Crime Control and was number one on the promotion list. Mr. Pleasant had received a call from Officer Cox in December 2008 asking for his assistance in a case involving someone Officer Cox knew who was embroiled in a child custody dispute with a girlfriend (Ms. Lambert). Officer Cox, who knew Mr. Pleasant because they occasionally worked together at approved secondary employment with a private security firm, asked for the highway patrol to stop the woman, whom he described as a “meth whore.” Mr. Pleasant, who had no reason to suspect that Officer Cox was a “dirty cop,” said he would do so when he had the time and if he had probable cause. He considered the tip to be nothing out of the ordinary in his line of work; he often received tips about illegal drugs in this manner.

Between December and the following February when the stop occurred, Officer Cox contacted Mr. Pleasant four additional times. During the third call, Officer Cox, again asking for the woman to be stopped, also said, “Can we make sure that she’s got drugs on her when she’s stopped?” Mr. Pleasant later told investigators that the statement was so outlandish that he thought it was a joke. Nonetheless, he responded by saying “We don’t do that shit.” According to Mr. Pleasant, in his nineteen years as a state trooper, no one had ever seriously made such a suggestion to him, although he had heard other officers joke about planting drugs. His supervisor initially denied that he had ever heard such joking, but testified on cross-examination that he actually could not recall whether he may have heard such joking, particularly in training. His supervisor also stated that subordinates were not required to file reports about jokes.

The comment was never repeated, but just before the stop occurred, Officer Cox called Mr. Pleasant again and provided specific details about the woman’s travel route, the car she would be driving, and when she would be driving the route. Mr. Pleasant passed along this information when he asked Trooper Broniec to make the stop and only told him she would have meth on her. When asked about the source of the information, Mr. Pleasant told Trooper Broniec, “a little birdie told me.”

Mr. Pleasant was informed, after a hearing before an MSHP board, that he was being terminated for violating a number of general and special orders. Those orders deal with conduct unbecoming a Patrol employee that brings disrepute on the employee or the Patrol and adversely affects morale; and failing to safeguard the civil rights of all persons, keep immediate supervisors informed, or take appropriate action “if a violation of law is readily apparent or reasonably suspected.” Specifically, the orders that Mr. Pleasant was charged with violating provide:

General Order 26-02-0842, Item I-B-2: Employees will not engage in conduct that is unbecoming an employee of the Patrol. Such conduct includes that which has a tendency to adversely affect, lower, or destroy public respect or confidence in the Patrol, brings the Patrol or any Patrol component or employee into disrepute, brings discredit upon the employee, adversely affects or impairs the operation, efficiency, or morale of the Patrol, or adversely affects the working performance of the employee.
General Order 26-02-0842, Item II-C-1: Members will respect and safeguard the rights of all persons to pursue their lives and lawful occupations free from illegal interference.
General Order 42-01-0701, Item II-A-1: Any member who has knowledge of or reasonably suspects criminal activity or a violation of a state or federal law will take appropriate action if a violation of law is readily apparent or reasonably suspected, i.e., initiate an investigation, arrest the violator, submit the appropriate report, or report the activity to the appropriate official or agency.
General Order 42-01-0701, Item II-A-4: Any member who has knowledge of or reasonably suspects criminal activity or a violation of a state or federal law will take no action in a civil matter with the exception of complying with court orders, ex parte orders, and orders of protection as outlined in General Order 55-02, “Domestic Violence and Orders of Protection.”
Division of Drug and Crime Control Special Order Number 15, Item II-A: Each investigator shall keep their [sic] immediate supervisor informed of all criminal or narcotic investigations in which they are involved.

The board’s recommendation indicates that his most serious transgressions were (i) failing to inform his supervisor about Officer Cox’s reference to planting drugs, and (ii) failing to provide information about the circumstances surrounding Officer Cox’s tip to Trooper Broniec before the stop was made, which failure resulted in Trooper Broniec and Mr. Pleasant becoming suspects in a federal investigation of conspiracy against Ms. Lambert’s rights. According to the board, Mr. Pleasant’s “failure to properly perform his assigned duty brought discredit and disrepute on him and the Patrol, and adversely affected and impaired the operation and morale of the Patrol.” The board’s recommendation was unanimous.

Mr. Pleasant filed an appeal to the circuit court, which reversed, finding that due to the extreme punishment handed down, the board must have concluded that the misconduct was intentional. Because the court was unable to find evidence of Mr. Pleasant’s intent, other than his own statements that he thought Officer Cox’s comment was a joke, it determined that the termination was not based on competent and substantial evidence on the whole record. The MSHP filed this appeal, and Mr. Pleasant claims that the MSHP erred in terminating his employment for not reporting Officer Cox’s statement to his supervisor.

We review administrative factual findings by viewing the evidence in a light most favorable to the agency decision. Gamble v. Hoffman, 732 S.W.2d 890, 892 (Mo. banc 1987) (citations omitted). We are limited to determining whether the decision was supported by substantial and competent evidence; whether it was arbitrary, capricious or unreasonable; or whether the agency action constituted an abuse of discretion. Id. We may not substitute our own judgment for that of the agency, and may not set aside the administrative decision unless it is clearly contrary to the overwhelming weight of the evidence. Id. We defer to the agency’s credibility determinations and, if the evidence supports either of two contrary conclusions, the agency’s decision must prevail. Id. It is only where the agency’s findings are contrary to the determinative undisputed facts that the decision is arbitrary and unreasonable, and we must reverse. Halford v. Mo. State Highway Patrol, 909 S.W.2d 362, 364 (Mo.App. W.D.1995).

The board determined that Mr. Pleasant could not have taken Officer Cox’s comment as a joke because he responded by saying “We don’t do that shit.” We cannot substitute our judgment for that of the board. Gamble, 732 S.W.2d at 892. Officer Cox’s statement, “Can we make sure that she’s got drugs on her when she’s stopped,” may be ambiguous, and it is possible to conclude that Mr. Pleasant did not have actual knowledge or a reasonable suspicion of criminal activity under the circumstances. Nevertheless, because the evidence could support either of two contrary conclusions and because the MSHP’s decision was not contrary to the overwhelming weight of the evidence, we reverse the circuit court and affirm the disciplinary action imposed.

HAROLD L. LOWENSTEIN, P.J., and JOSEPH M. ELLIS, J., concur.

      . This woman was Christine Lambert.

      . There was apparently videotape evidence showing Officer Cox and Ms. Lambert’s boyfriend, one William Stallings, discussing a plan to plant drugs on her. Mr. Stallings was being investigated by the FBI for allegedly spending the proceeds of a bank loan for improvements to his residence rather than on the construction business for which it had been designated. In exchange for a sentence reduction, Mr. Stallings brought Officer Cox’s conduct to the attention of the FBI and cooperated with the agency in its investigation of Officer Cox.

      . Initially, Officer Cox identified the man with the custody problem as a friend, but later told Mr. Pleasant that the man was a business client.

      . Mr. Pleasant provided the information about this exchange to investigators and willingly testified against Officer Cox before a federal grand jury — he had not been subpoenaed to appear nor did he ask for immunity. He further agreed to undergo a polygraph examination as to the truthfulness of his statement that he believed Officer Cox was joking, but the Patrol chose not to administer such examination.

      . That Officer Cox had made a number of calls with the tip; that the tip was made in the context of a custody dispute; and that Officer Cox had specific details about the woman, her car, her schedule, and her route were not unusual in Mr. Pleasant's experience with MSHP's Drug Division.

      . The hearing board was composed of six individuals, including four who were Mr. Pleasant’s peers.

      . Section 43.150 RSMo. (2000), does not require intentional misconduct as a justification for a patrol member's removal. The statute requires removal “only for cause after a formal charge has been filed in writing before or by the superintendent and upon a finding by a majority of a board of six members.” § 43.150.1.

        . See General Order 42-01-0701, Item II-A-1, supra.


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Brian C. HUNT and Jennifer Hunt, Respondents, v. Robert L. EVERETT, Defendant, and Shelter Insurance Company, Appellant.
    No. WD 65340.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.

      James Joseph Cramer, Overland Park, KS, for appellant.
    Robert Schneiders and James Roy Hall, Oak Grove, for respondent.
   PAUL M. SPINDEN, Presiding Judge.

Brian C. Hunt was injured when the car that Robert Everett was driving did not stop for a red light and crashed into Hunt’s car. Everett was delivering newspapers for the Kansas City Star as an independent contractor and had no automobile insurance. Hunt and his wife sued Everett for negligence and sued the Star for vicarious liability and for independent negligence in hiring Everett. The parties stipulated that Everett and the Star were joint tortfeasors and that the Hunts’ damages exceeded $450,000. The Hunts settled them claim against the Star for $840,000, and the circuit court entered judgment on the Star’s motion for partial summary judgment, saying, “The Kansas City Star has no liability or responsibility for the alleged negligence of Robert Everett.”

The Hunts impleaded Shelter Insurance Company as a defendant in the claim pending against Everett. The Hunts had three insurance policies issued by Shelter: two, which included uninsured motorist limits of $25,000, and a third, which included an uninsured motorist limit of $50,000 per person. The parties agreed that the policies could be stacked and that $100,000 in coverage was available. The policies, however, each had an offset provision that said, “Any amount payable under the terms of this Coverage will be reduced by any amount paid or payable for the same damages to or for the insured ... by or for any person or organization who is or may be held legally liable for the bodily injury to such insured.” The parties stipulated that the $840,000 settlement with the Star was an offset. They, however, disputed whether or not that amount should be subtracted from the Hunts’ total damages of $450,000 or from Shelter’s maximum liability of $100,000.

After a bench trial in which Everett did not appear, the circuit court entered judgment against Shelter and ordered it to pay $100,000. The circuit court found that the settlement amount of $340,000 should be offset against the Hunts’ total damages because of the policies’ language and Missouri’s public policy concerning uninsured motorist coverage.

In appealing this judgment, Shelter presents three points. First, it argues that the circuit court erred in its reading of the policy language. Second, it argues that the circuit court erred in finding that insurers cannot reduce uninsured motorist coverage by amounts a joint tortfeasor pays to the insured. Third, it argues alternatively that the Hunts’ recovery should be limited to $75,000.

In reviewing a court-tried case, we affirm the circuit court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence or erroneously declares or applies the law. American Standard Insurance Company of Wisconsin v. Bracht, 103 S.W.3d 281, 286 (Mo.App.2003). “When a case is tried on stipulated facts ..., the only issue on appeal is whether the court drew the proper legal conclusions from those facts.” Tapley v. Shelter Insurance Company, 91 S.W.3d 755, 757 (Mo.App.2002).

Shelter’s policy said:

PART IV — UNINSURED MOTORISTS
COVERAGE E — UNINSURED MOTORISTS (DAMAGES FOR BODILY INJURY)
We will pay damages for bodily injury sustained by an insured which such insured ... is legally entitled to recover from the owner or operator of an uninsured motor vehicle.
LIMITS OF LIABILITY
(2) Any amount payable under the terms of this Coverage will be reduced by any amount paid or payable for the same damages to or for an insured,
(a) by or for any person or organization who is or may be held legally liable for the bodily injury to such insured[J

This case turns on the meaning of “[a]ny amount payable under the terms of this Coverage.” The courts are to enforce insurance contracts as written unless an ambiguity requires the court to impose various rules of interpretation. American Family Mutual Insurance Company v. Ward, 789 S.W.2d 791, 795 (Mo. banc 1990). An ambiguity arises when contract language is duplicitous, indistinct, or uncertain, leaving its interpretation open to differing reasonable constructions. Krombach v. Mayflower Insurance Company, Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). When an insurance contract’s language is ambiguous, a rule of interpretation is that we apply a meaning that would ordinarily be understood by the insured and, because the insurer typically is the party responsible for the ambiguity as the contract’s drafter, we construe ambiguous provisions in an insurance policy against the insurer. Id.

Shelter’s policy is ambiguous. Part IV of the policy says that Shelter “will pay damages for bodily injury sustained by an insured which such insured ... is legally entitled to recover from the owner or operator of an uninsured motor vehicle,” but, further down in a paragraph limiting Shelter’s liability, the , policy refers to “amount[s] payable under the terms of this Coverage.” This makes unclear whether “amount payable” refers to the insured’s total damages or to the maximum amount of uninsured motorists coverage.

The Supreme Court reached the same conclusion with markedly similar policy language in Krombach. The policy in that case said:

Part 6: UNINSURED (AND UNDER-INSURED) MOTORIST
B. UNINSURED MOTORIST COVERAGE
We will pay damages which a Covered Person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
(a) sustained by
1. covered person; and
(b) caused by an accident.
D. MAXIMUM PAYMENTS UNDER YOUR UNINSURED MOTORIST COVERAGE
Any amounts payable under Part 6 shall be reduced by all sums:
(a) paid because of bodily injury by or on behalf of someone who may be liable.

The Supreme Court could not determine whether “amounts payable” referred to the insured’s total damages under Subpart B or to the insured’s damages up to the maximum amount of coverage under Sub-part D of Part 6. Id. at 211. Shelter’s policy suffers the same ambiguity.

Shelter argues that “amount payable” is not ambiguous because it is followed by “under the terms of this Coverage.” Shelter argues that, because “this Coverage” refers clearly to uninsured motorists coverage under Part IV, “amount payable” unambiguously means uninsured motorists benefits.

Even if we were to adopt this position, it would not cure the ambiguity. Part IV discusses uninsured motorists benefits, but it also mentions the insured’s total damages: Shelter must pay “damages for bodily injury sustained by an insured which such insured ... is legally entitled to recover.” “[Ajmount payable,” therefore, could either be the amount owing under Part IV or the total damages sustained by the Hunts.

Indeed, the Supreme Court declared in Krombach that “amounts payable” was ambiguous despite its being followed by a specific, unambiguous reference to a precise section of the insurance policy. Id. As in Krombach, we have a precise reference to a specific policy section, but the ambiguity remains, and, as the Krombach court noted, “Had [the insurer] intended to reduce the coverage limits by any amount paid by a tortfeasor or his insurer, [the insurer] could have so stated in plain and unequivocal terms.” Id. (citing Rodriguez v. General Accident Insurance Company of America, 808 S.W.2d 379, 381 (Mo. banc 1991)). The offset provision in Rodriguez said, “[T]he limit of liability shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.” 808 S.W.2d at 381. Shelter’s offset provision is not so clear.

Other cases involving similar language have reached the opposite conclusion. E.g., Keating v. Gavrilovici, 861 S.W.2d 206, 207-08 (Mo.App.1993) (“[a]ny amounts otherwise payable for damages under this coverage” is unambiguous). But these cases seem to conflict with Krombach. Thus, given the closeness of the language in Shelter’s policy with that in Krombach, we persist in our conclusion that the policy was ambiguous.

The circuit court and the parties discussed public policy, but we do not see how it is pertinent to determining whether or not Shelter’s policy is ambiguous. In light of our determination that the policy is ambiguous, we must construe it against Shelter as the drafter. Krombach, 827 S.W.2d at 210. Thus, we need not examine public policy issues surrounding under-insured motorists coverage.

In its final point, Shelter argues that, if we find that the circuit court did not err in finding that Shelter’s policy was ambiguous, we should find that the Hunts were entitled to $75,000 rather than $100,000. Having already determined that the offset provision was ambiguous and, thus, properly construed against Shelter, we need not address this argument. The $340,000 settlement was properly deducted from the Hunts’ total damages.

The circuit court drew appropriate conclusions from the stipulated facts. We, therefore, affirm the circuit court’s judgment.

VICTOR HOWARD and RONALD R. HOLLIGER, Judges, concur.

      . The emphasis was in the original.


author: ROBERT G. ULRICH, Judge.

text:
    STATE of Missouri, Respondent, v. Marlon FIELDS, Appellant.
    No. WD 64304.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.

      William J. Swift, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Judge.

Marlon Fields appeals his conviction following jury trial for trafficking in the second degree, section 195.223, RSMo Cum. Supp.2004, and sentence of sixteen years imprisonment. He challenges the sufficiency of the evidence to support the conviction and the trial court’s failure to grant a mistrial after the introduction of what he claims was evidence of other uncharged crimes. The judgment of conviction is affirmed.

Facts

Viewed in the light most favorable to the verdict, the facts were as follows. At approximately 2:00 a.m. on May 25, 2003, Marlon Fields picked up his girlfriend, Shayna Vanvacter, at her house. Before they left Ms. Vanvacter’s house, Mr. Fields got out of his car and had a conversation about drugs with two women in a green car. As he got out of his car, Ms. Vanvac-ter saw a bag of crack cocaine on the front bench seat right beside Mr. Fields. Before Mr. Fields got back into his car, one of the women said, “You just missed out on a hundred, a hundred and fifty dollars.”

Mr. Fields and Ms. Vanvacter then drove to Roosevelt Noel and Laticia Irvin’s home. They exited the car, and Mr. Noel asked Mr. Fields if he had a “stick” — a cigarette to dip in PCP. Shortly thereafter, Mr. Fields other girlfriend, Danyelle Da-nyluck, arrived at Mr. Noel’s house. Ms. Danyluck argued with Mr. Fields and Ms. Vanvacter. During the argument, Ms. Da-nyluck got in Mr. Fields’ car to search for her keys and a garage door opener. Ms. Danyluck eventually left. Mr. Fields took a call on his cell phone and then told Mr. Noel that he was going to take Ms. Van-vacter home and that he had to make a run, which Ms. Vanvacter understood to mean something involving drugs.

Meanwhile, Ms. Irvin’s cousin, Alison Stiles, who was at Ms. Irvin’s home and who did not have a good relationship with Mr. Fields, called the police and reported that Mr. Fields had tried to kick in the door and commit burglary. The police responded to the call at approximately 3:00 a.m. Officer Joshua Howery was the first to arrive at the scene, and as he drove up, he saw Mr. Fields standing next to his vehicle. Officer Howery knew that Mr. Fields was the registered owner of the car. Mr. Fields looked at Officer Howery, turned away, put his hands in his pockets, and started to walk away. Officer Howery parked, exited his vehicle, and said, “Stop, police.” Mr. Fields began to run, and Officer Howery chased him. After chasing Mr. Fields for approximately twenty-five feet, Officer Howery attempted to tackle him. A struggle ensued, and another officer came to Officer Bowery’s aid. Both officers wrestled with Mr. Fields for about four or five minutes. They tried to use a “wrist lock” and pepper spray, but both were ineffectual. Eventually, the officers were able to handcuff and subdue Mr. Fields. Mr. Fields was transported from the scene.

The officers then interviewed people at the scene. After taking several statements, Officer Howery and another officer, Officer Kelley, examined the area around Mr. Fields’ car. They found Ms. Vanvac-ter sitting in the passenger seat, and as Officer Kelley shined his flashlight through the window, he saw what he believed to be a bag of crack cocaine on the front seat. The bag was sitting one to two inches from Ms. Vanvacter’s left hip. Officer Kelley told Officer Howery what he saw, and Ms. Vanvacter immediately said, “That’s not mine.” Officer- Kelley then retrieved the bag from the seat. Subsequent testing of the substance, which weighed 21.53 grams, revealed that it was cocaine base or crack cocaine with a street value of approximately $2,100.

Mr. Fields was subsequently charged by information with trafficking in the second degree, section 195.223, RSMo Cum.Supp. 2004, and resisting arrest, section 575.150, RSMo Cum.Supp.2004. Mr. Fields was convicted of trafficking in the second degree offense and acquitted of resisting arrest. This appeal followed.

Sufficiency of the Evidence

In his first point on appeal, Mr. Fields claims that insufficient evidence was presented to support his conviction of trafficking in the second degree. He claims that the State failed to prove beyond a reasonable doubt that he possessed or controlled the crack cocaine that was found in his car one hour after he was arrested and taken to jail.

Review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining, whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty, beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). The evidence and all reasonable inferences drawn from the evidence are viewed in the light most favorable to the jury’s verdict, and any contrary evidence and inferences are disregarded. Id. Great deference is given to the trier of fact. Id.

A person commits the class A felony crime of trafficking in the second degree if he possesses more than six grams of a mixture or substance containing a cocaine base. § 195.223.3(2), RSMo Cum. Supp.2004. To establish possession of a controlled substance, the State must show (1) conscious and intentional possession of the substance, either actual or constructive, and (2) awareness of the presence and nature of the substance. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Both possession and knowledge may be proved by circumstantial evidence. Id.

A person has actual possession of a controlled substance if he has the substance on his person or within his easy reach and convenient control. § 195.010(34), RSMo Cum.Supp.2004; State v. Chavez, 128 S.W.3d 569, 574 (Mo.App. W.D.2004)(quoting State v. Rollett, 80 S.W.3d 514, 521 (Mo.App. W.D.2002)). A person has constructive possession of a controlled substance if he has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. § 195.010(34), RSMo Cum.Supp.2004; Chavez, 128 S.W.3d at 574 (quoting Rollett, 80 S.W.3d at 521).

A person who has exclusive control of property is deemed to have possession and control of any substance found on the property. Chavez, 128 S.W.3d at 574 (quoting Rollett, 80 S.W.3d at 521). The exclusive possession of premises rule has been modified, however, where automobiles are involved because of “the reality of the contemporary use of the automobile as a means of social accommodation.” Id. at 574 n. 3 (quoting State v. Johnson, 81 S.W.3d 212, 215 (Mo.App. S.D.2002)). In the case of automobiles, the full effect of the exclusive possession rule is tempered by evidence of equal access by persons, other than the owner, to the vehicle. Id. (quoting Johnson, 81 S.W.3d at 215). Thus, in cases involving joint control of an automobile, a person is deemed to have possession and control over a controlled substance found in the automobile only where sufficient additional evidence connects him to the controlled substance. Id. at 574. Even if one is the owner or renter of a vehicle, constructive possession will not be inferred in circumstances where others have had equal access to the vehicle unless there is evidence of additional incriminating circumstances implicating the person. Johnson, 81 S.W.3d at 216. Such additional evidence includes the presence of a large quantity of the substance at the scene where the person is arrested; routine access to an area where the controlled substance is found; nervousness exhibited during the search of the area; the controlled substance in plain view; commingling of the controlled substance with personal belongings; and the conduct and statements made by the person. Chavez, 128 S.W.3d at 574.

In this case, the crack cocaine was found in Mr. Fields’ car approximately one hour after he was transported from the scene by police. Because Ms. Vanvacter and Ms. Danyluck had been in Mi’. Fields’ car and, thus, had equal access to the car, Mr. Fields’ ownership of the car alone was not enough to create an inference of control over the substance. See Johnson, 81 S.W.3d at 216. Instead, additional incriminating circumstances implicating Mr. Fields was required. See Id. Additional evidence connecting Mr. Fields to the crack cocaine was presented in this ease.

First, a large quantity of the substance was found by police officers in plain view on the front bench seat of Mr. Fields’ automobile. It weighed 21.53 grams with a street value of approximately $2,100. An investigator with the Buchanan County Strike Force testified that it was “a dealer or a supplier amount of crack cocaine.”

Second, both Ms. Vanvacter and Ms. Danyluck testified that the bag of crack cocaine found by police was not theirs. Ms. Danyluck further testified that she did not put the substance in Mr. Fields’ car when she was searching for her keys.

Next, after Ms. Vanvacter was arrested at the scene and transported to juvenile detention, she told investigators that she had seen Mr. Fields with the crack cocaine earlier at her house when he talked to the two women about drugs. Specifically, she said, “When he got out [of his car], I saw the bag of crack in his seat. It was right beside him.” Because Ms. Vanvacter recanted the statement at trial telling the jury that she did not see the crack cocaine before it was found by police, Mr. Fields claims that the Ms. Vanvacter’s prior inconsistent statement cannot be used to support the conviction. Citing State v. Pierce, 906 S.W.2d 729, 734-35 (Mo.App. W.D.1995), Mr. Fields argues that Ms. Vanvacter’s recanted statement was insufficient to prove that the drugs belonged to him because no evidence to corroborate the statement was presented.

Section 491.074, RSMo Cum.Supp.2004, provides that in a criminal trial, a witness’ prior inconsistent statement is admissible as substantive evidence and that the party offering the statement may argue the truth of the statement. In Pierce, the defendant was convicted of statutory rape based on the prior inconsistent statement of the victim that she and the defendant had engaged in sexual intercourse. 906 S.W.2d at 733. At trial, the victim recanted the statement denying the essential element of the crime, intercourse. Id. This court held that although the victim’s prior statement was admissible under section 491.074, the conviction could not be based solely upon that inconsistent statement without corroboration. Id. at 734-35.

Unlike in Pierce, Ms. Vanvacter’s prior statement that she saw Mr. Fields with the crack cocaine in the.car seat beside him was not the only evidence presented to prove that Mr. Fields’ possessed or controlled the crack cocaine. As discussed, the substance was found in plain view on the front seat of Mr. Fields’ car, and both women who had access to the car that night testified that the substance was not theirs. Furthermore, evidence was presented that Mr. Fields was involved in drug activity and distribution. Before driving to Mr. Noel’s house, Mr. Fields had a conversation about drugs outside Ms. Vanvacter’s house with two women in a green car. One of the women said, “You just missed out on a hundred, a hundred and fifty dollars.” At Mr. Noel’s house, Mr. Noel asked Mr. Fields if he had a “stick” — a cigarette to dip in POP — and later told him that he had to make a run. Finally, Mr. Fields’ conduct showed a.consciousness of guilt connecting him with the crack cocaine. When Mr. Fields’ first saw Officer Howery, the first police officer to arrive at the scene, he turned away, put his hands in his pockets, and started to walk away. When Officer Howery said, “Stop, police,” Mr. Fields began to run. He then struggled -with officers for four or five minutes after they caught him. See State v. McKelvey, 129 S.W.3d 456, 459 (Mo.App. S.D.2004)(evidence of flight from police can be used to show consciousness of guilt).

The evidence presented in this case corroborated Ms. Vanvacter’s prior inconsistent statement that she saw Mr, Fields with the baggie of crack cocaine approximately one hour before he was arrested. Her statement, therefore, constituted substantive evidence. Furthermore, the evidence, including Ms. Vanvacter’s statement, was sufficient for a reasonable juror to find that Mr. Fields possessed and was aware of the presence and nature of the crack cocaine. The evidence was, therefore, sufficient to support the conviction for trafficking in the second degree. The point is denied.

Evidence of Other Crimes

In his second point on appeal, Mr. Fields claims that the trial court erred in failing to grant a mistrial after the introduction of what he claims was evidence of other uncharged crimes. During the prosecutor’s examination of Ms. Vanvacter, the following exchange occurred:

Q: Ms. Vanvacter, what I’m showing you has been marked State’s Exhibit Number 1. Have you seen State’s Exhibit Number 1 before?
A: Yes.
Q: And when was that?
A: Marlon had it at my house before.
Q: Okay.

State’s Exhibit Number 1 had been identified earlier in the trial by Officer Kelley as the baggie of crack cocaine found in Mr. Fields’ car. Fearing the Ms. Vanvacter had testified that she had seen Mr. Fields with “crack cocaine before,” the prosecutor asked to approach the bench and proposed that she be allowed to ask Ms. Vanvacter to clarify her statement. Defense counsel then asserted the Ms. Vanvacter had offered evidence of another crime. At defense counsel’s request, the prosecutor asked Ms. Vanvacter outside the presence of the jury to clarify her testimony:

Q: [Ms. Vanvacter], when you said you’ve seen State’s Exhibit 1 before [Mr. Fields] brought it to your house, was that the same day, or are you talking about other times before?
A: Another time.
Q: Okay. When was that other time? How long ago or how close to May 25th?
A: About two months.
Q: Two months before?
A: Yeah.

In light of this testimony, defense counsel requested that the jury be instructed to disregard Ms. Vanvacter’s testimony and also a mistrial. Defense counsel argued, “I don’t see any way my client can get a fair trial with the jury having heard that she’d seen him in possession of that very exhibit at her home.” The trial court reasoned, “[I]f the foundation is that she’d seen him with that very exhibit, why wouldn’t that be admissible anyway?” The court then stated, “[I]f the State doesn’t want to pursue it further, I will instruct the jury to disregard that answer and there’ll be no further mention of it.” The prosecutor agreed, the jury was instructed to disregard, and the trial court denied the defense’s request for a mistrial.

A mistrial is a “drastic remedy to be exercised only in those extraordinary circumstances in which the prejudice to the defendant cannot otherwise be removed.” State v. Goff, 129 S.W.3d 857, 866 (Mo. banc 2004)(quoting State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995)). The decision is left to the discretion of the trial court because the trial court is in the best position to determine whether the incident had a prejudicial effect on the jury. Id. An appellate court looks only to whether the trial court, as a matter of law, abused its discretion in refusing to declare a mistrial. Id.

Generally, evidence of uncharged crimes, wrongs, or acts is not admissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Barton, 998 S.W.2d 19, 28 (Mo. banc 1999). In this case, Ms. Vanvacter’s testimony that she had seen Mr. Fields with State’s Exhibit 1, the bag of crack cocaine found in Mr. Fields’ car, at her house before was not evidence of other crimes. Ms. Vanvacter specifically testified, even in the voir dire questioning outside the presence of the jury, that she saw Mr. Fields with the same bag of crack cocaine that was found on the morning of his arrest at her house on a previous occasion. Such evidence was not evidence of another crime but evidence that legitimately tended to prove Mr. Fields’ guilt of the charged offense, which alleged that Mr. Fields possessed State’s Exhibit 1, the bag of crack discovered by police officers. The trial court, therefore, did not abuse its discretion in refusing to grant a mistrial. Mr. Fields’ second point is denied.

The judgment of conviction is affirmed.

HOLLIGER, P.J. and ELLIS, J. concur.


author: PER CURIAM.

text:
    DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Ricky E. RAPERT, Respondent.
    No. WD 65483.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    David F. Barrett, Jefferson City, MO, for Appellant.
    John H. Goffstein, St. Louis, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., THOMAS H. NEWTON, and LISA WHITE HARDWICK, JJ.
   ORDER

PER CURIAM.

The Director of the Missouri Department of Public Safety (Director) appeals the Administrative Hearing Commission’s (AHC) decision not to discipline the peace officer license of Mr. Ricky E. Rapert.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Renae SHERKAT, Respondent, v. Ali SHERKAT, Appellant.
    No. WD 65350.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    Ali Sherkat, Kansas City, MO, appellant acting pro se.
    Renae Sherkat, Shawnee, KS, respondent acting pro se.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Ali Sherkat files this pro se appeal from a judgment of contempt entered by the circuit court; he collaterally challenges the validity of the dissolution decree on which the judgment is based, claiming that he was not properly served with the dissolution petition in January 2002. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    John P. HELVEY, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
    No. WD 65291.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    John P. Helvey, Tipton, MO, Appellant Acting Pro Se.
    Diane Peters, Jefferson City, MO, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. John P. Helvey files this pro se appeal from a circuit court judgment sustaining the State’s motion to dismiss his claims of constitutional violations for lack of subject matter jurisdiction. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Larry Donnell CAIN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64800.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Larry Cain appeals from the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no prece-dential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Marianne Roesler FRIEDLUND, Appellant-Respondent, v. Scott Carl FRIEDLUND, Respondent-Appellant.
    Nos. WD 64639, WD 64696.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    Michael W. Walker, Kansas City, MO, for appellant-respondent.
    Bradley P. Grill, Kansas City, MO, for respondent-appellant.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Scott Friedlund (“Father”) and Marianne Friedlund (“Mother”) both appeal a September 1, 2004 judgment of the Circuit Court of Platte County modifying a prior decree of dissolution. The judgment authorized Mother to relocate their three minor children from the Kansas City area to the Chicago area to live with her there, approved Mother’s proposals for modified visitation and travel arrangements, and ordered Mother to pay the childrens’ airfare for visitation-related plane trips to and from Kansas City and Chicago. The trial court also reduced Father’s monthly child support obligation from $1,400 to $696 and eliminated Father’s previous obligation to pay a portion of the tuition/tithing costs for the childrens’ education at a Catholic parochial school.

In his sole point relied on, Father argues that the trial court erred in denying his motion, pursuant to section 452.377, RSMo 2000, to prevent Mother from relocating the children to Chicago, claiming that there was no substantial evidence to support the trial court’s determination that the relocation of the three minor children with Mother to the Chicago area was in their best interests. He also lodges various complaints about the form and language of the court’s judgment permitting relocation.

In her cross-appeal, Mother claims, in her first point, that the trial court erred in reducing Father’s monthly child support obligation because the issue of child support was neither raised in the pleadings nor tried by the express or implied consent of the parties. In her second point, Mother contends that even if the issue of child support was tried by consent, the trial court erred in failing to make an express finding as to whether the Presumed Correct Child Support Amount (PCCSA) was unjust or inappropriate before ordering her to pay the entirety of the childrens’ recurring visitation-related transportation expenses to and from Kansas City and Chicago.

After thoroughly reviewing the record, we conclude that the trial court’s judgment was supported by substantial evidence and was not against the weight of the evidence, and that no error of law appears. While an extended opinion would serve no jurisprudential purpose, a memorandum explaining our reasoning has been provided to the parties. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Joyce Elaine STANLEY, Appellant, v. Bernard Walter STANLEY, Respondent.
    No. WD 63924.
    Missouri Court of Appeals, Western District.
    Jan. 10, 2006.
    James W. Fletcher, Kansas City, MO, for appellant.
    Michael C. McIntosh, Independence, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Joyce Stanley appeals the judgment of the trial court dissolving her marriage to Bernard Stanley. Ms. Stanley has six points on appeal. She contends that the trial court: (1) lacked jurisdiction to amend the judgment and change the terms of the maintenance awarded to Ms. Stanley; (2) erred in changing Ms. Stanley’s maintenance from $1000 per month for thirty-six months to $400 per month for an unlimited duration; (3) erred in ordering the marital home and marital property sold rather than divided; (4) erred by failing to divide Mr. Stanley’s pension plan between the parties; (5) erred by failing to divide Mr. Stanley’s personal savings plan between the parties; and (6) erred by refusing to order Mr. Stanley to pay Ms. Stanley’s attorney fees. The judgment is affirmed. Rule 84.16(b).