author: PHILLIP R. GARRISON, J.

text:
    In re the MARRIAGE OF Jennifer L. WILSON and Joseph P. Wilson. Jennifer L. Wilson, Petitioner-Appellant, v. Joseph P. Wilson, Respondent-Respondent.
    No. 26469.
    Missouri Court of Appeals, Southern District. Division Two.
    Nov. 3, 2005.

      James R. Royce, McDonald Hosmer King & Royce, P.C., Springfield, for Appellant.
    Christena Silvey Coleman, Garrett & Silvey, West Plains, for Respondent.
   PHILLIP R. GARRISON, J.

Jennifer L. Wilson (“Mother”) appeals from a judgment modifying an earlier decree that dissolved her marriage to Joseph P. Wilson (“Father”). On this appeal, she challenges the portions of the judgment modifying the custodial arrangements for their minor son, K.A.W. (“minor child”), and reducing Father’s child support obligations.

The parties had two children; the minor child and C.L.W. (“daughter”). In the dissolution decree, entered on May 16, 2001, the trial court awarded both parties joint legal custody of the children with primary physical custody awarded to Mother, subject to reasonable visitation awarded to Father. The court did not set a specific visitation schedule because of the parties’ agreement that they could work together to ensure that Father received reasonable visitation, but it did provide that he was to have thirty days of continuous visitation. The trial court set Father’s child support obligation at $787 per month and also incorporated the parties’ agreement that each of them would be responsible for fifty percent of any future college expenses incurred by the two children. The decree defined “costs” as tuition, fees, books, dormitory costs for room and board, laboratory fees, parking fees, and excluded from this calculation room and board while the child was residing with either parent. The maximum expense each parent was to be responsible for in any given year was to be determined by the expense for such items “for an in-State student at the University of Missouri-Columbia” for that same year.

Father filed a Motion to Modify Decree of Dissolution as to Child Custody, Visitation, and Child Support on November 7, 2002. Trial of that motion resulted in the judgment which is the subject of this appeal. In that judgment the court awarded Father joint legal and physical custody of the minor child, subject to a specific visitation schedule described below. The judgment also decreased the amount of child support Father was obligated to pay from $787 to $433, ordered that the child support was for the minor child only, and provided that he was still obligated to pay one-half of daughter’s college expenses. At the time of this judgment, daughter was eighteen years old and enrolled in the pre-med program at the University of Missouri-Kansas City. The trial court reasoned that since Father was paying half of daughter’s college expenses he should only be responsible for child support necessary for the minor child. This appeal followed.

Mother raises three points of error on this appeal. The first two necessitate reversal and remand. For reasons discussed below, we do not consider the third.

In Point I, Mother contends that the trial court erred by failing to provide required written findings in its Judgment and Decree of Modification. She argues that the trial court is required to include a written finding in the judgment based on the public policy set out in Section 452.375.4 and the factors listed in Section 452.375.2(1) to (8). By her reference to Speer v. Colon, 155 S.W.3d 60 (Mo. banc 2005), it is apparent that she bases this position on the requirements of Section 452.375.6. That section provides, in pertinent part:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detail-mg the specific relevant factors that made a particular arrangement in the best interest of the child.

In the instant case, the parties were not in agreement about a custodial arrangement. Father’s motion to modify alleged that it would be in the best interest of the children for him to have a specific schedule of custody and visitation in accordance with an attached proposed parenting plan. Mother’s answer denied that allegation and further alleged that Father’s proposed parenting plan was unworkable and not in the best interest of the children.

In an effort to establish that the parties were in basic agreement about custody, Mother contends that at trial she agreed to part of the custodial arrangement requested by Father. The record reveals, however, that Mother said she was not opposed to the trial court entering a specific schedule of visitation whereby Father would have the minor child every other weekend; that she wanted the court to “look at the amount of visitation he’s asking for”; and said that she was agreeable to “some” time in the summer. Under these circumstances, the parties were not in agreement about a custodial arrangement, and Section 452.375.6 is applicable. Accordingly, the trial court was required to include written findings mandated by that statute.

The judgment provided that “it is in the best interest of the minor children that the parties continue to share joint legal and physical custody of the minor child with the [Father] having have [sic] a specific schedule of temporary custody and visitation.” It then provided that Father “shall have the periods of contact/visitation as set forth in the Judicial Parenting Plan attached hereto and incorporated herein as Exhibit ‘A’ which the Court finds to be in the best interests of the minor children.” The parenting plan adopted by the court applied only to the minor child and not to the daughter. It ordered the parties to cooperate in order that the minor child will have frequent, continuing and meaningful contact with both parents, and provided for specific visitation by Father.

While the trial court’s judgment concluded that the provisions of the parenting plan were in the minor child’s best interest, it did not explain what factors made it so. Where, as here, the parties do not agree to a custodial arrangement, the trial court is required by Section 452.357.6 to include in its judgment a written finding based on the public policy in Section 452.375.4 and the factors listed in Section 452.375.2(1) to (8) detailing the specific relevant factors that made the chosen arrangement in the best interest of the child. Speer, 155 S.W.3d at 61-62. See also Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). Section 452.375.2 provides that the court shall determine custody in accordance with the best interests of the child and shall consider all relevant factors including eight that are specifically enumerated in that section. The court is not required to make a written finding on all of the factors listed in that section, “but the relevant factors must be detailed.” Speer, 155 S.W.3d at 62.

In his brief, Father does not dispute that the judgment lacked the findings required by Section 452.375.6, including Section 452.375.2. Rather, he argues that “[b]ecause no modification of custody was requested nor granted, the judgment of modification was not required to include written findings factors [sic] listed in Section 452.375 under this Court’s decision in Baker and the trial court’s decision must be affirmed.” In support, he relies on Baker v. Welborn, 77 S.W.3d 711 (Mo.App. S.D.2002), in which this court held that a change of custody occurs if the time a parent has a child under his or her supervision is altered significantly or drastically, but lesser alterations are simply considered changes to visitation. Id. at 718. This court held that even if the judicial determination is one of visitation rather than custody, the Section 452.375.2 factors are appropriately considered in determining whether changes should be made. Id. at 720. In either case, there is a required finding that the change is in the best interests of the child.

Buchanan, was decided after Baker. In Buchanan, one of the issues was whether the trial court was required to make written findings pursuant to Section 452.375.6, and, by reason thereof, Section 452.375.2. 167 S.W.3d at 698-99. In that modification case, the father argued that the trial court was required to make those findings because the parties disagreed about the child’s residence and a parenting plan. Id. at 701. The mother, on the other hand, argued that since the parties had agreed on a joint custody designation, no written findings were required. Id. The Supreme Court of Missouri held:

Although the parties had agreed that father and mother should have joint custody, they did not agree on the residence address for the child or on a parenting plan. While these may be sub-issues of custody, they were contested and required the court’s resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 4,52.375.2 are required, (emphasis added).

Id. at 702. See also Clary v. Orellana, 168 S.W.3d 106 (Mo.App.S.D.2005). The underlying rationale of Father’s contention that the trial court was not required to make the statutory findings is, therefore, incorrect. The judgment relating to custody must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

Mother also contends that the trial court erred in not adopting a parenting plan containing provisions relating to daughter. Father’s motion to modify alleged that it would be in the best interests of the “children” for there to be a specific schedule for his contacts with “the minor children” in accordance with the parenting plan he proposed. That parenting plan dealt with both children. The modification judgment provided, inter alia, that the original decree “shall be modified and [Father] shall have the periods of contact/visitation as set forth in the Judicial Parenting Plan attached hereto ....” That parenting plan specifically stated that it applied only to the minor child.

In contending that the failure to include daughter in the provisions of the parenting plan, also requires a reversal, Mother relies on Sections 452.375.9 and 452.310.7, In re Marriage of Parmenter, 81 S.W.3d 234 (Mo.App. S.D.2002), and In re Marriage of Peterson, 39 S.W.3d 580 (Mo.App. S.D.2001). Section 452.375.9 requires that any judgment providing for custody shall have a specific written parenting plan setting forth the terms specified in Section 452.310.7. Section 452.310.7 specifies the minimum subject matters that must be contained in a parenting plan. In Par-menter, a dissolution decree was reversed, in part, because the judgment failed to include all of the Section 452.310.7 requirements for a parenting plan. 81 S.W.3d at 237. In Peterson, a judgment of modification was reversed because the parenting plan incorporated into the judgment was not attached to the judgment or included in the record on appeal. 39 S.W.3d at 852.

None of these authorities stand for the proposition, implicitly espoused by Mother, that a judgment modifying a dissolution decree as to custody of more than one child must contain a parenting plan covering both children if custody is changed as to only one. Here, the judgment specified that the dissolution decree was being modified as set forth in the parenting plan. That plan did not change anything with reference to the daughter. Obviously, the trial court did not find it necessary to include the daughter in the parenting plan under these circumstances. Even if the case was reversed on this basis, Section 452.310.10 now in effect would not require the relief sought by Mother. Mother has not demonstrated that the trial court erred in this regard.

In another point relied on, Mother contends that the trial court erred in modifying Father’s support obligation for the minor children because it was against the weight of the evidence and constituted a misapplication of the law. She argues that there was no showing of a substantial and continuing change of circumstances, no findings as to the presumed correct amount of child support, and no finding of a factual basis to conclude that the presumed correct child support amount was unjust and inappropriate.

In the decree dissolving the marriage, the trial court found that the provisions of the Marital Settlement Agreement and Proposed Parenting Plan agreed upon by the parties was in compliance with Rule 88.01, Missouri Rules of Civil Procedure. (2001), and Form 14. Father, who was then in the military, was ordered to pay $787 per month for the support of the minor children, however, should either child become emancipated, his support obligation would be $557 per month. The parenting plan adopted as part of that judgment stated that the child support amount had been determined by a Form 14 using, inter alia, the monthly gross income of $3,822 for Father and $1,248 for Mother. The parenting plan also called for each party to pay one-half of the costs of certain types of expenses for the children’s post-secondary education. In his motion to modify, Father’s allegations included, inter alia, the fact that he was no longer in the military; he had been unable to find full time employment other than substitute teaching paying $60 per day; and from his military retirement of $1,401 per month, $700.50 was being sent directly to Mother with him receiving the other $700.50.

At the time of the hearing on the motion to modify, Father testified that he was then employed as a maintenance supervisor earning an approximate gross monthly income of $3,038, and the court found that he receives a monthly military pension of $1,408 of which Mother receives one-half pursuant to the earlier decree. Therefore the court determined that his monthly gross income is $3,737 versus his stipulated monthly income of $3,882 at the time of the original decree. In its judgment of modification, the trial court noted that pursuant to Section 452.325.2 it was not bound by the parties’ agreement as to child support; found “there is a basis for a modification of. [Father’s] child support obligation pursuant to [Section 452.325]”; and it attributed income to Mother of $10 per hour which was what she had received most recently working as a dental assistant before voluntarily terminating that employment. The court noted Mother’s testimony that she was not working because the minor child had suffered brain damage in an accident requiring her to assist him with this homework, found that testimony was not credible, and found that the reason she was unemployed was because she and her husband were in bankruptcy and any income she would receive would be used by the bankruptcy trustee to reduce her liabilities to creditors. The court found that the income attributable to Mother was $2,440 per month ($1,733 imputed to her and $707 received from Father’s military pension), or $1,190 more than when the original decree was entered. It also found that the annual cost of daughter’s pre-med college program was $5,555.98 for each of the parents.

In modifying the child support award, the court found:

The Court rejects the Form 14 calculation submitted by [Mother]. The Court finds that the Form 14 calculation submitted by [Father] is credible; however, because of the expenses [Father] is required to pay for the parties’ daughter, the Court finds that the application of [Rule 88, Missouri Rules of Civil Procedure (2004) ] and the Form 14 calculation is unjust and inappropriate and deviates from the guideline and the Court orders [Father] to pay the sum of $433[ ] as and for the support of the parties’ son and continue to be obligated to pay one-half the college expenses for [daughter]. .. ,

In this point, Mother first contends that there was no showing of a substantial and continuing change of circumstances supporting the modification of child support. She points out that pursuant to Section 452.370.1, a child support award may only be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Mother argues, however, that Father “offered no evidence as to his changed circumstances except for the slight and perhaps temporary reduction in his monthly income, and the requirement to pay his daughter’s educational expenses.” She also argues that while there was evidence of the current costs for tuition and fees at the University of Missouri-Columbia (which fees were to be used to establish the maximum expense obligation during any given year), there was no evidence as to what those costs were at the time of the original judgment.

In determining child support, the court’s function is to protect the best interests of the child. Word v. Peterson, 57 S.W.3d 894, 897 (Mo.App. W.D.2001) (quoting Harrison v. Harrison, 28 S.W.3d 500, 501 (Mo.App. E.D.2000)). Child support remains subject to modification even though the original decree incorporated a settlement agreement between the parties. Potter v. Potter, 90 S.W.3d 517, 520 (Mo.App. S.D.2002). Under such circumstances, however, the party seeking modification has the burden of proving that he or she is unable to support the child in the manner contemplated at the time the settlement agreement was incorporated into the dissolution decree. Id. at 522.

In reviewing the judgment, it appears that the trial court based its decision to modify the child support on an improved financial condition of Mother (by imputing income to her), and the amount Father would be required to pay for daughter’s college education under the earlier agreement. We hold that, under the circumstances here, these conclusions were erroneous.

Pursuant to Section 452.370.1, in order to modify a child support award, there must be a showing of changed circumstances so substantial and continuing as to make the terms of the support award unreasonable. In making that determination the trial court shall consider all financial resources of both parties, and the earning capacity of a party who is not employed. The parent seeking the modification has the burden of proving a substantial and continuing change in circumstances sufficient to modify child support. Brown v. Brown, 19 S.W.3d 717, 724 (Mo.App. W.D.2000). Here, it is not clear what the trial court determined as a basis for modifying the child support award. It merely said that based on the facts and findings set forth in the judgment, there was a basis for modification pursuant to Section 452.325.

In its findings, the trial court referred to the imputation of income to Mother; the fact that with that income imputed to her she would have monthly income $1,190 greater than at the time of the dissolution; and that the estimated cost to each parent of daughter’s expense in attending the University of Missouri-Kansas City PreMed program was $5,555.98 per year. Thus, it appears that these were the bases for the apparent conclusion that there had been a substantial and continuing change of circumstances sufficient to support a modification of child support.

With reference to the imputation of income to Mother, this court has declined to hold that a parent paying child support is entitled to a reduction if the parent receiving it experiences an increase in income. In re Marriage of Deane, 798 S.W.2d 732, 735 (Mo.App. S.D.1990). See also McMiekle v. McMickle, 862 S.W.2d 477, 481 (Mo.App. W.D.1993) (more than a twenty percent increase in income by a parent receiving child support is not a valid basis for a prima facie showing of a substantial change of circumstances); In re Marriage of Stanley, 793 S.W.2d 487, 489 (Mo.App. E.D.1990) (an increase in the income of a parent receiving child support “neither justifies nor requires modification of the terms of an award”). Thus, the imputed income increase to Mother was not alone sufficient to provide the required continuing and substantial change necessary to the modification.

The other factor discussed by the trial court was the fact that each parent’s share of the then present educational expense of daughter was $5,555.98. We are not directed to any portion of the record establishing what the expense would have been at the time of the dissolution decree, or even what the parties anticipated, at the time, that it would bq. “Section 452.370, RSMp (Supp.1990), requires a change in circumstances that is substantial and continuing in nature, such as to make the original judgment unreasonable, before a motion to modify will be granted.” Campbell v. Campbell, 825 S.W.2d 319, 321 (Mo.App. W.D.1992). “The party seeking modification has a heavy burden of proving he is unable to support his children in the manner contemplated at the time the separation agreement was incorporated into the dissolution decree.” Brown, 19 S.W.3d at 724.

In this case, the evidence was that, at the time of trial, Father’s income was only $145 per month less than at the time of the original decree. Without evidence concerning the comparative costs of the relevant items at the University of Missouri-Columbia at the time of the original decree and at the time of this trial, we are unable to determine whether those comparative costs were sufficient to provide a basis to modify the child support.

Mother also complains that the trial court failed to make findings of the presumed child support amount or a finding of the factual basis to support the conclusion that the presumed child support amount was unjust and inappropriate. These contentions are also well taken.

Rule 88.01 “requires a determination of the presumed correct child support amount pursuant to a correct Form 14 calculation in every case in order to insure that the child support guidelines are considered as mandated.” Woolridge v. Woolridge, 915 S.W.2d 372, 380 (Mo. App. W.D.1996). In order to rebut the presumed correct amount of child support as unjust or inappropriate, it is axiomatic that there must first be a calculation of the presumed amount. Id. Without a determination on the record as to the Form 14 presumed correct child support amount, meaningful appellate review would be doubtful at best in cases of deviation. Id. Inadequacy of the record concerning the determination and finding of the presumed correct child support amount pursuant to Rule 88.01 using Form 14, and why the presumed correct child support amount should be rebutted, if the trial court so determines, require reversal. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997).

In the instant case, the trial court did not find for the record the presumed correct child support amount. It rejected the Form 14 filed by Mother; found that the Form 14 filed by Father was “credible”; found that because of the expenses Father is required to pay for daughter, the “application of Missouri Rule of Civil Procedure 88 and the Form 14 calculation is unjust and inappropriate and deviate[d] from the guideline”; and it then ordered Father to pay the same amount contained in Father’s Form 14. If the trial court meant, by finding that Father’s Form 14 was “credible,” that it was adopting that as the presumed correct child support amount, the record does not indicate how or why it rebutted it as “unjust and inappropriate” but then ordered child support in the same amount reflected on the form. Conversely, if the $433 ordered as child support for the minor child was the result of deviation from some other determination of the presumed correct child support amount, the calculation from which the deviation occurred is not apparent from the record. In short, we are unable to determine from this record what the trial court determined was the presumed correct child support amount and how it was calculated. This requires a reversal and remand with reference to the portion of the judgment relating to child support. Neal, 941 S.W.2d at 504.

In her third and last point on appeal, Mother contends that the trial court erred in denying her motion for new trial. She alleges that the ruling was “against the clear weight of the evidence and was an abuse of discretion in that critical factors had changed between the entry of the judgment and the filing of the motion and the judgment omitted findings which were required by law.”

Rule 84.04(d)(1) requires that a point relied on “(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the contest of the ease, those legal reasons support the claim of reversible error.” That rule also contains an example of the form a point relied on should be in. Significantly, Rule 84.04(d)(4) provides that “[a]bstract statements of law, standing alone, do not comply with this rule.”

This point, relied on fails to comply with the requirements of Rule 84.04(d). As such, it preserves nothing for appellate review. Hall v. Mo. Bd. of Probation and Parole, 10 S.W.3d 540, 544 (Mo.App. W.D.1999). Accordingly, we do not review Mother’s third point.

The judgment is reversed with reference to the portions relating to child custody and child support, and the case is remanded for further proceedings not inconsistent with this opinion.

BATES, C.J., and BARNEY, J.,— concur.

      . Section 452.375.1(1) defines child "custody” under Missouri law as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.” "Primary physical custody” is not a custodial arrangement authorized under law. See Aurich v. Aurich, 110 S.W.3d 907, 912 (Mo.App. W.D.2003). All references to statutes are to RSMo (2000) unless otherwise indicated.

      . Section 452.340.5 provides that a parental support obligation continues past eighteen if the child is enrolled in and attending a secondary school program of instruction. The ■ fact that the modification judgment here eliminated child support, as such, for daughter is not an issue on appeal. The trial court noted, however, that "paying a child’s college expenses is a form of child support,” citing In re Marriage of Eskew, 31 S.W.3d 543, 546 (Mo.App. S.D.2000).

      . Under Section 452.400.1, a parent not granted custody of a child is entitled to visitation. Where the parties are awarded joint physical custody, there is no visitation schedule, only a joint physical custody schedule, and conversely, where one parent is awarded sole custody, there is not a joint custody schedule, only a visitation schedule. Loumiet v. Loumiet, 103 S.W.3d 332, 337-38 (Mo.App. W.D.2003).

      . Section 452.310.7 provides that a parenting plan shall set forth the arrangements believed to be in the best interest of the "minor” children. It has been held that the age of majority for child custody purposes is eighteen unless the provisions of Section 452.340.4 or .5 apply. Scruggs v. Scruggs, 161 S.W.3d 383, 391 (Mo.App. W.D.2005). Since the judgment was entered in this case, Section 452.310 has been amended to include subsection 10 which provides, inter alia, that "the filing of a parenting plan for any child over the age of eighteen for whom custody, visitation, or support is being established or modified ... is not required."

      , All other references to rules are to Missouri Rules of Civil Procedure (2004) unless otherwise indicated.

      . Mother does not attack the imputation of this income to her on this appeal.

      . According to the record, daughter began full time enrollment in the University of Missouri-Kansas City Pre-Med program in the fall of 2003, although some expense had been incurred because she also took some classes prior to that time. Father paid one-half of the bills submitted to him for the summer of 2003. For the expenses covering the fall and spring semesters .of 2003-2004, Father obtained a loan and checks were sent to the schools but returned because Mother had paid the tuition and fees. At the time of trial, Father had still not actually paid any of the expense for those two semesters.

      . We note that Section 452.370.1, not Section 452.325, provides the statutory basis for modification of a child support award. Brown, 19 S.W.3d at 724.

      . The anticipated college expenses were apparently not incorporated into the Form 14 calculations that the dissolution decree was based on.

      . We assume this was the factual basis relied ■ on by the trial court in finding that the presumed correct amount of child support was rebutted as unjust or inappropriate. We note that there is authority that a court may address college expenses in a Form 14 calculation, as a basis for rebutting a Form 14 amount as unjust or inappropriate, or by entering a separate order of support for such expenses in lieu of including them in the trial court's Form 14 calculation or rebutting the Form 14 amount. See Smith v. White, 114 S.W.3d 407, 413-14 (Mo.App. W.D.2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald W. JACOBSMEYER and Bingham Properties, L.L.C., Plaintiffs/Appellants, v. CHARLES L. CRANE AGENCY, Defendant/Third-Party Plaintiff, v. Maryland Casualty Company, Defendant/Third-Party Defendant.
    No. ED 85908.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 22, 2005.
    Rehearing Denied Jan. 9, 2006.

      Paul Simon, Jr., Thomas J. Magee, St. Louis, MO, for appellant.
    Jeffrey L. Cramer, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L; COHEN, J.
   ORDER

PER CURIAM.

Donald W. Jacobsmeyer, Jr. and Bing-ham Properties, L.L.C. (herein collectively referred to as “plaintiffs”) appeal the judgment of the trial court granting summary judgment in favor of Maryland Casualty Company (“Maryland”). Plaintiffs claim that a genuine dispute as to material fact exists regarding Maryland’s purported cancellation of the insurance policy. Charles L. Crane Agency (“Crane”) cross-appeals the judgment of the trial court in favor of plaintiffs on count three of their petition for negligent misrepresentation, and the judgment granting Maryland’s motion for summary judgment as to Crane’s third-party claims against it. Crane claims the trial court erred in entering judgment in favor of plaintiffs because the insurance policy was in effect due to Maryland’s failure to properly cancel it. Crane also argues that the trial court erred in granting summary judgment in favor of Maryland because there were genuine issues of material fact with respect to its claims of contribution and indemnity against Maryland.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    The BOSTON COMPANIES, L.L.C., Plaintiff/Appellant, v. PAR PARTNERSHIP, INC., d/b/a, Outdoor Solutions, Defendant/Respondent.
    No. ED 85786.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Thomas E. Osterholt, Jr.,. St. Louis, MO, for appellant.
    Gregory F. Herkert, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

The Boston Companies, L.L.C., (“landlord”) appeals from the judgment of the trial court awarding it $6,740.82 in back rent, $2,550.00 in late fees,- and $2,500.00 for attorney’s fees on its cause of action for breach of contract by PAR Partnership, Inc., d/b/a Outdoor Solutions (“landscaper”).

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Cindy S. MORTON, Appellant.
    No. ED 85906.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Seth Schumaker, Kirksville, MO, for appellant.
    Brenda Swedberg, Lancaster, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Cindy Morton (“Defendant”) appeals from the judgment of the trial court finding her guilty of two counts of stealing under $500 in violation of RSMo section 570.030 (Cum.Supp.2003), class A misdemeanors, after a bench trial. Defendant contends that the trial court erred in finding her guilty of the two charges in that the State of Missouri (“State”) did not prove that venue was proper beyond a reasonable doubt. Defendant further asserts that the trial court erred in finding her guilty in that it improperly admitted hearsay evidence contained in business records and it had to make impermissible inferences to find her guilty based on the evidence presented. Defendant also argues that the trial court erred in finding her guilty because the State failed to disclose potentially exculpatory evidence.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Steven GOLET, Appellant.
    No. ED 84521.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Rehearing Denied Jan. 9, 2006.
    Margaret Mueller Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Steven Golet (hereinafter, “Defendant”) appeals from the judgment entered after a jury found him guilty of one count of attempting to sell methamphetamine, Section 195.211 RSMo (2000) , two counts of trafficking in the first degree, Section 195.222, one count of attempting to manufacture methamphetamine, Section 195.211, two counts of possession of methamphetamine, Section 195.202, and four counts of endangering the welfare of a child, Section 568.045. The trial court sentenced Defendant to a total of thirty years’ imprisonment.

On appeal, Defendant raises four allegations of error. He claims the trial court erred in overruling his motion for severance, twice violating his right to be free from double jeopardy, and overruling his motion to suppress evidence.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).

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


author:
GEORGE W. DRAPER III, Judge.
      KENNETH M. ROMINES, Judge,

text:
    STATE of Missouri, Respondent, v. Larry JORDAN, Appellant.
    No. ED 84583.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.

      Craig A. Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Evan J. Buchheim, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER III, Judge.

Larry Jordan (hereinafter, “Defendant”) appeals from the trial court’s judgment after a jury found him guilty of: assaulting a law enforcement officer in the third degree, Section 565.083 RSMo (2000); assaulting a law enforcement officer in the second degree, Section 565.082; armed criminal action, Section 571.105; felony resisting arrest, Section 575.150; felony driving while intoxicated, Section 577.010; and driving while revoked, Section 302.321. Defendant was sentenced to a total of fifteen years’ imprisonment.

Defendant raises two points on appeal. First, Defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence because he alleges there was insufficient evidence to convict him of felony resisting arrest. Second, Defendant argues the trial court abused its discretion in overruling his objection and allowing the State to introduce the blood alcohol content when the State failed to lay a proper foundation for the results. We affirm in part, reverse in part.

Viewing the evidence in the light most favorable to the jury’s verdict, the facts are as follows: On June 1, 2002, Officer Steven Wooten (hereinafter, “Officer Wooten”) was working secondary employment as a security officer directing traffic for a large church festival in Bridgeton, Missouri. Officer Wooten observed a Cadillac heading north in the southbound lane of Fee Fee Road. As the Cadillac approached the intersection where Officer Wooten was directing traffic, he noticed the vehicle did not have brake lights or a license plate. Officer Wooten raised his hands and motioned the driver to slow down. The Cadillac slowed down as it passed Officer Wooten and came to a stop behind another vehicle at the stoplight. After receiving complaints from other motorists about the driving of the Cadillac, Officer Wooten approached the vehicle.

Upon reaching the Cadillac, Officer Wooten instructed the driver, Defendant, not to move the vehicle when the stoplight turned green. Defendant questioned Officer Wooten’s reasons for wanting to see his driver’s license. Expressing his disagreement, Defendant cursed, at which point Officer Wooten reached into the car in an attempt to find the car keys in order to turn off the ignition. The steering column had been pried open, so Officer Wooten tried to reach the gear selector to put the Cadillac into park. At this point, Defendant turned the steering wheel and began accelerating, thereby catching Officer Wooten’s arm inside the car. As soon as Officer Wooten was able to extract his arm, Defendant toned the car away, hitting Officer Wooten in the right knee and driving off.

Officer Wooten radioed for assistance, stating he was struck by the Cadillac which was traveling northbound on Fee Fee Road and providing a description of Defendant. Officer Daniel O’Connor (hereinafter, “Officer O’Connor”), Officer Brian Pulling (hereinafter, “Officer Pulling”), and Officer Jimmy Livingston (hereinafter, “Officer Livingston”) responded to the call in separate marked police vehicles with their lights and sirens activated. These officers attempted to stop Defendant several times while Defendant led the officers on a chase through a residential neighborhood, which resulted in Defendant ramming Officer O’Connor’s vehicle.

After the collision, Officer O’Connor and Officer Livingston exited their vehicle and approached the Cadillac. The engine was racing and the wheels continued spinning. Defendant was belligerent, yelling, and cursing at the officers, threatening to kill them. Officer Livingston walked up to the driver’s side door in an attempt to “get [Defendant] under control.” Defendant was ordered to stop accelerating the vehicle, but he refused to do so. Officer Livingston reached in to turn off the vehicle, and Defendant grabbed him by the arm and attempted to pull him into the vehicle. An altercation ensued, and Officer Livingston struck Defendant several times. Ultimately, Defendant was removed from the vehicle and arrested.

Defendant’s speech was slurred, there was a strong odor of alcohol on his breath, and he continued to be belligerent by continuing to curse and yell at the officers. Officer Pulling found bottles of alcohol and beer in the vehicle, some of which had been consumed. Later, after Defendant was taken to the hospital, Officer Pulling requested that blood be drawn for testing.

Defendant was charged initially with two counts of assaulting a law enforcement officer in the first degree, two counts of armed criminal action, one count of felony resisting arrest, one count of driving while intoxicated, and one count of driving while revoked. The indictment was amended later to reduce one of the assaults of a law enforcement officer in the first degree to a second degree offense. Defendant filed motions to suppress the blood alcohol content evidence and statements made during the course of the incident. These motions were denied.

After a jury trial, Defendant was found guilty of one count of assault of a law enforcement officer in the third degree, assault of a law enforcement officer in the second degree, one count of armed criminal action, one count of felony resisting arrest, one count of driving while intoxicated, and one count of driving while revoked. As a prior and persistent offender, Defendant was sentenced to a total of fifteen years’ imprisonment. Defendant appeals.

In his first point on appeal, Defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of the State’s case for felony resisting arrest. Defendant argues there was insufficient evidence presented that Officer Livingston intended to arrest him for assaulting a law enforcement officer in the first degree, a class A felony., Therefore, the jury could not find beyond a reasonable doubt that he was guilty of felony resisting arrest.

We limit our review of a challenge to the sufficiency of the evidence supporting a criminal conviction to a determination of whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). For this review, we consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to the jury’s verdict, and disregard all contrary evidence and inferences. Id. While reasonable inferences may be drawn from direct and circumstantial evidence, “the inferences must be logical, reasonable and drawn from established fact.” State v. Presberry, 128 S.W.3d 80, 91 (Mo.App.E.D.2003). “In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense.” State v. Dixon, 70 S.W.3d 540, 544 (Mo.App. W.D.2002).

The State has the burden to prove each and every element of a criminal case. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App. E.D.2003). If the State fails to produce sufficient evidence to sustain a conviction, we must reverse the trial court’s judgment. State v. West, 21 S.W.3d 59, 61 (Mo.App. W.D.2000).

The three elements of resisting arrest are: (1) knowledge that a law enforcement officer is making an arrest; (2) purpose on the part of the defendant to prevent the officer from effecting the arrest; and (3) resisting the arrest by use or threat of violence of physical force. State v. Larner, 844 S.W.2d 490, 492 (Mo.App. E.D.1992); Section 575.150. “[Rjesisting arrest is a felony offense only if the underlying offense is a felony and the resistance is accomplished by a means other than flight.” DeClue v. State, 3 S.W.3d 395, 397 (Mo.App. E.D.1999)(quoting State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982)). The relevant inquiry is not whether the defendant is guilty of the charge for which he or she was arrested, but whether the arresting officer contemplated making a felony arrest. State v. Merritt, 805 S.W.2d 337, 339 (Mo.App. E.D.1991).

The State focuses on the collective testimony of the officers involved to show the reasonable inference from all of the evidence was that Officer Livingston contemplated arresting Defendant for a felony. This Court recently addressed a similar situation. In State v. Brooks, 158 S.W.3d 841 (Mo.App. E.D.2005), there was more than one police officer involved in the apprehension and arrest of the defendant. This Court stated:

Before we begin our analysis, it should be made clear that [Brooks] was charged with resisting arrest by Officer Farrow, the officer who followed the suspect truck. He was not charged with resisting arrest by Officer Siebum, the officer who found him in the shed. Arguments made by the parties regarding [Brooks’] encounter with Officer Siebum are misplaced and are not material to whether [Brooks] resisted arrest by Officer Farrow. It follows that any facts pertaining to [Brooks’] encounter with Officer Siebum are immaterial to our review.

Id. at 851.

Likewise, we find any arguments made with respect to Officer O’Connor’s encounter with Defendant are immaterial to our review here. Even assuming arguendo we were to consider Officer O’Connor’s testimony at trial, to wit: “He struck an officer. We were planning on arresting him for the charges, evading my red lights, and siren” this evidence would only establish resisting arrest by flight which does not constitute felony resisting arrest. Cf Section 575.150.

At trial, Officer Livingston testified that when he approached Defendant after the chase, his intention was to “bring him under control ... and stop the vehicle.” At no point in Officer Livingston’s testimony did he indicate contemplating arresting Defendant or that he intended to arrest Defendant for a felony. Since there were a variety of charges for which Defendant could have been arrested, we cannot say the evidence established a basis for a felony arrest beyond a reasonable doubt. See State v. Bell, 30 S.W.3d 206, 208 (Mo.App. S.D.2000). Moreover, “[i]t would have been simple for the State to show what the officer was arresting [Defendant] for [at that moment]. Failing to show this, when it could have been easily established, casts doubt upon the State’s contentions.” Id. Therefore, we find there was insufficient evidence to convict Defendant for felony resisting arrest. Point granted.

In his second point on appeal, Defendant argues the trial court abused its discretion in admitting evidence of his blood alcohol content over his objection at trial. Defendant argues the State failed to lay a proper foundation for admission of the test results because it failed to prove that the blood drawn from Defendant was done so by a previously unused and sterile needle and sterile container as required by Section 577.029.

Defendant filed a general motion to suppress seeking to exclude all evidence seized from him after his arrest, which included the blood drawn from him at the hospital. A hearing on the motion was held during trial.

The trauma nurse who drew Defendant’s blood at the hospital testified that when a police officer makes a request for her to draw blood, she would “prepare the patient’s arm with a betadine solution, wipe it off with a dry piece of cotton, insert the needle, draw the blood. We hand it directly to the police officer after we label it in front of him and sign a chain of custody form.” The nurse explained that she used a betadine swab “to make sure there is no question of carry over from an alcohol prep.” There was no objection to this testimony. Defense counsel only asked one question on cross-examination regarding whether she gave the sample to Officer Pulling after drawing Defendant’s blood.

Defense counsel did object, however, when a technician from the St. Louis County Medical Examiner’s Office testified regarding Defendant’s blood alcohol content. Defense counsel stated:

I would renew my motion to suppress at this time for all of the reasons that have been previously stated including the fact that the State has not shown that the blood was withdrawn and in conformity with Missouri statutes and regulations, among other things, and previous testimony at the motion to suppress.

Defense counsel specifically argued the nurse did not follow Missouri statutes because “[s]he would have, at this point for sedation purposes, would have used an alcoholic substance, which obviously would taint any results of the blood test.” Defense counsel also argued the State did not establish a proper chain of custody. The trial court overruled defense counsel’s objections and allowed the technician to testify about the results of the blood test.

The trial court has broad discretion in admitting evidence, and its decisions will be affirmed on appeal absent an abuse of discretion. State v. Moore, 88 S.W.3d 31, 35 (Mo.App. E.D.2002). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances then before the court, and is so unreasonable and arbitrary that the ruling shocks the court’s sense of justice, and indicates a lack of careful consideration. State v. Anglin, 45 S.W.3d 470, 472 (Mo.App. W.D.2001).

When using a blood test to prove blood alcohol content, the proponent of the test must meet all foundational prerequisites for its admission. Clark v. Dir. of Revenue, 132 S.W.3d 272, 276 (Mo.App. S.D.2004). “The required prerequisites are: (1) that the individual who took the blood sample was a licensed physician, registered nurse, or trained medical technician; (2) that a sterile needle was used; (3) that a sterile container was used; and (4) that a non-alcoholic antiseptic was used.” Id., citing Section 577.029. Missouri courts have held that “absolute and literal compliance is necessary” with the requirements of Section 577.029. State v. Setter, 763 S.W.2d 228, 230 (Mo.App. W.D.1988). These requirements “are clear and [are] not difficult to meet.” Id.

“To preserve an objection to evidence for review, the objection must be specific, and the point raised on appeal must be based upon the same theory” presented at trial. State v. Brethold, 149 S.W.3d 906, 909 (Mo.App. E.D.2004)(quoting State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995)). Moreover, when a defendant objects to the admission of evidence on the grounds that an inadequate foundation has been laid, it is “particularly important that the objection made be specific because foundation deficiencies can frequently be remedied.” Rathbun v. CATO Corp., 93 S.W.3d 771, 785 (Mo.App. S.D.2002). “Missouri courts strictly apply these principles based on the notion that trial judges should be given an opportunity to reconsider their prior rulings against the backdrop of the evidence actually adduced and in light of the* circumstances that exist when the questioned evidence is actually proffered.” State v. McCullum, 63 S.W.3d 242, 259 (Mo.App. S.D.2001).

While it can be argued Defendant made specific objections to the admission of the blood alcohol content because the trauma nurse used “an alcohol substance” and the chain of custody might have been compromised, he never objected to the evidence on the basis that the State failed to demonstrate the trauma nurse used a sterile needle and container when drawing his blood. The objection to the blood test results made by Defendant was not sufficiently clear and definite in this regard. Further, Defendant’s motion for new trial merely states “the State failed to lay the proper foundation for admission of the blood test.” There is no specific statement regarding the procedures used for withdrawing the blood or that the trauma nurse failed to use a sterile needle or container. Moreover, the argument regarding the failure to use a sterile needle or container is a new theory on appeal which was not presented to the trial court below.

Therefore, the argument that the State failed to lay a proper foundation for admission of the blood test results is not preserved for appeal. Mayridis v. Dir. of Revenue, 155 S.W.3d 775, 779 (Mo.App. E.D.2005). Point denied.

We reverse this case with respect to Point I only.

GARY M. GAERTNER, SR., P.J., concurs.

KENNETH M. ROMINES, J., concurs in separate opinion.

KENNETH M. ROMINES, Judge,

concurring.

I concur with the Courts analysis in regard to the admission of the blood alcohol evidence.

I reluctantly concur with the Courts result as to the resisting arrest conviction.

Instruction No. 19, which is MAI-CRBd 329.60.2, was given to the Jury as Follows:

Instruction No. 19
As to Count V, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about June 1, 2002, in the County of St. Louis, State of Missouri, James Livingston was a law enforcement officer, and
Second, that James Livingston was making an arrest of the defendant for assault of a law enforcement officer in the first degree, and
Third, that defendant knew or reasonably should have known that a law enforcement officer was making an arrest of defendant, and
Fourth, that for the purpose of preventing the law enforcement officer from making the arrest, the defendant resisted by using or threatening the use of violence or physical force, then you will find the defendant guilty under Count V of resisting arrest.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
MAI-CR3d 329.60.2
Submitted by the State

By this instruction the Jury had to believe beyond a reasonable doubt that James Livingston was making an arrest of defendant for assault of a law enforcement officer. The prosecutor failed in eleven pages of testimony of Officer Livingston, to ask the officer what the basis of the arrest was. In fact there is no testimony that Livingston placed defendant under arrest at all. An odd lack of testimony as the information was also based on Livingston’s conduct of the arrest. The only testimony at all in regard to Officer Livingston’s intention was in answer to a leading question by counsel which the Court accurately reflects in its discussion of Livingston’s testimony.

Simply, there is no evidentiary basis for the giving of Instruction # 19, and the resisting arrest charge must be reversed. We need not inquire further into the subtleties of the resisting arrest statute and the morass of the cases. The discussion of resisting arrest is dicta. Further, reliance on State v. Brooks, 158 S.W.3d 841 (Mo.App.E.D.2005) is misplaced in any case where the State pursues felony resisting as in Brooks Id. the State conceded that there was only misdemeanor resisting thus all the conclusions drawn in Brooks concerning resisting arrest are likewise dicta.

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

      . Section 568.081.1 states "a person commits the crime of assault of a law enforcement officer in the first degree if he [or she] attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” Further, Section 568.081.2 designates assault of a law enforcement officer in the first degree as a class A felony.


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE ex rel. DIRECTOR OF REVENUE, STATE OF MISSOURI, Relator, v. The Hon. Charles D. CURLESS, Judge of the Circuit Court of Barton County, Missouri 28th Judicial Circuit, Respondent.
    No. 27277.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen.; James A. Chenault III, Sp. Asst. Atty. Gen., Jefferson City, MO, for Relator.
    Christopher Hoberock, Nevada, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

The Director of Revenue (“Relator”) filed a petition for a writ of prohibition to require the Honorable Charles D. Curless (“Respondent”) to recall his order granting Milton G. Wright (“Wright”) limited driving privileges pursuant to § 302.309. The Director contended that Wright was statutorily ineligible to receive such privileges since he had a prior felony conviction for driving while intoxicated. We issued a preliminary order in prohibition. Because we find Respondent exceeded his jurisdiction in granting limited driving privileges to Wright, our preliminary order is made peremptory.

On December 31, 2001, Wright was convicted in the Circuit Court of Barton County, Missouri, of driving while intoxicated. This offense was a felony because Wright was a persistent offender. See § 577.023. On February 2, 2002, Relator denied Wright’s driving privileges for a minimum of ten years as a result of this conviction. See § 302.060(9) RSMo (2000).

In July 2005, Wright filed a petition in the Circuit Court of Barton County, Missouri, requesting that he be granted limited driving privileges. The petition disclosed that Wright’s driving privileges had been denied for ten years by Relator because Wright had three prior alcohol-related driving convictions. A copy of Wright’s Department of Revenue driving record was attached to the petition. This record disclosed that Wright had three convictions for driving while intoxicated, one of which was the felony conviction mentioned above. On August 3, 2005, Respondent entered a judgment granting Wright limited driving privileges. On August 8, 2005, Relator filed a motion requesting that the court set the judgment aside because Wright was statutorily ineligible to be granted such privileges. Respondent denied the motion on September 14, 2005. Shortly thereafter, Relator filed a petition for writ of prohibition in this Court. We entered a preliminary order in prohibition and directed Respondent to file his answer to the petition in prohibition. Respondent has not done so and is in default.

One essential function of prohibition is to correct or prevent inferior courts and agencies from acting without or in excess of their jurisdiction. State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994); State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991); State ex rel. Cunningham v. Wiggins, 156 S.W.3d 473, 475 (Mo.App.2005). Relator argues that Respondent lacked jurisdiction to grant limited driving privileges to Wright. Specifically, Relator contends that § 302.309.3(5) renders Wright statutorily ineligible to receive such privileges because of his felony conviction for driving while intoxicated. We agree.

Wright sought to obtain limited driving privileges pursuant to § 302.309.3(6)(a), which states:

Provided that pursuant to the provisions of this section, the applicant is not otherwise ineligible for a limited driving privilege, a circuit court or the director may, in the manner prescribed in this subsection, allow a person who has had such person’s license to operate a motor vehicle revoked where that person cannot obtain a new license for a period of ten years, as prescribed in subdivision (9) of section 302.060, to apply for a limited driving privilege pursuant to this subsection if such person has served at least three years of such disqualification or revocation. Such person shall present evidence satisfactory to the court or the director that such person has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding three years and that the person’s habits and conduct show that the person no longer poses a threat to the public safety of this state.

(Emphasis added.) The italicized language in this portion of the statute is critically important because § 302.309.3(5) states, in pertinent part, that “no person is eligible to receive a limited driving privilege ... whose license has been suspended or revoked for the following reasons: ... (b) A conviction of any felony in the commission of which a motor vehicle was used.... ” In Hagan v. Director of Revenue, 968 S.W.2d 704 (Mo. banc 1998), our Supreme Court held that a felony conviction for driving while intoxicated constituted the commission of a felony using a motor vehicle and, therefore, rendered a driver statutorily ineligible to receive limited driving privileges pursuant to § 302.309.3(6)(a):

Giving the language of sec. 302.309.3(6)(a) its plain and ordinary meaning, án applicant is only eligible for a hardship license if: (1) he was ineligible to obtain an operator’s license for ten years pursuant to section 302.060(9); (2) he had served three years of the ineligibility; and (3) he was not “otherwise ineligible for a limited hardship driving privilege” under “this section” which includes subsection .3(5). Hagan could qualify under sec. 302.309.3(6)(a) if the sole basis of his ineligibility for hardship driving privileges was the ten year revocation. However, Hagan was ineligible for hardship driving privileges on a basis other than the ten year revocation. Specifically, he was ineligible due to the felony conviction involving the use of a motor vehicle. See sec. 302.309.3(5)(b). Thus, he did not meet the third requirement. The trial court erred in granting the hardship driving privileges.

Hagan, 968 S.W.2d at 706 (italics in original).

In the case at bar, Wright has a felony conviction for driving while intoxicated. Accordingly, he is statutorily ineligible to be granted limited driving privileges. State ex rel. Director of Revenue v. Mobley, 49 S.W.3d 178, 180 (Mo. banc 2001); Harris v. Director of Revenue, 132 S.W.3d 897, 902 (Mo.App.2004); Hicks v. Director of Revenue, 59 S.W.3d 927, 930 (Mo.App.2001); Conrad v. Director of Revenue, 20 S.W.3d 607, 609 (Mo.App.2000).

A circuit court lacks jurisdiction to grant limited driving privileges to a person who is not statutorily eligible to receive them. Williams v. Director of Revenue, 69 S.W.3d 919, 921 (Mo.App.2002); Hicks, 59 S.W.3d at 930. The only action Respondent should have taken was to dismiss Wright’s petition. Hicks, 59 S.W.3d at 930. Accordingly, Respondent acted in excess of his jurisdiction by granting Wright limited driving privileges. See Mobley, 49 S.W.3d at 180; State ex rel. Director of Revenue v. Ash, 173 S.W.3d 388, 390 (Mo.App.2005). Our preliminary order in prohibition is made peremptory.

SHRUM, P.J., and GARRISON, J., Concurs.

      . All references to statutes are to RSMo (Cum.Supp.2004), unless otherwise indicated. We also note that § 302.309 was amended effective September 30, 2005. Because the amendment took effect after entry of the trial court's judgment, we rely upon the prior version of the statute in deciding the issue presented by this prohibition action. Thus, all citations in this opinion to § 302.309 refer to the version that was in effect through September 29, 2005.


author: PHILLIP R. GARRISON, Judge.

text:
    Woodrow ANDERSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26925.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 29, 2005.

      Woodrow Anderson, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Stephanie Morrell, Asst. Atty. Gen., for respondent.
   PHILLIP R. GARRISON, Judge.

Woodrow Anderson (“Appellant”) appeals, pro se from the denial of his “Motion for Reconsideration of Motion to Reinstate Post-Conviction Petition.” We affirm.

Appellant was convicted by a jury of robbery and armed criminal action, and was sentenced as a prior and persistent offender to two concurrent twenty year sentences, which were affirmed in State v. Anderson, 953 S.W.2d 646 (Mo.App. S.D.1997). A timely pro se motion for post-conviction relief was filed by Appellant, and court appointed counsel, (“post-conviction counsel”) subsequently filed an amended post-conviction motion. An evi-dentiary hearing was held and the motion court entered its written findings of fact, conclusions of law, denying Appellant’s motion. Appellant filed a notice of appeal, and this court affirmed the motion court’s judgment in part, but remanded to the motion court to enter additional findings of fact and conclusions of law. Anderson v. State, 84 S.W.3d 501 (Mo.App. S.D.2002).

The motion court issued its amended findings of fact and conclusions of law again denying Appellant’s motion for post-conviction relief, which Appellant appealed and this court affirmed in Anderson v. State, No. 25278 (Mo.App. S.D. filed June 27, 2003). Appellant filed a “Motion to Reinstate Post-Conviction Petition,” which was denied. Appellant then filed a “Motion for Reconsideration of Motion to Reinstate Post-Conviction Petition,” the denial of which is the subject of this appeal.

In this appeal, Appellant complains that post-conviction counsel filed an amended post-conviction motion which included the eleven grounds from his pro se motion as well as one other ground, but that “there is no record of any activity by [post-conviction counsel] on [his] behalf concerning [his eleven grounds] ...” Appellant asserts that post-conviction counsel abandoned the eleven claims of error he originally asserted in his pro se motion in that she simply copied them into the amended petition and because she did not argue them at the hearing. He concludes that post-conviction counsel violated Rule 29.15(e), which provides in pertinent part:

Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.

Appellant contends that we should remand for appointment of new counsel. We disagree.

When Appellant filed his pro se petition for post-conviction relief, the motion court appointed post-conviction counsel, as provided in Rule 29.15(e). Appellant informed her that he wanted each of his original eleven grounds for relief to be incorporated into the amended petition for post-conviction relief. Post-conviction counsel photocopied Appellant’s original petition and included it in its entirety in the amended petition to which she added one other ground for relief. A hearing was held, at which post-conviction counsel conducted argument and called witnesses, including Appellant. Appellant, recognizing that we do not review claims of ineffective assistance of counsel in post-conviction relief proceedings, argues that this conduct amounted to post-conviction counsel taking no action on his original eleven claims of error and as such constituted abandonment.

There is no constitutional right to counsel for post-conviction relief proceedings. Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003), cert. denied, Barnett v. Missouri, 540 U.S. 862, 124 S.Ct. 172, 157 L.Ed.2d 114 (2003). As such there is no right to effective assistance of counsel and absent a finding of abandonment, Appellant’s claim is unre-viewable. Id. Abandonment occurs when:

(1) post-conviction counsel takes no action on a movant’s behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.

Id. at 773-774.

In this case post-conviction counsel clearly filed a timely amended petition to vacate, set aside or correct the judgment. It has been repeatedly held that the doctrine of abandonment will not be expanded to “encompass perceived ineffectiveness of post-conviction counsel.” Id.; Winfield v. State, 93 S.W.3d 732, 733-739 (Mo. banc 2002), cert. denied, Winfield v. Missouri, 528 U.S. 1130, 120 S.Ct. 967, 145 L.Ed.2d 838 (2000); State v. Ervin, 835 S.W.2d 905, 928-929 (Mo. banc 1992) (the scope of abandonment will not be extended beyond the two-part criteria mentioned above).

The record clearly shows that post-conviction counsel took action in this case and did not abandon Appellant. She incorporated all eleven claims in the amended petition to which she added a twelfth claim and a conclusion. As stated above she also presented evidence at the hearing and called witnesses, including Appellant. Simply because an amended petition is poorly prepared does not equate to abandonment. State v. Owsley, 959 S.W.2d 789, 799 (Mo. banc 1997). In essence Appellant’s abandonment claim is a claim of ineffective assistance of counsel and as stated above is unreviewable. Barnett, 103 S.W.3d at 773; see also Owsley, 959 S.W.2d at 799. Accordingly, the motion court’s ruling is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . All references to rules are to Missouri Rules of Criminal Procedure (2004) unless otherwise indicated.


text:
    Rodrigus RASPBERRY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85901.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 10, 2006.
    Irene Earns, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Rodrigus Raspberry (“Movant”) appeals from the judgment of the Circuit Court of Marion County denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. In his appeal, Mov-ant argues that the motion court clearly erred when it failed to find that plea counsel rendered ineffective assistance when she misinformed Movant that, if he entered a guilty plea, he would be eligible to serve his sentence in a long-term drug treatment facility and upon successful completion of that program, Movant would be released on probation.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


author: BOOKER T. SHAW, Judge.

text:
    In the Matter of Myrtle DUNN.
    No. ED 86151.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 10, 2006.

      Andrew Gerard Toennies, St. Louis, MO, for appellant.
    Armeta Dionne Cotton, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Barnes-Jewish Hospital (“Hospital”), through its designee Dr. Keith Isenberg (“Doctor”), appeals the judgment of the probate court dismissing his petition for involuntary electroconvulsive therapy to Myrtle Dunn (“Patient”) pursuant to Section 630.130 RSMo 2000 for lack of jurisdiction. We reverse.

Patient is an Illinois resident who, through her conservator Kathleen Moore (“Conservator”), sought treatment for chronic schizophrenia from Doctor at Hospital in the City of St. Louis. Conservator is also a resident of Illinois. After discussing the risks and benefits of electroconvul-sive therapy with Doctor, Conservator agreed to permit Hospital to file a petition, as required by Section 630.130, requesting that Patient receive electroconvulsive therapy to treat Patient’s illness on January 13, 2005. Although the probate court granted Hospital’s previous petition for involuntary electroconvulsive therapy in September 2004, the court dismissed Hospital’s January 13th petition for lack of jurisdiction sua sponte.

Hospital filed a motion to reconsider the dismissal on February 2, 2005. In response, on March 17, 2005, the probate court entered a written order explaining its reasons for dismissing Hospital’s petition. In particular, the probate court found that Section 630.130, which governs the voluntary and involuntary administration of electroconvulsive therapy to a patient, only permits guardians or conservators of patients, or persons filing on their behalf, to petition for electroconvulsive therapy. The probate court further found that Missouri does not recognize foreign guardians or conservators of a non-resident ward appointed under the guardianship laws of another state. Because Conservator, as a foreign guardian, lacked standing to obtain a court order authorizing electroconvulsive therapy, the probate court held that Hospital likewise did not have standing to file the petition on Conservator’s behalf.

Because of the probate court’s ruling, Hospital transferred Patient to its St. Louis County facility and filed a petition in the St. Louis County probate court for electroconvulsive therapy. The St. Louis County probate court granted Hospital’s petition. This appeal follows from the contrary judgment of the probate court for the City of St. Louis.

Because “[t]he mootness of a controversy is a threshold question in any appellate review of that controversy,” State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998), we will address Hospital’s third point regarding mootness first. In its third point, Hospital argues that the issues in this case are not moot despite the fact that Patient obtained electroconvulsive therapy under the order of the St. Louis County probate court. While we disagree with Hospital’s characterization of the issues presented as “not moot,” we find that an exception to the mootness doctrine applies warranting review of Hospital’s appeal on the merits.

When an event occurs that makes a court’s decision unnecessary or makes the court’s granting of relief impossible, the case is moot. McNeil-Terry v. Roling, 142 S.W.3d 828, 832 (Mo.App. E.D.2004). Here, Patient received the treatment sought after a favorable ruling from the St. Louis County probate court. Because Patient already received the treatment, the case is moot because we are unable to grant relief and any decision we make would be unnecessary. However, we may, in our discretion, review the merits of Hospital’s appeal if one of the exceptions to the mootness doctrine applies. See id. The first exception .occurs if a case becomes moot after argument and submission. Id. The second occurs if a case presents an issue that (1) is of general public interest; (2) will recur; and (3) will evade appellate review in future live controversies. Id.

We find that this case falls within the “general public interest” exception to the mootness doctrine. First, the question of who has standing to petition for involuntary electroconvulsive therapy is of general public interest because it concerns Missouri healthcare providers’ ability to treat patients with out-of-state guardians. Considering the proximity of larger cities like St. Louis and Kansas City to adjoining states, this issue likely affects several patients living in bi-state areas seeking treatment in the cities’ hospitals every year.

Second, we find that this issue will recur as evidenced by the record before this Court. Hospital has requested elec-troconvulsive therapy for this Patient alone twice in four months. Further, as this treatment requires multiple sessions, Hospital and other treatment providers in the city of St. Louis will have to comply with Section 630.130 and file petitions in the future for new and existing patients.

Finally, we find that this issue will evade appellate review in future cases. As explained in Hospital’s petition, this case involves therapy to help treat assaultive thoughts and behavior and intermittent suicidal ideation, which poses a threat to others and oneself. As a result, practically, patients requiring this treatment may be put at risk waiting for appellate review necessitating treatment in another setting, whether at a hospital in the patient’s state of residence or elsewhere, as in this case. Accordingly, we will exercise our discretion and review the issues presented in Hospital’s appeal. See McNeil-Terry, 142 S.W.3d at 832.

In Hospital’s first point, it argues the probate court erred in finding that it had no jurisdiction to consider its petition on the ground that Section 630.130 only allows a guardian to petition for electrocon-vulsive therapy for his or her ward. We agree that the probate court misinterpreted the statute, although for different reasons than those Hospital sets forth in its argument.

The construction of a statute is a question of law, not judicial discretion. Harrison v. King, 7 S.W.3d 558, 561 (Mo.App. E.D.1999). Thus, it falls within this Court’s province of independent review and correction, and consequently, no deference is given to the trial court’s determination of the law. Id.

Section 630.130 states the following, in relevant part:

1. Every patient, whether voluntary or involuntary, in a public or private mental health facility shall have the right to refuse electroconvulsive therapy-
2. Before electroconvulsive therapy may be administered voluntarily to a patient, the patient shall be informed, both orally and in writing, of the risks of the therapy and shall give his express written voluntary consent to receiving the therapy.
B. Involuntary electroconvulsive therapy may be administered under a court order after a full evidentiary hearing where the patient refusing such treatment is represented by counsel who shall advocate his or her position. The therapy may be administered on an involuntary basis only if it is shown, by clear and convincing evidence, that the therapy is necessary under the following criteria:
(1) There is a strong likelihood that the therapy will significantly improve or cure the patient’s mental disorder for a substantial period of time without causing him any serious functional harm; and
(2) There is no less drastic alternative form of therapy which could lead to substantial improvement in the patient’s condition....
4. Parents of minor patients or legal guardians of incompetent patients shall be required to obtain court orders authorizing electroconvulsive therapy under the procedures specified in subsection 3 of this section.

Id. “When interpreting a statute, our primary role is to ascertain the intent of the General Assembly from the language used in the statute and, whenever possible, give effect to that intent.” Harrison, 7 S.W.3d at 561. In determining legislative intent, we consider the words used in the statute in their plain and ordinary meaning. Id. If the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction. Id.

Emphasizing subsection 4 of Section 630.130, the probate court concluded that

it is readily apparent the legislature intended that, in the case of those patients for whom [electroconvulsive therapy] was sought who were adjudged incapacitated and had a legal guardian, any [electroconvulsive therapy] treatment will be presumed to be involuntary and, therefore, will not be permitted unless the patient’s “legal guardian” obtains a court order allowing same under the strict procedures and criteria set forth in [Section 630.130.3].

The probate court further stated that a legal guardian could seek a court order indirectly through others and does not necessarily need to be among the formally named petitioners. However, the probate court went on to state that “[i]t is clear that only the ‘legal guardian’ is statutorily authorized to ‘obtain’ such a court order, even if others are formally named as the petitioners. Under the statute, no other person has the authority to permit such a court proceeding to be brought.”

We disagree with the probate court’s interpretation. Reading the statute in its entirety, the statute is intended to provide patients with the right to refuse electroconvulsive therapy. Section 630.130.1. In the event a patient refuses treatment, but the treatment is otherwise necessary under Section 630.130.3(1) and (2), the statute provides a mechanism for treatment after a full evidentiary hearing. Section 630.130.3. Stated differently, the statute allows a healthcare provider who has a duty of care to act in a patient’s best interest, even where the patient has refused treatment, if a patient is in need of the therapy. To ensure that parents or legal guardians act in the best interests of a minor or incompetent patient, Section 630.130.4 requires parents and legal guardians to obtain a court order, in accordance with Section 630.130.3, before electrocon-vulsive therapy can be administered to a minor or incompetent patient.

The probate court’s interpretation of Section 630.130.4 as containing a requirement that only parents or legal guardians may obtain court orders for electroconvul-sive therapy for a minor or incompetent patient is contrary to the statute’s purpose. The purpose is to allow those who have a duty to care for minor or incompetent persons, including a treating physician or healthcare provider, to require such persons to receive treatment when treatment is in their best interests. To interpret the statute otherwise would bar a healthcare provider from filing a petition in the event that a parent or legal guardian refused, treatment for a minor or incompetent patient when the treatment is necessary. ■ In such an instance, the healthcare provider would not be acting “indirectly through others” on behalf of the parent or legal guardian. The probate court’s reading would allow a parent or legal guardian to have exclusive authority over whether the minor or incapacitated person would receive therapy. We find that the trial court’s interpretation of Section 630.130.4 is erroneous. Hospital’s first point is granted.

In its second point, Hospital argues the trial court erred in refusing to recognize and give effect to Conservator’s Illinois guardianship because Missouri law and the Full Faith and Credit Clause of the United States Constitution require the opposite result. In resolving this point, we refer to our recent decision in In re Prye, 169 S.W.3d 116 (Mo.App. E.D.2005). There, we held that Illinois guardianship status is entitled to recognition and enforcement by the Missouri courts under the Full Faith and Credit Clause. Id. at 120-22. The probate court erred in ruling to the contrary. Hospital’s second point is also granted.

The probate court’s judgment is reversed.

REVERSED.

KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY, J„ Concur.

      . Unless otherwise indicated, all statutory references are to RSMo 2000.


text:
    Terron WILLIAMS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85229.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 10, 2006.
    S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Kramer, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J„ and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Movant, Terrón Williams, appeals from the judgment denying his Rule 24.035 motion after an evidentiary hearing. Movant argues that his counsel rendered ineffective assistance by giving him erroneous advice regarding when he would be eligible for parole.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Philip D. SUDDARTH, Appellant, v. ELSBERRY SPECIAL ROAD DISTRICT, Respondent.
    No. ED 85129.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 10, 2006.
    Joshua E. Douglass, Bowling Green, MO, for appellant.
    Robert J. Guinness, St. Charles, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Philip D. Suddarth appeals from the judgment of the Circuit Court of Lincoln County denying Mr. Suddarth’s Petition for Declaratory Judgment, Permanent Injunction and Money Damages related to the Elsberry Special Road District’s (“the District”) obligation to maintain a certain roadway. In his appeal, Mr. Suddarth contends that the trial court erred when it denied money damages and held that in-junctive relief was not warranted because the District already maintained the roadway as required under Section 233.070 RSMo.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial and competent evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Jeffrey MOISER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85957.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 10, 2006.
    Jeffrey Mosier, # 525985, Jefferson City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Jeffrey Moiser (“Movant”), appeals the ruling of the Circuit Court of Jefferson County dismissing his motion to re-open his Rule 24.035 post-conviction proceedings. Movant previously pled guilty to second degree murder, section 565.021, RSMo 1994, robbery in the first degree, section 569.020, and armed criminal action, section 571.015. Movant was sentenced to life imprisonment on each count with the sentences to run consecutively. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the ruling of the motion court pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . All statutory references are to RSMo 1994, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. RONALD L. Robinson, Appellant.
    No. ED 85371.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 10, 2006.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Defendant, Ronald Robinson, appeals from the judgment entered after a jury found him guilty of robbery in the first degree and attempted robbery in the first degree. On appeal, defendant argues that the victims’ identifications of him were the result of impermissibly suggestive police procedures and this rendered the victims’ identifications unreliable.

No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 30.25(b).


text:
    Larry GRIGGS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85546.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 10, 2006.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. (Jeff) Bartholomew, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Larry Griggs (“Movant”) appeals from the motion court’s judgment denying his Rule 29.15 post-conviction motion after an evidentiary hearing. The State charged Movant with first degree assault pursuant to Section 565.050 RSMo 2000, armed criminal action pursuant to Section 571.015 RSMo 2000, first degree burglary pursuant to Section 569.160 RSMo 2000, and unlawful use of a weapon pursuant to Section 571.030 RSMo 2000. Movant was sentenced to twenty-five years’ imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App.E.D.2001). An extended would have no precedential value. We have furnished the parties with a memorandum for their information only, setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Nathaniel L. DIZER, Appellant.
    No. ED 85581.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 10, 2006.
    Lisa M. Stroup, St. Louis, MO, for appellant.

      Deborah Daniels, Richard Anthony Starnes, co-counsel, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Nathaniel L. Dizer (Defendant) appeals from the judgment entered after a jury found him guilty of unlawful use of a weapon and driving while revoked. Defendant argues that the trial court abused its discretion by denying his motion for mistrial and instead giving the jury the hammer instruction, MAI-CR3d 312.10. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in giving the jury the hammer instruction. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Mark HAMMOND, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85611.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 10, 2006.
    Loyce Hamilton (Asst. Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Karen L. Kramer, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant Mark Hammond (“Hammond”) appeals from the decision of the Circuit Court of St. Louis County, the Honorable John F. Kintz presiding, denying his Rule 29.15 Motion after a hearing. A jury found Hammond guilty of one count of Murder in the Second Degree, Section 565.021 RSMo. (2000) , one count of First Degree Robbery, Section 569.020, and two counts of Armed Criminal Action, Section 571.015. The trial court then found that Hammond was a Prior and Persistent Offender, and sentenced him to four consecutive life sentences in prison.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The parties have been given a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b)(2).

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


text:
    STATE of Missouri, Respondent, v. James HAWKINS, Appellant.
    No. ED 84661.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 10, 2006.
    Kristina Starke, St. Louis, MO, for appellant.
    Deborah Daniels, Daniel McPherson (co-counsel), Jefferson City, MO for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

James Hawkins appeals the judgment entered upon a jury verdict finding him guilty of two counts of statutory rape in the first degree, four counts of statutory sodomy in the first degree and two counts of child molestation in the first degree.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision. The judgment is affirmed under Rule 30.25(b).