author: PATRICIA L. COHEN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Tommy Gene ROSE, Appellant.
    No. ED 85092.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 9, 2005.

      Lawrence O. Willbrand, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Defendant Tommy G. Rose (“Defendant”) appeals his conviction of driving while intoxicated, in violation of Section 577.010, and sentence as a persistent offender, pursuant to Section 577.023, to four years imprisonment. We affirm in part and reverse and remand in part.

Background

On January 18, 2003, between 9:30 and 9:45 p.m., Normandy police officer Brian Bardie responded to a radio dispatch, which reported a red pickup truck weaving in and out of traffic on Highway 70. Officer Bardie spotted the truck, observed it nearly collide with another vehicle, noticed that it had a broken taillight, and pulled it over. Normandy police officer Madigan, who was also in the area, assisted Officer Bardie as back-up.

Defendant was driving the pickup truck. After being pulled over, Defendant exited the track and walked toward Officer Bar-die’s vehicle. Officer Bardie testified at trial that Defendant leaned against the track as he moved toward the police vehicle in order to keep his balance and nearly fell when he reached the end of the truck. Officer Bardie further testified that he had to hold Defendant while he talked with him and noted a “very strong” odor of alcohol on Defendant’s breath, glassy and red eyes, and slurred speech. Officer Bardie asked Defendant to perform three field sobriety tests: a horizontal gaze nystag-mus test, a one-leg-stand, and a walk and turn test. Defendant failed the horizontal gaze nystagmus and refused to complete the other tests.

Officer Bardie arrested Defendant for driving while intoxicated and placed him in Officer Madigan’s patrol car for transportation to the St. John Police Department where a BAC test could be administered.

St. John officer Kenneth Martin met Officers Bardie and Madison and Defendant at the St. John Police Department. Both Officers Bardie and Martin testified that Defendant was unsteady on his feet and required assistance getting out of the vehicle and walking to where the BAC machine was located. According to Officer Martin, Defendant was “definitely intoxicated.”

Officer Bardie advised Defendant of his Miranda rights and the Missouri Implied Consent Law, and requested Defendant to take a breathalyzer test. Defendant refused. Thereafter, Officer Madigan transported Defendant to Normandy for booking.

The State charged Defendant with driving while intoxicated (“DWI”), in violation of Section 577.010, and as a persistent offender, pursuant to Section 577.023.1(2). As to Defendant’s alleged persistent offender status, the State averred that Defendant pleaded guilty to two previous intoxication-related offenses, one occurring on August 27, 2000, in St. Louis County, and the other occurring on September 28, 1996, in St. Charles County.

The parties tried the case before a jury in March 2004. The jury convicted Defendant of driving while intoxicated. The trial court sentenced Defendant, as a persistent offender, to four years’ imprisonment in the Missouri Department of Corrections. This appeal followed.

Standard of Review

We will not disturb a trial court’s ruling regarding the substitution of an alternate juror for a regular juror during trial absent an abuse of discretion. State v. Naucke, 829 S.W.2d 445, 461 (Mo. banc 1992). We review a trial court’s rulings of law de novo. State v. Griffin, 28 S.W.3d 480, 481 (Mo.App. E.D.2000).

Discussion

A. Juror Bias

In his first point on appeal, Defendant asserts that the trial court erred in not replacing one of the jurors, Juror No. 11, with an alternate juror because, during trial, Juror No. 11 disclosed that she taught Officer Bardie, a witness in the case, approximately seventeen years prior to trial. The State counters that the trial court properly retained Juror No. 11 because she was able to state that her teaching relationship with Officer Bardie would not affect her ability to be fair and impartial. We agree with the State.

The substitution of a regular juror during trial is a matter entrusted to the trial court’s discretion. Naucke, 829 S.W.2d at 461. The trial court is in the best position to determine a juror’s ability to effectively discharge his or her duties. Lester v. Sayles, 850 S.W,2d 858, 870 (Mo. banc 1993).

Here, the record discloses the following colloquy between the trial court, Juror No. 11, counsel for Defendant, and the prosecutor:

The Court: We are out of hearing of the jury. Mrs. Sneed, you indicated that you didn’t realize that you knew Officer Bardie. How do you know Officer Bar-die?
[Juror No. 11]: Student of mine probably seventeen years ago.
The Court: Seventeen years ago.
[Juror No. 11]: Probably haven’t seen him in the past ten [years], but I taught him at Maplewood High School and I live in Brentwood. I’ve probably seen him around, not lately.
The Court: You don’t have any social relationship with him?
[Juror No. 11]: Not at all.
The Court: Or any other relationship, other than you taught him?
[Juror No. 11]: Right.
[Prosecutor]: Would that affect your ability to be fair and impartial as to evidence ... ?
[Juror No. 11]: No, ma’am.
[Defense Counsel]: You knew him because he was a student.
[Juror No. 11]: I thought I needed to tell somebody.
The Court: You did the right thing.
[Juror No. 11]: I didn’t recognize him for a few minutes.
The Court: Mrs. Sneed, you may go to the jury room to join your fellow jurors.
Any motions to make [Prosecutor], any motions to make with respect to Mrs. Sneed?
[Prosecutor]: Your Honor, she stated she feels she could be fair and impartial as a juror.
[Defense Counsel]: I would object to her remaining as a juror in terms of the relationship of teacher and student. She now recognizes him and she was asked about the name on voir dire. She did not respond. We have an alternate. This is a one day case.
The Court: I heard nothing to indicate she would be biased or prejudiced by the fact. She didn’t really know him until she saw and heard him. I don’t think it’s anything intentional on her part otherwise she wouldn’t call our attention to it. The motion will be denied.

Juror No. 11 stated that she taught Officer Bardie approximately seventeen years before the trial and had not been in contact with him recently. She had no social or other relationship with him. Additionally, she unequivocally stated that the fact that she had once taught Officer Bardie would not affect her ability to be fair and impartial. Under these facts, the trial court did not abuse its discretion in denying Defendant’s request to replace Juror No. 11.

Point denied.

B. Sentencing as a Persistent Offender

In his second point, Defendant argues that the trial court erred in sentencing him as a persistent DWI offender, pursuant to Section 577.023, because: (1) the State failed to prove that he pleaded guilty to or was found guilty of two or more intoxication-related traffic offenses within ten years of the offense for which he was charged, pursuant to Section 577.023.1(2); and (2) the trial court failed to specifically find that he was an intoxication-related persistent offender pursuant to Section 577.023.5(3). The State counters that the trial court did not err in sentencing Defendant as a persistent offender because Defendant admitted at trial that he committed two prior intoxication-related traffic offenses and the trial court was not statutorily required to make express findings that Defendant was a persistent offender.

The State’s Information alleged Defendant to be a persistent DWI offender, as follows:

Count I: Driving w/ Intoxicated — Persistent Offender — Felony
That Tommy G. Rose, in violation of Section 577.010, RSMo, committed the class D felony of driving while intoxicated, punishable upon conviction under Sections 558.011, 560.011 and 577.023, RSMo, in that on or about January 18, 2003, at approximately 10:00 P.M., eastbound 1-70 at Bermuda, in the County of St. Louis, State of Missouri, the defendant operated a motor vehicle while under the influence of alcohol, and on November 30, 2000, defendant had pleaded guilty to driving with excessive blood alcohol content, for events occurring on August 27, 2000, in St. Louis County Municipal Court cause # 00WM-O4.8779, and the judge was an attorney and the defendant was represented by an attorney or waived counsel in writing, and on April 29, 1997, defendant had pleaded guilty to driving while intoxicated, for events occurring on September 28, 1996, in St. Charles Associate Court, cause # CR696-8536M.

(Emphasis added).

To prove Defendant’s persistent offender status, as charged in the Information, the State “had the burden of introducing evidence that established, beyond a reasonable doubt, sufficient facts of those pleaded in the information to warrant a finding that [Defendant] was a persistent offender.” State v. Gibson, 122 S.W.3d 121, 127 (Mo.App. W.D.2003) (citing Section 577.023.5(2)). Where sufficient evidence is adduced to support the finding that a defendant is a persistent offender, the lack of a specific finding to that effect by the trial court is “only a procedural deficiency.” State v. Sparks, 916 S.W.2d 234, 238 (Mo.App. E.D.1995); State v. Boyd, 927 S.W.2d 385, 390 (Mo.App. W.D. 1996).

Section 577.023.1(2)(a) provides that a persistent offender “has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged.” An “intoxication-related traffic offense,” is defined as:

driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) of subsection 1 of section 565.024, RSMo, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (3) of subsection 1 of section 565.082, RSMo, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing[.]

Section 577.023.1(1).

In its brief, the State contends that it proved Defendant was a persistent DWI offender through Defendant’s admission, at trial, of his two prior driving while intoxicated convictions. Specifically, the State highlights the following exchange:

[Prosecutor]: On your prior DWIs, where did that occur, the most recent one?
[Defendant]: I had one in St. Charles and I had one in St. Louis County. [Prosecutor]: The one in St. Charles, when was that?
[Defendant]: I believe it was ’96.

The above exchange is insufficient to establish Defendant’s persistent DWI offender status. Even if Defendant’s testimony was sufficient to establish that Defendant pleaded to or was found guilty of an intoxication-related traffic offense in St. Charles in 1996, a persistent offender is one who has two prior intoxication-related traffic offenses, both of which occurred within ten years of the offense charged. State v. Cullen, 39 S.W.3d 899, 901 (Mo. App. E.D.2001). The record before us is devoid of evidence establishing when Defendant’s St. Louis County conviction occurred. The State failed to meet its burden of proving that Defendant had pleaded to or had been found guilty of two or more intoxication-related offenses as required by Section 577.023.

Without proof of Defendant’s prior driving while intoxicated offenses, there is no basis for sentencing Defendant as a prior and persistent offender. A remand to the trial court to determine whether Defendant is a prior and persistent offender and to resentenee him does not violate double jeopardy. Cullen, 39 S.W.3d at 904. However, in State v. Emery, 95 S.W.3d 98, 103 (Mo. banc 2003), the Supreme Court concluded that the trial court is not at liberty to reopen the proceedings and allow the State to present additional evidence as to a defendant’s prior and persistent status under Section 558.021. Section 577.023 follows the same procedures as Section 558.021 to establish persistent DWI offender status.

Here, the trial court cannot make a finding, based on the record, that Defendant is a persistent offender, because the evidence is insufficient to support such a finding. In addition, Defendant’s admission that he was convicted of DWI in St. Charles in 1996 was insufficient to support a finding that he was a prior offender under Section 577.023.1(8), because the offense did not occur within five years of 2003. Therefore, at most, Defendant may only be sentenced for the class B misdemeanor of driving while intoxicated under Section 577.010, RSMo 2000, and Section 558.011.1(6), RSMo Cum.Supp.2004. In addition, without proof that Defendant is a prior and persistent offender, he is entitled. to jury sentencing under Section 557.036, RSMo Cum.Supp.2004. Accordingly, his case must be remanded to trial court for jury sentencing in accordance with the procedures outlined in Section 557.036. See State v. Chapman, 167 S.W.3d 759, 763 (Mo.App. E.D.2005).

Conclusion

The judgment of conviction for felony driving while intoxicated is reversed in part and remanded for the trial court to enter a conviction for the class B misdemeanor of driving while intoxicated and for jury sentencing, unless waived, in accordance with the procedures outlined in section 557.036, RSMo Cum.Supp.2004. In all other respects, the judgment is affirmed.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

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

        . We note that here, unlike in Emery, the record reflects that defense counsel requested jury sentencing.


source: Caselaw Access Project

author: GLENN A. NORTON, Judge.

license: Public Domain

text:
    In the Interest of L.D.R. and L.B.N.B.
    No. ED 84858.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 9, 2005.

      Mark D. Hirschfeld, Clayton, MO, for appellant.

      Barbara L. Greenberg, Clayton, MO, for respondent.
    Dorothy E. Sehuchat, St. Louis, MO, for juveniles.
   OPINION

GLENN A. NORTON, Judge.

Father appeals the judgment terminating his parental rights. We affirm.

I. BACKGROUND

Mother and Father are not married to each other, but have had an “on and off often volatile relationship.” Mother was married to another man at the time these children were born. Later, when Mother was staying at Father’s house with the children, Father went to court to obtain an order of protection against Mother. While he was gone, Mother unexpectedly vacated Father’s house and left the children with her sister, which ultimately resulted in the children being taken into protective custody and placed with Mother’s cousin. According to the initial petitions for the court to take jurisdiction, the children needed care and treatment because Mother’s whereabouts were unknown and because Father “failed to assume custody” of the children when their aunt contacted him. The trial court found that those allegations were true, that Mother was in need of substance abuse treatment and that Father was not an appropriate placement and entered judgment assuming jurisdiction over the children. In the court’s judgment adopting a permanency plan of reunification, Father’s limited visitation with the children was “not to include contact with [Mother].”

Ultimately, the juvenile officer filed petitions to terminate, in which it was alleged that the children had been abused or neglected as found in the jurisdiction judgment, that the children had been in foster care for at least 15 of the last 22 months and that Mother’s husband — the children’s legal father — had abandoned them. After a hearing at which the children’s social worker, Mother’s cousin and Father testified, the court entered judgment terminating Father’s parental rights based on section 211.447.4(3) RSMo 2000, commonly referred to as the “failure to rectify” provision. The court found that the children had been under the jurisdiction of the court for over a year, “that the conditions which led to the assumption of jurisdiction still persist, conditions of a potentially harmful nature continue to exist, and continuation of the parent-child relationship greatly diminishes the prospects of the children for early integration into a stable and permanent home.” The court noted that although Father had complied with many of the provisions of the court-approved social service plan, he “has failed on a continuing basis ... to adjust his circumstances or conduct to provide a proper home for the children] despite diligent, reasonable and continuing efforts by the Children’s Division to aid him in doing so.” Much of the evidence the court cited in support of terminating Father’s rights related to the likelihood that he would allow unsupervised contact between Mother and the children if they were placed in his custody. The court found that Father continued to maintain a relationship with Mother, allowed her to enter his home and allowed contact between Mother and the children despite his awareness of court orders to the contrary. The court also cited Father’s testimony that Mother had threatened to burn his house down, had poured gasoline on his home and had stolen his truck and set fire to it. The trial court also terminated the parental rights of Mother and her husband, both of whom failed to appear at the hearing and neither of whom appeal the judgment. Mother’s termination was based in part on her chemical dependency, treatment for which had been unsuccessful, and on her failure to provide for the children.

On appeal, Father argues that the judgment was against the weight of the evidence and that there was insufficient evidence to terminate his parental rights under section 211.447.4(B).

II. DISCUSSION

In order to terminate parental rights, section 211.447.5 requires the trial court to find (1) that one or more statutory grounds for termination has been proven by clear, cogent and convincing evidence and (2) that termination is in the best interests of the children. In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). Evidence is considered to be clear, cogent and convincing if it “instantly tips the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). On appeal, we will affirm the trial court’s determination that a statutory ground for termination has been proven under this standard unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. P.L.O., 131 S.W.3d at 788-89. We defer to the trial court’s factual findings and consider the evidence and reasonable inferences to be drawn from that evidence in a light most favorable to the judgment. Id. at 789. Still, because of the constitutional implications of severing the sacred parent-child relationship, we carefully examine the trial court’s findings of fact and conclusions of law and strictly construe section 211.447 in favor of preserving that relationship. K.A.W., 133 S.W.3d at 12.

Here, the sole statutory ground for terminating Father’s parental rights was section 211.447.4(3), which provides that termination is appropriate if:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home.

The trial court must make several specific factual findings under subsections 211.447.4(3)(a)-(d), but the ultimate issue is whether “ ‘an unremedied, neglectful situation’ ” continues to exist. In the Interest of S.J.H., 124 S.W.3d 63, 67 (Mo.App. W.D.2004) (quoting In re 76 S.W.3d 318, 333 (Mo.App. W.D.2002)).

Other than Father’s initial failure to respond and care for the children after Mother left the children with her sister, the only harmful condition listed in the judgment that involves Father related to the likelihood that he would allow unsupervised contact between Mother and the children if they were placed in his custody. Father argues that the court originally assumed jurisdiction over the children because of his initial failure to take custody of the children, and not because he might allow the children to come in contact with Mother. But in deciding whether to terminate parental rights under section 211.447.4(3), the trial court may consider the continued existence of potentially harmful conditions that developed or became known after it originally assumed jurisdiction over the children. In the Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987) (citing section 211.447.2(3), the former version of section 211.447.4(3)); see also B.S.B., 76 S.W.3d at 333. Thus, even if Father rectified the initial problem and the trial court erred in stating that “the conditions which led to the assumption of jurisdiction still persist” with respect to him, that error is immaterial because the trial court properly considered other potentially harmful conditions in addition to those it knew about when it assumed jurisdiction over the children — namely, the likelihood that Father would permit the children to be exposed to Mother.

A parent’s continued exposure of his children to someone whom he knows is harmful to their well-being can, under certain circumstances, constitute a potentially harmful condition that would justify termination under section 211.447.4(3) if not rectified. See In re C.M.K, 140 S.W.3d 219, 224-26, 226 n. 11 (Mo.App. S.D.2004) (finding sufficient evidence to terminate parental rights under sections 211.447.4(2), (3) and (6) when parents engaged in abuse and domestic violence in presence of children and mother continually failed to distance herself from father’s abuse despite numerous warnings from social workers). There was clear, cogent and convincing evidence of such a situation here.

The children’s service worker testified that Father had shown an interest in the children, but that they would be in danger in his custody because of the likelihood that Mother would come and take the children and that Father would not be able to stop her from doing so. She further testified that, despite the court order prohibiting Father from permitting contact between Mother and the children during his visitation, Mother was present during every visit attended by a parent aide at Father’s house.

Although Father denied knowing that Mother was not supposed to be present during his visits with the children, the court had expressly ordered that his visits were “not to include contacts with [Mother].” Father testified that he would abide by all court orders if given custody of the children and that if Mother were not supposed to see the children, then he would not allow such contact. But the trial court specifically found that this testimony was not credible. Moreover, Father admitted that Mother “comes and goes when she wants to” and has “always been able to do that.” He testified that he would talk to Mother anytime she wanted to talk, that she had been at his house within the last two weeks and that she still comes around whenever she wants to, even if he tells her not to do so. Father described his relationship with Mother as one of “cohabitation and love.”

Nevertheless, Father admitted that Mother had set his truck on fire, thrown gasoline on his house, threatened to burn the house down and stolen his cars and sold them for drugs. Although it is not clear from the record precisely when these incidents occurred, it appears that at least some of them occurred fairly recently. Father stated that he is not afraid of Mother physically, but that he is afraid of what she might do because she is “an unpredictable type of person.” He considers Mother to be a liar and believes almost nothing that she says. After the children had been taken into protective custody, he allowed Mother to stay in his home despite having obtained an order of protection against her because “we were (indiscernible) together. The babies were gone. And we had to figure out a way to get them back.” Father admitted that Mother wants him to have custody of the children, and Mother’s cousin overheard her planning “to get [Father] to get custody of the kids” so that Mother could come over and take care of them.

This testimony meets the clear, cogent and convincing evidence standard of proof that is required in termination cases. There was substantial evidence that Father would allow contact with Mother and that contact would be so harmful to the children as to instantly tilt the scales in favor of terminating Father’s parental rights based on an unremedied and neglectful situation under section 211.447.4(3). Father’s own testimony reveals the irresponsible, unpredictable, dangerous and violent nature of Mother’s behavior. Even though there is no evidence that Mother’s violence or erratic behavior was ever specifically directed at these two children, the trial court need not wait until an incident occurs in order to conclude that Mother poses a significant risk of harm to her children. Moreover, the judgment indicates that several months after these children were taken into protective custody, Mother gave birth to another child who was “born exposed to cocaine,” which further suggests disregard for how her conduct affects her children. There was also ample evidence to demonstrate that if Father were given custody of the children, they would be allowed contact with Mother. Despite the fact that Father obtained an order of protection against Mother, fears what she might do and believes almost nothing she says, he has continued to allow her into his home. He has done so during his visitation periods and at other times, in spite of a court order prohibiting contact between Mother and the children. A parent’s conduct in the past as well as during the period in which the trial court retains jurisdiction over a child can provide good evidence of future behavior. K.A.W., 133 S.W.3d at 9. Here, Father’s conduct up to and including the time of the termination hearing provides good evidence that if he were given custody of the children in the future, then he would permit — or be unable to prevent — contact between them and Mother, even if the court prohibited such contact.

Father contends that he substantially rectified any potentially harmful conditions by cooperating and complying with nearly all of the provisions of the social service plan. Father also argues that he has made better progress towards compliance with the plan and rectifying his circumstances than other parents have made in cases where the termination judgments were reversed on appeal. Although Father may have made significant progress toward compliance with the social service plan, “compliance with a service agreement does not prevent the scales of justice from ‘instantly tilting’ in favor of the findings of the juvenile court.” In re Q.D.D., 144 S.W.3d 856, 861 (Mo.App. S.D.2004) (citing In the Interest of K.D.H., 871 S.W.2d 651, 657 (Mo.App. W.D.1994)). Compliance with a social service plan is merely one factor to consider. S.J.H., 124 S.W.3d at 67. Here, the harmful condition on which termination was based — Father’s continued exposure of his children to a violent person who has exhibited disregard for her children’s welfare — instantly tipped the scales in favor of termination and was not remedied or outweighed by Father’s compliance "with his service plan. Rather, there was ample evidence that despite progress with the plan, Father would not be able to rectify this condition in the future.

Therefore, we conclude that the judgment was supported by substantial evidence, that it was not against the weight of the evidence and that there was clear, cogent and convincing evidence to support the termination of Father’s parental rights under section 211.447.4(3).

Point denied.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.

      . All statutory references are to RSMo 2000.

      . Although the ground on which termination of Father’s rights was based was not alleged in the petition to terminate, Father did not object to any of the above evidence cited by the court in support of that ground, which appears to have been irrelevant to any other issue pleaded in the petition. Nor does he challenge on appeal the discrepancy between the petition and the judgment. Thus, it appears that the issue was tried by implied consent. See In the Interest of 160 S.W.3d 355, 365-66 (Mo. banc 2005) (error to terminate parental rights on grounds not pled in termination petition, unless additional ground is tried by implied consent).

      . Father does not challenge the trial court’s determination that termination is in the children's best interests.


author: PER CURIAM.

text:
    Charles W. BOCK (deceased), through Alice BOCK, Claimant/Respondent/Cross-Appellant, v. BROADWAY FORD TRUCK SALES, INC. Employer/Appellant/Cross-Respondent, and Reliance Insurance Company c/o Illinois Insurance Guarantee Association, Insurer/Appellant/Cross-Respondent, and Second Injury Fund, Additional Party.
    No. ED 84997.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 9, 2005.

      Evans & Dixon, LLC, Mary A. Lindsey, David S. Ware, St. Louis, MO, for Broadway Ford Truck Sales, Inc. and Reliance Insurance Company.
    Robert J. Lenze, St. Louis, MO, for Respondent/Cross/Appellant Charles Bock.
    Jeremiah W. (Jay) Nixon, Attorney General, Kareitha A. Osborn, Assistant Attorney General, St. Louis, MO, for Second Injury Fund.
    Before LAWRENCE E. MOONEY, P.J. and CLIFFORD H. AHRENS, J. and MARY K. HOFF, J.
   PER CURIAM.

This workers’ compensation matter is before us after proceedings before the Labor and Industrial Relations Commission (Commission) upon remand after our earlier opinion in Bock v. Broadway Ford Truck Sales, Inc., 55 S.W.3d 427 (Mo.App. E.D.2001). Broadway Ford Truck Sales, Inc. (Employer) and Reliance Insurance Company c/o Illinois Insurance Guarantee Association (Insurer) appeal, and Alice Bock (Claimant), surviving spouse of the employee, Charles W. Bock (Charles), deceased, cross-appeals from the August 6, 2004 Final Award of the Commission (the 2004 award). In the 2004 award, the Commission found Charles sustained 17.5% permanent partial disability (PPD) as a result of an occupational disease; ordered Employer/Insurer to pay Claimant $19,489.40 in PPD benefits; found Charles was temporarily totally disabled (TTD) from his occupational disease from May 5, 1998, through July 16, 1998; ordered Employer/Insurer to pay Claimant TTD benefits for 10.3 weeks; found the Second Injury Fund (SIF) pursuant to agreement, was liable for 14 weeks or $3,897.88; allowed Claimant’s attorney a fee of 25% of the benefits awarded for necessary legal services; and ordered past due compensation to bear interest. The Commission’s 2004 award also included an “Alternative Award.” We consolidated the parties’ appeals. We vacate and set aside our earlier opinion to the extent it addressed any issue beyond the dismissal of Employer/Insurer’s untimely appeal, and remand this matter to the Commission for the vacating of its 2004 and 2000 decisions, as well as the 1999 award of the Administrative Law Judge (ALJ), and for resolution of Claimant’s claims, as amended.

Charles worked for Employer as a heavy truck mechanic. Charles’s original and amended worker’s compensation claims arose from back injuries he allegedly sustained as the result of a fall at work on April 23, 1998, and movements he performed as a mechanic. By its initial decision issued in 2000 (the 2000 award), the Commission modified and then affirmed a 1999 decision by an ALJ, which denied Claimant’s claim for past medical expenses, future medical care, and TTD, and assessed PPD at 17.5% due to the occupational disease and not due to the accident. Claimant appealed, as did Employer/Insurer. Bock, supra.

In resolving that appeal in 2001, we dismissed Employer/Insurer’s appeal as untimely, Bock, 55 S.W.Sd at 435-36; reversed the PPD decision as going “beyond the issues stipulated for trial and ... [as being] in excess of [the Commission’s] power,” id. at 436; affirmed the denial of past medical expenses and future medical care, id. at 437; reversed the TTD award to the extent the Commission had not addressed TTD “attributable to the occupational disease for the period from May 5, 1998, ... to July 16, 1998,” id. at 438; and affirmed the Commission’s decision regarding the burden of proof, the credibility of a physician, and the denial of Claimant’s motion to submit additional evidence, id. at 438-39. We remanded the cause “to provide [Claimant] an opportunity to present evidence as to [Charles’s] disability,” id. at 436, and remanded the TTD determination due to the absence of a finding of “temporary disability, if any, attributable to the occupational disease for the period” May 5, 1998, to July 16,1998. Id. at 438.

On remand the Commission sent the matter to the ALJ for a hearing at which Claimant could present evidence, and Employer/Insurer could present rebuttal evidence, regarding Charles’s disability. The Commission directed the ALJ to rule on any evidentiary objections. In an order limiting the issues on remand, the ALJ noted the Commission’s order did “not define what specific disability the claimant is allowed to present evidence about” and found TTD is “clearly a disability under the statute, [so] evidence and rebuttal evidence” would be allowed on both TTD and PPD. After that hearing, the Commission issued its 2004 award, which is the subject of this appeal and cross-appeal.

In its 2004 award, the Commission found Charles sustained 17.5% PPD as a result of an occupational disease; ordered Employer/Insurer to pay Claimant $19,489.40 in PPD benefits; found Charles was TTD from his occupational disease from May 5, 1998, through July 16, 1998; ordered Employer/Insurer to pay Claimant TTD benefits for 10.3 weeks; found the SIF, pursuant to an agreement, was liable for 14 weeks or $3,897.88; allowed Claimant’s attorney a fee of 25% of the benefits awarded for necessary legal services; and ordered past due compensation to bear interest. The Commission’s 2004 award also included an “Alternative Award.”

In the “Alternative Award,” the Commission set forth findings it would make if this “Court finds the Commission erred in ... [precluding the consideration of] evidence on issues other than [PPD] and [TTD] from May 5, 1998, through July 16, 1998, or ... the Court changes its previous decision.” In contrast to the findings and conclusions the Commission made in its 2000 and 2004 awards, the Commission stated, in relevant part, that it would find:

[b]ased upon the evidence presented at the remand hearing, ... [Charles] sustained a herniated disc at L3-4 when he slipped and fell on April 23, 1998. The surgeries [Charles] underwent were necessitated by the accident on April 23, 1998. [Charleses diabetes was not a substantial factor in causing the condition of his back or radiculopathy. We would order Employer/Insurer to pay past medical expenses of $57,232.34. We would further order Employer/Insurer to pay [TTD] from May 5, 1998, through July 25, 2000, when Dr. Reynolds released [Charles]. We would further find that [Charles] sustained 25% [PPD] to his low back as a result of his work accident on April 23,1998.

This appeal and cross-appeal followed.

In the first point of the appeal, Employer/Insurer urges the Commission erred and exceeded its jurisdiction in issuing an alternative award in that neither the Workers’ Compensation Act nor the regulations promulgated pursuant to that Act authorize alternative awards by the Commission and such an award constitutes an advisory opinion. Employer/Insurer also contends the law of the case doctrine and collateral estoppel barred the Commission from relitigating, through the alternative award, the issues of medical causation, past medical expenses, TTD for any period other than May 5, 1998, to July 16, 1998, and PPD for the accident.

In the second point of the appeal, Employer/Insurer argues the Commission erred as a matter of law in finding the ALJ’s 1999 award and the Commission’s 2000 award were not final awards and in finding the Court of Appeals, in its 2001 decision, compounded the error by affirming the Commission’s findings regarding medical causation, past medical expenses, and TTD because neither the ALJ’s 1999 award nor the Commission’s 2000 award was issued pursuant to Section 287.510 RSMo 2000 or Section 287.203 RSMo 2000; neither of those awards contained language indicating they were temporary or partial; those awards resolved the entire controversy between the parties, leaving nothing for determination at a later time; and the parties, the ALJ, the Commission, and the appellate court treated those awards as final awards.

In the first point of the cross-appeal, Claimant argues the Commission erred in concluding in its 2004 award that this Court’s 2001 mandate, the doctrine of the law of the case, and collateral estoppel prevented the consideration and resolution of all issues Claimant presented at the remand hearing because exceptions to the law of the case doctrine applied; because the ALJ’s 1999 award and the Commission’s 2000 award were not final awards but instead were temporary or partial awards subject to change, modification, and amendment; and because Claimant filed an amended claim for compensation and presented evidence regarding that amended claim at the remand hearing.

In the second point of the cross-appeal, Claimant contends the Commission erred in its alternative award to the extent the Commission failed to award medical expenses incurred by Charles for treatment before the initial hearing and 1999 award because that failure is inconsistent with all other findings and conclusions in the alternative award, in which the Commission found it was mistaken in its 2000 award and all medical treatment, including the first surgery in July 1998, was, in fact, medically caused by Charles’s April 23, 1998 accident and his heavy truck mechanic work activities.

Before addressing the merits of the points on appeal, we must determine whether subject matter jurisdiction exists. Subject matter jurisdiction may be considered at any time during the proceedings, see Ringeisen v. Insulation Servs., Inc. 589 S.W.2d 621 (Mo.App. E.D.1976), and may not be “conferred by consent or agreement of the parties, by appearance or answer, or by estoppel.” Sodipo v. University Copiers, 23 S.W.3d 807, 809 (Mo. App. E.D.2000).

An appellate court only has jurisdiction to consider an appeal from a final, and not a temporary, Commission award. Bolden v. Schnucks Markets, Inc., 167 S.W.3d 226, 228 (Mo.App. E.D.2005); Schwarzen v. Harrah’s St. Louis Riverport, 72 S.W.3d 223, 224 (Mo.App. E.D. 2002); Chapman v. Didion & Sons Foundry Co., 63 S.W.3d 305, 306-07 (Mo.App. E.D.2001); Remelius v. McCarthy Bros. Co., 28 S.W.3d 491 (Mo.App. E.D.2000); Section 287.495. A final award disposes of the entire controversy between the parties. Schwarzen, 72 S.W.3d at 224; Chapman, 63 S.W.3d at 307.

While, in our 2001 decision, we properly dismissed Employer/Insurer’s appeal as untimely, we erred at that time by addressing the merits of Claimant’s points on appeal because the entire controversy between the parties was not properly resolved by the Commission’s 2000 award, which adopted the ALJ’s 1999 award with modification. The parties acknowledge that PPD issues were not before the ALJ at the time she issued her 1999 award. The transcript of the hearing and record before the ALJ in 1999 reveals that she had before her only a hardship hearing. As the parties acknowledge, a hardship hearing does not encompass PPD issues and does not result in the issuance of a final award that resolves all the controversies between the parties.

The parties have not directed us to, and we have not found, any case addressing the finality of an award issued after a hardship hearing that includes an award of PPD. While, as Employer/Insurer pointed out during argument, there is no statutory prohibition against issuing a final award in resolving issues at a hardship hearing, there is no statutory authority for such an award either. Nor can we condone the transformation of an otherwise non-final award into a final award merely because the award, issued after a hardship hearing, includes a resolution of PPD issues, particularly where, as here, the parties have not either agreed to or had prior notice of and an opportunity to be heard on the PPD issues before their resolution.

This determination, that the 2000 award of the Commission modifying the 1999 award of the ALJ is not final and not appealable based on the available record, finds support in our case law that looks to the record to ascertain whether a non-final Commission award is appealable. For instance, in Jennings v. Crestside Heating & Cooling, 142 S.W.3d 843 (Mo.App. E.D. 2004), we looked to the record to determine whether the employer was actually contesting all liability as the employer argued, or merely the extent and duration of liability, so as to permit an appeal from a temporary award. We concluded the employer was only “disputing the extent and duration of liability, rather than all liability,” and therefore dismissed the appeal for lack of jurisdiction. Id. at 846.

While it is true that the Commission’s 2000 award does not contain an express statement that it is temporary or non-final, and does not contain express language from either statute regarding temporary awards, Sections 287.203 and 287.510, the absence of such language cannot foreclose us from finding the absence of finality in the 2000 award, as well as the 1999 award, under the unique circumstances of this case. Nor does the fact that the parties and the Commission treated the ALJ’s award and the Commission’s 2000 award as final and appealable preclude us from determining it was not final and appealable under the circumstances of this case.

There are two exceptions to the rule that a non-final award of the Commission is not appealable. The first exception allows judicial review of a Commission decision that is in fact an award of permanent total disability (PTD) pursuant to Section 287.200.2. Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 343 (Mo. banc 1991); Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 398 (Mo.App. E.D.1996). That exception is inapplicable here where the relevant award did not include a PTD award under Section 287.200.2, but a PPD award pursuant to Section 287.190. The second exception allows for judicial review of a Commission’s temporary award when the issue is whether the employer is liable for paying any compensation. Schwarzen, 72 S.W.3d at 224. We conclude that this exception does not render appealable the Commission’s 2000 non-final award because Employer/Insurer’s appeal was dismissed as untimely and our 2001 decision was not clearly limited solely to liability issues.

Having found the 2000 award was not appealable, we lacked jurisdiction to address the merits of that appeal. See Sutton v. Vee-Jay Cement Contracting Co., 937 S.W.2d 334 (Mo.App. E.D.1996) (dismissing for lack of jurisdiction an appeal from a non-final Commission award). When a court is without subject matter jurisdiction, an order of that court that does anything but dismiss the matter due to lack of jurisdiction must be set aside, vacated, or reversed. See Randles v. Schaffner, 485 S.W.2d 1, 2-3 (Mo.1972); Heinle v. K & R Exp. Sys., Inc., 923 S.W.2d 461, 464 (Mo.App. E.D.1996); City of Jackson v. Southard, 869 S.W.2d 280, 282 (Mo.App. E.D.1994). As the Missouri Supreme Court has said, “[i]t is elementary that where judicial tribunals have no jurisdiction to act, their proceedings are absolutely void.” Randles, 485 S.W.2d at 2. To the extent the law of the case doctrine is considered a bar to the reconsideration of our 2001 opinion, the Missouri Supreme Court has acknowledged, that “if [the appellate] court upon second appeal finds that it was in error upon the first hearing, [the appellate court] not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice.” Davidson v. St. Louis-San Francisco Ry. Co., 301 Mo. 79, 256 S.W. 169, 170 (1923); accord Reed v. Missouri Mutual Ass’n., 33 S.W.2d 986, 988 (Mo.App. E.D.1930). Accordingly, we set aside and vacate our 2001 decision, except to the extent it dismissed as untimely Employer/Insurer’s appeal. Having found we lacked jurisdiction over the appeal, the subsequent Commission proceedings upon remand should also be vacated.

While addressing our jurisdiction over the appeal from the Commission’s non-final 2000 award, we concluded the ALJ’s 1999 award was not final. Due to our determination the ALJ’s 1999 award was not a final award but a temporary award, the only issue the Commission could address when considering any appeal from the ALJ’s 1999 award was the issue of liability. Wieda v. Stupp Bros., Inc., 52 5.W.3d 602, 603 (Mo.App. E.D.2001). Yet, the Commission’s 2000 award was not limited to the issue of liability and did not explicitly note it was limited to liability issues.

Under the unique circumstances of this case, including the fact Charles is deceased so there is a finite amount of evidence and proceedings that may be presented to address all of the issues posed by Claimant’s claims, as amended, and in an effort to clarify the record so that issues may be fully and properly addressed in fresh proceedings, we will vacate and set aside our 2001 opinion beyond the dismissal of Employer/Insurer’s untimely appeal, and remand this matter to the Commission, which is directed to set aside its 2004 and 2000 awards, and to the extent necessary the ALJ’s 1999 award, and then consider and resolve Claimant’s claims as amended. In view of this disposition, we will not discuss the parties’ points on appeal since they are moot.

Our decision in Bock, supra, to the extent it addressed any issue beyond the dismissal of Employer/Insurer’s untimely appeal is vacated and set aside. This matter is remanded for the Commission to vacate and set aside the 2004, 2000, and 1999 awards, and then to resolve Claimant’s claims, as amended.

      . For convenience, we will refer to these parties together as Employer/Insurer and in the singular throughout this opinion.

      . We refer to the employee by his first name to distinguish him from Claimant. We do not mean any disrespect by using his first name.

      .Charles’s death is unrelated to the injury and disease at issue in this case. Claimant was substituted for Charles during earlier proceedings. See Bock, 55 S.W.3d at 436.

      . The 1994 versions of these statutes, which were in effect at the time Employee’s claims were filed and the ALJ issued her decision, and the 2000 versions of these statutes, which were in effect at the time of the Commission's 2000 decision, are identical. For convenience, we will cite to the 2000 versions of these statutes. All subsequent statutory citations will be to RSMo 2000 unless otherwise specified.

      . Notably, by its terms Section 287.203 clearly does not apply in this proceeding because Employer/Insurer did not provide and then terminate compensation prior to Claimant’s request for a hardship hearing.

      . We do not consider the "Alternative Award” as a resolution of Claimant's claims, as amended, because that award is an advisory opinion, which the Commission lacks jurisdiction to issue, on disputes not then before the Commission. See Wasinger v. Labor and Indus. Relations Comm'n, 701 S.W.2d 793, 794 (Mo.App. E.D. 1985).


author: GLENN A. NORTON, C.J.

text:
    Michael D. SHANKS, Appellant, v. James PURKETT, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.
    No. ED 86071.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Michael D. Shanks, Bonne Terre, MO, appellant acting pro se.
   GLENN A. NORTON, C.J.

Appellant, Michael Shanks, appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

This Court has a duty to initially determine its jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Buff v. Roper, 155 S.W.3d 811, 812 (Mo.App. E.D.2005). Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); Fleming v. Rowley, 148 S.W.3d 855 (Mo.App. E.D.2004).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has filed a response asking this Court to convert his appeal to a petition for writ of habeas corpus. We decline to do so. A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., Concur.


text:
    Edgar E. LIM, Appellant, v. Ganesh KRISHNAMURTH and Padma Ganesh, Respondents.
    No. ED 86197.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.
    Andrew W. Neill, St. Louis, MO, for respondents.
    Priscilla J. Lim, St. Louis, MO, for appellant.
   GLENN A. NORTON, C.J.

Edgar Lim (Appellant) appeals from the trial court’s judgment dismissing his cause of action as barred by the statute of limitations. Because there is no final, appeal-able judgment, we dismiss the appeal.

On October 30, 2002, Appellant filed a petition against Respondents, seeking to recover payment for legal services rendered. The petition was filed in two counts. Count I sought to recover for suit on account, while Count II sought to recover for unjust enrichment. On October 18, 2004, Respondents filed a counterclaim against Appellant in four counts: (1) Count I, defamation; (2) Count II, tortious interference with immigration and naturalization rights; (3) Count III, prima facie tort; and (4) Count IV, breach of fiduciary duty. On October 25, 2004, the trial court granted Respondents’ motion to dismiss Appellant’s cause of action, concluding that it was barred by the statute of limitations. Appellant appealed to this Court.

Respondents have filed a motion to dismiss the appeal in which they assert the appeal is premature. Respondents argue that the October 25, 2004, judgment is not ripe for appeal, because their counterclaim is still pending in the trial court. Appellant has filed two separate responses. In these responses, Appellant essentially concedes that the Respondents’ counterclaim is still pending in the trial court. However, Appellant appears to argue that the October 25, 2004 judgment is still appeal-able, because the counterclaim involves completely separate and different issues, which are independent of the issue in this appeal.

An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (MoApp. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). The trial court may certify for appeal a judgment as to fewer than all claims by expressly designating that “there is no just reason for delay.” Id.

Here, the parties agree that not all claims in the case have been adjudicated. Therefore, there is no final, appealable judgment. Appellant’s argument that the counterclaim issues are separate and independent goes only to whether the trial court should certify the October 25, 2004 judgment for appeal under Rule 74.01(b). The record does not show that the trial court ever certified there is no just reason for delay under Rule 74.01(b), nor does it show that Appellant has ever requested it.

The Respondents’ motion to dismiss is granted. The appeal is dismissed without prejudice for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., Concur.

      . Respondents alternatively argue that if there is an appealable judgment, the notice of appeal is untimely. We need not reach this issue.


text:
    Creig WASERMAN, Appellant, v. James PURKETT, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.
    No. ED 86233.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 9, 2005.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Creig Waserman, Bonne Terre, MO, appellant acting pro se.
   GLENN A. NORTON, C.J.

Appellant, Creig Waserman, appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

This Court has a duty to initially determine its jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Buff v. Roper, 155 S.W.3d 811, 812 (Mo.App. E.D.2005). Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); Fleming v. Rowley, 148 S.W.3d 855 (Mo.App. E.D.2004).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has filed a response asking this Court to convert his appeal to a petition for writ of habeas corpus. We decline to do so. A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


author: JAMES K. PREWITT, Judge.

text:
    In the Interest of A.H. Y.O., Appellant, v. Barton County Juvenile Office, Respondent.
    No. 26477.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 11, 2005.

      Brandon B. Fisher, Nevada, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Nicole L. Loethen, Asst. Atty. Gen., for respondent.
   JAMES K. PREWITT, Judge.

Y.O. (“Mother”) appeals the termination of her parental rights to her daughter, A.H. (“Child”), born January 6, 2002. Child’s biological father, C.H., consented to the termination of his parental rights in November of 2003 and is not a party to this appeal.

Custody of Child was taken by the Division of Children’s Services (“Division”) on January 14, 2002. On November 20, 2003, the Division filed a Petition for Termination of Parental Rights in the juvenile division of the Circuit Court of Barton County. The petition alleged that Child “has been in foster care for at least fifteen of the most recent twenty-two months” and that Child had been “abused or neglected” in that Mother “was abusing prescription medications and using marijuana during the time period when the child was in her direct care.” A hearing on the petition to terminate was held on March 24, 2004. The trial court filed a judgment containing its findings and conclusions on May 10, 2004, and ordered the termination of Mother’s parental rights. Mother appeals, presenting eight points relied on. We find Mother’s first point to be disposi-tive.

Point I asserts that the trial court erred in accepting and relying upon a written report compiled and submitted by the Children’s Division regarding its investigation and social study, as the trial court failed to comply with the procedure as mandated by section 211.455, RSMo 2000. The statute requires that “within thirty days after the filing of the petition, the juvenile officer shall meet with the court[J” Here, the record shows no such meeting.

Section 211.455 also states that “[t]he court shall order an investigation and social study” in cases involving the involuntary termination of parental rights and directs that “[t]he investigation and social study shall be made by the juvenile officer, the state division of family services or a public or private agency authorized or licensed to care for children or any other competent person, as directed by the courtf.]” In this case, the written report of the “investigation and social study,” was prepared by the Children’s Division and filed simultaneously with the petition for termination on November 20, 2003. The report was signed by Division personnel on September 30, 2003.

Mother contends that “the completion of these documents [investigation and social summary] without providing the Court the opportunity to select the appropriate, unbiased organization to complete the study[,] prejudiced [Mother].” Mother alleges that “allowing the same entity filing to terminate a parent’s rights to complete the investigation and social summary without Trial Court order, and the acceptance of those documents by the Trial Court, was prejudicial error.”

The report to which Mother objected is entitled “Investigation and Social Summary.” Under “Reason for Placement,” the report alleges that Child was found to be in need of care on January 14, 2002, due to Mother’s abuse of “prescription medication while providing direct care for [Child] causing her judgment to be impaired leaving [Child] without proper care, custody, or support[J” The report documents services provided to assist Mother and her efforts to comply with the service plan, as well as visitation schedules, employment and housing histories, counseling and therapy reports, and drug screening test results. Concluding the report, DFS recommended “a petition for Termination of Parental Rights ... be filed and that [Child] be freed for adoption.”

The report contained a substantial amount of information unfavorable to Mother and extraneous to the contentions cited by the Division as justification for its continued jurisdiction over Child. In addition to numerous references to Mother’s ongoing desire to continue a relationship with Child’s father, to which the Division seemingly objected but was not alleged as a ground for termination, the report contained descriptions of incidents involving Mother’s allegedly unmanaged anger and reports that Child threw intense tantrums, the cause of which was ascribed to Mother’s visitation with Child. Much of this information was provided via narratives written by DFS personnel reporting communications between DFS and various therapists and counselors.

In a January 7, 2004 docket entry, the court noted: “Court will not review the Investigation and Social Summary until testimony presented and admitted as evidence.” On January 8, 2004, Mother filed a motion in limine contesting the filing of the investigation and social study prior to the establishment of statutory grounds for termination, claiming that the filing of such report was prejudicial to Mother and requesting an order prohibiting the submission of the report until so ordered by the court. At the termination hearing on March 24, 2004, counsel for Mother objected to the admission of the investigation and social summary, admitted as Exhibit 15, and the court overruled the objection.

In 1959, the General Assembly added seven new sections to chapter 211 (renumbered as §§ 211.441 to 211.511) relating to neglected and delinquent children. In the Interest of T.P.S., 595 S.W.2d 320, 321 (Mo.App.1980). Section 211.491, RSMo 1959, read:

211.491. Social investigation and report to court in termination case.— In all proceedings for termination of parental rights of a child, except in cases where the parents have consented to the termination or have abandoned the child, an investigation and social study shall be made by the juvenile officer, the state division of welfare, or other public or private agency authorized or licensed to care for children as directed by the court and a written report shall be made to the court to aid the court in determining whether the termination is in the best interest of the child, and it shall include such matters as the parental background, the fitness and capacity of the parents to discharge parental responsibilities, the child’s home, present adjustment, physical and mental condition and such other facts as are pertinent to the determination.

“In 1978, eight sections pertaining to termination of parental rights were repealed, and eleven new sections ‘relating to the same subject’ were enacted.” T.P.S., 595 S.W.2d at 321. Section 211.491 was one such section repealed, and it was enacted as section 211.472, RSMo 1978, which read:

211.472. Social investigation and report to court, contents — access to reports and evaluations. In all proceedings for termination of parental rights of a child, except those filed under subdivision (1) of subsection 2 of section 211.447 [“When the parent has consented in writing to the termination of his parental rights”], an investigation and social study shall be made by the juvenile officer, the state division of family services or other public or private agency authorized or licensed to care for children as directed by the court, and a written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child’s home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination. Attorneys representing parties before the court shall have access to the written report. All ordered evaluations and reports shall be made available to the attorneys representing parties before the court at least fifteen days prior to the hearing.

Upon its enactment in 1978, section 211.472, RSMo 1978, contained new language providing for access to the written report of the investigation and social study by “[attorneys representing parties before the court.” In addition, this section mandated that “all ordered evaluations and reports” be made available to such attorneys at least fifteen days prior to hearing.

Section 211.472, RSMo 1978, was repealed in 1985 and replaced with section 211.455, RSMo Supp.1985. In the Interest of B.M.P., 704 S.W.2d 237, 251 (Mo.App. 1986). Section 211.455, RSMo 2000, remains identical to the 1985 enactment and reads:

211.455.Procedure after filing of petition — determination of service— extension of time for service, when— investigation. — 1. Within thirty days after the filing of the petition [for termination], the juvenile officer shall meet with the court in order to determine that all parties have been served with summons and to request that the court order the investigation and social study.
2. If, at that time, all parties required to be served with summons have not been served, the court, in its discretion, may extend the time for service if the court finds that service may be forthcoming and that the best interests of the child would be served thereby.
3. The court shall order an investigation and social study except in cases filed under section 211.444 [when parent consents to termination]. The investigation and social study shall be made by the juvenile officer, the state division of family services or a public or private agency authorized or licensed to care for children or any other competent person, as directed by the court, and a written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child’s home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination. Parties and attorneys or guardians ad litem or volunteer advocates representing them before the court shall have access to the written report. All ordered evaluations and reports shall be made available to the parties and attorneys or guardians ad litem or volunteer advocates representing them before the court at least fifteen days prior to any dispositional hearing.

Further references to this report are found in other sections of the Juvenile Code. Section 211.459 refers to section 211.455,stating, in part: “1. Within thirty days after the juvenile officer and the court have met pursuant to section 211.455,the court shall hold the disposi-tional hearing_” Section 211.477.1, RSMo 2000, now provides, in pertinent part:

If, after the dispositional hearing, the court finds that one or more of the grounds set out in section 211.447 exists ... and that it is in the best interests of the child, the court may terminate the rights of parent in and to the child. After ordering termination and after consideration of the social study and report, the court shall transfer legal custody....

In addition to expanding access of “[a]ll ordered evaluations and reports” to parties, guardians ad litem and volunteer advocates, two new subsections were added. Subsection 1 now mandates a thirty-day time period within which the “juvenile officer shall meet with the court to determine that all parties have been served with summons and to request that the court order the investigation and social study.” Subsection 2 allows for an extension of time to serve appropriate parties to termination proceedings.

The written report of the investigation and social study contemplated by section 211.455 is mandatory, In the Interest of T.G., 965 S.W.2d 326, 332 (Mo.App. 1998), and is intended to aid the court “in determining whether termination of parental rights is in the child’s best interest.” In the Interest of S.J., 849 S.W.2d 608, 612 (Mo.App.1993). However, section 211.455 does not authorize the use of the report in determining whether there exists one of the statutory grounds for termination. In the Interest of J.A.R., 968 S.W.2d 748, 750-51 (Mo.App.1998).

A similar issue was brought on appeal previously in In the Interest of A.D.G., 28 S.W.3d 717 (Mo.App.2000). There, appellant contended that the trial court erred in failing to comply with the requirement that the juvenile officer meet with the circuit court within thirty days following the filing of the petition for termination. Id. at 718. There was no resolution reached as to this issue, as the Western District concluded that appellant’s argument was without merit because appellant did “not state how he was prejudiced if, in fact, the meeting did not occur.” Id.

In construing statutes, generally, “shall” is “used to express compulsion, obligation or necessity!,]” and “mandates an action.” State ex rel. Hunter v. Lippold, 142 S.W.Sd 241, 244 (Mo.App.2004). This interpretation is not always applied, as it has been held that when a statute provides consequences upon a failure to comply, the statute is mandatory and, conversely, when a statute does not provide consequences for a failure to comply, it is held to be directory. Rundquist v. Dir. of Revenue, 62 S.W.Bd 648, 646 (Mo.App.2001). However, “the presence or absence of a penalty provision is ‘but one method’ for determining whether a statute is directory or mandatory.” Bauer v. Transitional Sch. Dist. of the City of St. Louis, 111 S.W.3d 405, 408 (Mo.banc 2003), quoting Southwestern Bell Tel. Co. v. Mahn, 766 S.W.2d 443, 446 (Mo.banc 1989). “Indeed, [t]he absence of a penalty provision does not automatically override other considerations.” Id. “Whether the statutory word ‘shall’ is mandatory or directory is primarily a function of context and legislative intent.” Id. Another consideration in this determination is the effect of ruling one way or the other. Citizens for Envtl. Safety, Inc. v. Mo. Dept. of Natural Resources, 12 S.W.3d 720, 730 (Mo.App.1999).

In cases involving the involuntary termination of parental rights, the Juvenile Code “is a complete code within itself, and proceedings thereunder must be in strict accordance with its terms.” In re S M W, 485 S.W.2d 158, 164 (Mo.App. 1972). Exercise of the court’s power to terminate parental rights must be in accordance with due process as fixed by law, and such a termination is legally effectual only when specified procedures are punctiliously applied. Id.

Prior to the 1985 enactment, there was no direction that the juvenile officer and the court meet within thirty days of the filing of the termination petition. Sections 211.491, RSMo 1959 and 211.472, RSMo 1978 merely directed that an investigation and social study shall be made by the juvenile officer as directed by the court in all proceedings for termination. In statutory construction, a court’s primary goal is to ascertain the intent of the General Assembly from the language used, and to give effect to that intent, considering the plain and ordinary meaning of the language employed. In the Interest of C.AD., 995 S.W.2d 21, 29 (Mo.App.1999). “[T]he presumption is that the legislature did not intend for any part of a statute to be without meaning or effect.” In the Interest of R.I.H., 842 S.W.2d 200, 202 (Mo.App.1992).

Here, we consider the inclusion of subsection 1 upon this statute’s enactment in 1985 in context with the admonishment that proceedings under the Juvenile Code be punctiliously applied, as stated in S.M.W., supra. In this instance, there was no meeting between the juvenile officer and the court and no direction by the court regarding which agency would be assigned to investigate and prepare the report. The intent of the legislature obviously was not to relegate this decision solely to the Children’s Division.

The juvenile court “is a court of limited jurisdiction with only such powers as are expressly conferred by the juvenile code.” In the Interest of M.K.R., 515 S.W.2d 467, 470 (Mo.1974). “The legislature has responsibly exercised its prerogative by wisely refraining from vesting juvenile courts with broad, unlimited authority to intervene between parent and child.” In the Interest of Dimmitt, 560 S.W.2d 368, 371 (Mo.App.1977). “Severance of the parent-child relationship by act of law is an exercise of awesome power and demands strict and literal compliance with the statutory authority from which it is derived.” In the Interest of B.R.S., 937 S.W.2d 773, 774 (Mo.App.1997). Compliance with statutory requirements is mandatory. Id.

As this report is authorized under section 211.455 to be considered in adjudicating whether termination of parental rights is in the best interest of the child, In re S.P.W., 707 S.W.2d 814, 820 (Mo.App. 1986), we find that the agency’s preparation and submission of this report prior to the trial court’s selection of the agency as the preparer and submitter is in conflict with the intent of section 211.455. Point I has merit and is dispositive.

The judgment is reversed.

GARRISON, P.J., and RAHMEYER, J., concur.


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gerald SANDERSON, Defendant-Appellant.
    No. 26412.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 11, 2005.

      Amy M. Bartholow, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Gerald Sanderson (“Defendant”) was charged by information with committing the class B felony of possessing, with intent to distribute, more than five grams of marijuana. See § 195.211. By amended information, the State also alleged that Defendant was a prior and persistent offender. See § 558.016. At the commencement of the trial, the judge found Defendant to be a prior offender beyond a reasonable doubt. After the jury found Defendant guilty of the charged offense, the trial court determined punishment and sentenced Defendant to a fifteen-year term of imprisonment. See § 557.036.4(2).

This appeal arises out of a traffic stop that took place on 1-44 on January 21, 2004. Defendant was riding as a passenger in a blue Buiek sedan driven by Dennis Vargas (“Vargas”). The car was stopped for speeding by Missouri State Highway Patrol Corporal Gary Braden (“Cpl. Bra-den”). During this stop, Cpl. Braden discovered 10 pounds of marijuana in the vehicle’s trunk. After the marijuana was found, Defendant and Vargas were arrested. When Defendant was later searched at Troop D headquarters by Cpl. Braden, another 13.9 grams of marijuana was found in a baggie hidden in the crotch of Defendant’s pants.

Defendant and Vargas were each charged with possession of a controlled substance with intent to distribute. Vargas pled guilty and was sentenced to prison. He was called as a witness at Defendant’s trial. Vargas testified that Defendant knew nothing about the marijuana found in the trunk and that the 13.9 grams found in Defendant’s pants was for personal use only. The jury obviously did not believe Vargas’ testimony. The only issue on appeal is whether the trial court erred in overruling Defendant’s motion for judgment of acquittal at the close of all of the evidence. He claims the evidence was insufficient to establish beyond a reasonable doubt that: (1) he was aware of or exercised control over the 10 pounds of marijuana found in the Buick’s trunk; or (2) he intended to distribute 13.9 grams of marijuana found in his pants after he was arrested. We affirm.

I. Standard of Review

When reviewing the sufficiency of the evidence to support a criminal conviction, we give great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). In the case at bar, the issues of witness credibility and reliability were for the jury to decide. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). Therefore, we accept as true all evidence tending to prove Defendant’s guilt, together with inferences favorable to the State that can be reasonably drawn therefrom. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We disregard all contrary evidence and inferences. Id. The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found that Defendant was guilty beyond a reasonable doubt. State v. Webber, 982 S.W.2d 317, 324 (Mo.App.1998).

Defendant initially filed a motion for judgment of acquittal at the close of the State’s case. After the State rested, Vargas was Defendant’s only witness. The State had no rebuttal evidence, and Defendant renewed his motion for judgment of acquittal at the close of all the evidence. “When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State’s case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant’s case.” State v. Rivers, 554 S.W.2d 548, 550 (Mo.App.1977); see State v. Parcel, 546 S.W.2d 571, 573 (Mo. App.1977). Therefore, as we review the sufficiency of the evidence to support Defendant’s conviction, we will consider any evidence favorable to the State that was elicited from Vargas during Defendant’s case.

II. Summary of the Favorable Evidence Presented at Trial

The State’s evidence in this case consisted of testimony from Cpl. Braden; photographs of the drugs, air freshener and other items seized at the scene; a videotape of the traffic stop; and a lab report confirming that the green, leafy substance found in the trunk and in Defendant’s pants was marijuana. As noted above, Defendant’s evidence consisted solely of Vargas’ testimony. The following is a summary of the evidence favorable to the jury’s verdict.

Cpl. Braden’s Testimony

Cpl. Braden is a road and canine officer with the Missouri State Highway Patrol. He had received specialized training in drug interdiction and the use of a drug-detecting dog because 1-44 is often used as a route to transport drugs from the southwestern to the northeastern part of the United States. This portion of the interstate highway system has been described as a “drug pipeline” because this road is the route of choice for drug couriers.

At 11:00 a.m. on January 21, 2004, Cpl. Braden was parked on the eastbound shoulder of 1-44 near the 52-mile marker in Lawrence County, Missouri. He was accompanied by his drug dog. The officer was using the radar device in his car to check the speed of eastbound traffic. He observed a blue Buick Park Avenue with a Texas license plate that was traveling 75 miles per hour in a 70 mile per hour zone. When Cpl. Braden pulled off of the shoulder, the Buick slowed drastically. Its speed dropped from 75 miles per hour to between 60 and 63 miles per hour. Cpl. Braden followed the Buick for three or four miles, observing the vehicle. The Buick weaved continuously in its lane as it traveled east. At one point, the car crossed the fog line and drove partially onto the shoulder of the road. Cpl. Bra-den became concerned that the driver was sleepy or intoxicated and might cause an accident, so he turned on his emergency lights and initiated a traffic stop. Turning on the emergency lights automatically activated a video camera inside the patrol car and created a video and audio recording of the traffic stop.

As Cpl. Braden approached the Buick, he observed a driver and a passenger sitting in the vehicle’s front seats. When the driver rolled his side window down, Cpl. Braden smelled the “very very strong odor of air freshener coming from inside the car.” This made Cpl. Braden suspicious that the Buick contained marijuana because the use of heavy air freshener is most prevalent in cars transporting this controlled substance. When the officer looked inside the car, he saw a bottle of air freshener in the console between the front seats. The driver was unable to produce a license because he had forgotten to bring it from his home in south Texas. He was able to produce a Texas insurance card, which identified him as Vargas.

Cpl. Braden asked Vargas to get out of his vehicle and come back to the patrol car for a computer check of his driver’s license. Cpl. Braden instructed Vargas to sit in the front passenger seat of the patrol car. Vargas opened the door, but he remained standing outside the car and asked if he could remain there. Cpl. Braden denied the request for reasons of officer safety, cold temperature and road noise. Vargas sat down in the patrol car, but he left the car door open. At Cpl. Braden’s request, Vargas finally shut the door. When he did so, Cpl. Braden smelled the very strong odor of marijuana on Vargas’ person. The officer’s dog also began giving indications that the scent of marijuana was present in the car.

Once Vargas was inside the patrol car, he began talking very fast, cracking jokes and jumping from one topic of conversation to another. Vargas said he lived in San Angelo, Texas, and was headed to St. Louis, Missouri, to spend a week there with his passenger’s family. When Cpl. Braden asked what the passenger’s name was, however, Vargas was only able to identify the person as “Gerald.” Vargas did not know Defendant’s last name and had only known him about three weeks. Vargas did not know the names of any members of Defendant’s family, and he did not know where they were going to stay in St. Louis. He only knew that Defendant had aunts, uncles or cousins in that town. Although it was only January 21st, Vargas also said he had received his income tax refund and was using that money to pay for the trip. Cpl. Braden found these statements suspicious because: (1) San Angelo is only 200 miles from the Mexican border and is considered a source city for drugs coming from Texas that are transported to St. Louis, Missouri, on 1-44; and (2) in prior drug transportation cases, he had encountered the same situation where persons traveling together did not really know much about each other.

After running the license check on Vargas, Cpl. Braden went back to the Buick to speak with Defendant. He produced an identity card which showed that he resided in Phoenix, Arizona. Defendant said he and Vargas were headed to St. Louis to spend the weekend with Defendant’s family and were returning to Texas on Sunday. Defendant was very vague and brief in communicating any details of the trip to Cpl. Braden. Furthermore, Defendant’s statement that they intended to leave St. Louis on Sunday conflicted with Vargas’ account that he and Defendant were going to spend a week in St. Louis together. Cpl. Braden also noted that Phoenix, Arizona, is another source city for drugs that are transported through Missouri on 1-44.

When Cpl. Braden returned to his patrol car, he told Vargas about smelling the odor of marijuana on his person. For the first time during the traffic stop, Vargas became very quiet. He then admitted that he and Defendant had smoked marijuana on the trip from Texas. Vargas denied that he had any contraband in his vehicle, but he acknowledged that he and Defendant each had one piece of luggage in the trunk. When Cpl. Braden asked to search the Buick, Vargas consented.

After three other highway patrol troopers arrived and began watching Vargas and Defendant, Cpl. Braden searched the Buick. He found no illegal substances in the passenger compartment, but he did smell the odor of marijuana inside the vehicle. When Cpl. Braden moved to the trunk area, he observed three bags: (1) a blue tote bag sitting beside a large speaker; (2) a black suitcase belonging to Vargas; and (3) a green-and-tan duffle bag belonging to Defendant. Vargas was sitting in the patrol car at that time, observing the search. He asked the trooper watching him if the luggage in the trunk would be opened. Upon receiving an affirmative reply, Vargas told the trooper to tell Cpl. Braden that he should open the bag beside the speaker. Ten pounds of marijuana were found inside the blue tote bag. This is considered to be a “distribution amount” because it is too much for a person to use in a short period of time. The marijuana was packaged in 10 vacuum-sealed clear plastic bags. When Cpl. Braden opened the blue tote bag, he smelled the slight odor of marijuana even though the material had been packaged in vacuum-sealed bags.

As soon as the marijuana in the blue tote bag was discovered, Vargas made the following statement: “What exactly is considered federal time or state time around here as far as weed — how does that law work? What are we looking at? How does the laws work around here? Is that just state time?” A few moments later, Vargas was inquiring about the type and class of offense with which he might be charged. He then said: “It’s not like we f_had a lot.”

Shortly after the marijuana was discovered in the trunk, Vargas and Defendant were arrested and transported to Troop D headquarters in Springfield, Missouri. Once there, Defendant was searched because he had admitted having a baggie of marijuana on his person while being transported from the scene. Cpl. Braden took Defendant to the restroom and retrieved the bag, which had been hidden in the crotch area of Defendant’s pants. The marijuana in the baggie weighed 13.9 grams. If no other marijuana had been discovered, this amount of marijuana would be more typical of a personal use amount. Since marijuana is sold by the gram, however, this amount could be distributed.

The Buick was taken to the Troop D garage, and photographs were taken of the car’s passenger compartment and trunk. Later laboratory analysis confirmed that the 10 packages of plant matter found in the blue tote bag and in the single baggie removed from Defendant’s pants were marijuana.

Vargas’ Testimony

Vargas had lived in San Angelo, Texas, for about 15 years. He was involved in distributing marijuana around Texas. He became acquainted with Defendant, who moved to San Angelo a few weeks before January 21, 2004, because them girlfriends knew each other.

Prior to the trip to St. Louis, Vargas picked up a batch of marijuana weighing over 10 pounds that he was supposed to deliver “somewhere.” Vargas expected to make $200 per pound for delivering the marijuana. This drug sold for $500 per pound in Texas, but it was worth more in other states. Vargas packaged the marijuana in 10 vacuum-sealed bags, which he placed in the blue tote bag. He retained a small amount, which he claimed was for “personal use” only, in one individual baggie. He placed the tote bag in the trunk of the Buick. Even though the plastic bags in the blue tote bag were sealed, the marijuana created a detectable smell inside the car. Vargas claimed that he tried to deliver the marijuana on the evening of January 19th and again on the morning of January 20th, but he was unable to do so. Vargas also claimed that, because he was unable to deliver the marijuana, he intended to leave the drugs in the car while he and Defendant spent a week in St. Louis together and then return it to the person from whom he got it. Vargas refused, however, to disclose the identity of the person from whom he obtained the marijuana or the identity of the person to whom he was supposed to deliver the drugs.

Around 8:00 a.m. on January 20th, Defendant walked to Vargas’ apartment and loaded his bag in the trunk of the Buick. The blue tote bag and Vargas’ black suitcase were already in the trunk at that time. The pair spent the night at a motel in Oklahoma City, Oklahoma, on the evening of the 20th before resuming their trip to St. Louis the next morning. Vargas and Defendant both smoked marijuana during this segment of the trip. When Cpl. Braden initiated the traffic stop, Vargas handed the small baggie of marijuana to Defendant because Vargas figured he would be the one taken out of the car and questioned.

The jury deliberated only 18 minutes before returning a verdict finding Defendant guilty of possession of more than five grams of marijuana with intent to distribute. This appeal followed.

III. Discussion and Decision

Section 195.211 makes it unlawful “for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.” A violation of this section involving more than five grams of marijuana is a class B felony. Id. In order to convict Defendant of violating this statute, the State was required to prove the following elements: (1) conscious and intentional possession of the marijuana, either actually or constructively; (2) awareness of the presence and nature of the substance; and (3) intent to distribute it. See State v. Gonzalez, 108 S.W.3d 209, 211 (Mo.App.2003). Both possession and knowledge can be proven through circumstantial evidence. State v. Kerns, 85 S.W.3d 73, 76 (Mo.App.2002).

Defendant argues the evidence was insufficient to establish beyond a reasonable doubt that: (1) he was aware of or exercised control over the 10 pounds of marijuana found in the Buick’s trunk; or (2) he intended to distribute 13.9 grams of marijuana found in his pants after he was arrested. For the reasons set forth below, we conclude that the evidence was sufficient for the jury to find that Defendant constructively possessed the 10 pounds of marijuana found in the trunk of the Buick. Therefore, it is unnecessary to reach Defendant’s alternative argument that he did not intend to distribute the marijuana which was found was in his actual possession.

Constructive possession exists when a person has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. § 195.010(34); State v. Booth, 11 S.W.3d 887, 891 (Mo.App.2000). The State may establish constructive possession by proving that the defendant had access to and control over the premises where the substance was found. State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992). “A defendant’s exclusive control over the premises is sufficient to raise an inference of possession and knowledge. However, joint control of the premises requires further evidence to prove the defendant knew the substance was present and had it under his control.” State v. Villaneuva, 147 S.W.3d 126, 130 (Mo.App.2004) (citation omitted).

Here, Vargas and Defendant were both in the Buick where the marijuana was found. In a case like this one involving joint control of an automobile, “a defendant is deemed to have both knowledge and control of items discovered within the automobile, and, therefore, possession in the legal sense, where there is additional evidence connecting him with the items.” State v. Mickle, 164 S.W.3d 33, 43 (Mo.App.2005). This additional evidence must demonstrate sufficient incriminating circumstances to permit the inference of a defendant’s knowledge and control over the controlled substance. State v. Bacon, 156 S.W.3d 372, 378 (Mo. App.2005); State v. Hendrix, 81 S.W.3d 79, 83 (Mo.App.2002). Additional incriminating circumstances that will support an inference of knowledge and control include, inter alia, the following:

1. Finding a large quantity of marijuana in the Buick. State v. Sours, 946 S.W.2d 747, 752 (Mo.App.1997); State v. Keeper, 787 S.W.2d 887, 890 (Mo.App.1990).
2. Easy accessibility to the drugs. State v. Gonzalez, 108 S.W.3d 209, 211-12 (Mo.App.2003).
3. The odor of marijuana in the car. Id. at 212; State v. Fuente, 871 S.W.2d 438, 442 (Mo. banc 1994).
4. The presence of defendant’s personal belongings in close proximity to the marijuana. State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992); Sours, 946 S.W.2d at 752.
5. Making false statements in an attempt to deceive the police. State v. Farris, 125 S.W.3d 382, 388 (Mo. App.2004).

In determining whether the State has proven sufficient additional incriminating circumstances, we must consider the totality of the circumstances. Gonzalez, 108 S.W.3d at 212. We find that all of the additional incriminating factors listed above were present in the case at bar.

First, 10 pounds of marijuana were found in the Buick’s trunk. This quantity of marijuana is typically distributed, rather than kept for personal use. The inference that this marijuana was intended for distribution also is supported by the following evidence: (1) Vargas admitted that he regularly distributed marijuana in Texas; (2) both Vargas and Defendant lived in source cities for drugs transported to St. Louis on 1-44; and (3) the marijuana was packed in 10 separate plastic bags, each weighing approximately one pound.

Second, the evidence was sufficient for the jury to find that Defendant had easy access to the marijuana. It was being kept in the trunk in a zippered tote bag with no lock on it. Vargas testified that Defendant placed his own luggage in the Buick’s trunk on the morning of January 20th. Furthermore, the jury could have disbelieved Vargas’ testimony that Defendant did not remove his own luggage from the trunk when the pair stopped for the night in Oklahoma City. Vargas and Defendant both smoked marijuana during the trip from Texas. More importantly, as soon as the marijuana was discovered, Vargas made the following statement: <cWhat exactly is considered federal time or state time around here as far as weed— how does that law work? What are we looking at? How does the laws work around here? Is that just state time?” (Italics added.) A few moments later, Vargas was inquiring about the type and class of offense with which he might be charged. He then said: “It’s not like we f._had a lot.” (Italics added.) On each occasion, Vargas referred to himself and Defendant collectively, which provides ample support for the jury’s conclusion that Defendant had both knowledge of, and control over, the marijuana found in the car. This inference is buttressed by the fact that nearly 14 grams of marijuana were found on Defendant’s person after he was arrested.

Third, the odor of marijuana could be smelled throughout the automobile. The odor was so strong in the passenger compartment that Vargas and Defendant used copious amounts of air freshener in an attempt to mask the smell, which supports the inference that Defendant was knowingly transporting marijuana. See State v. Garza, 853 S.W.2d 462, 464 (Mo.App.1993). Cpl. Braden and Vargas also testified that the 10 pounds of marijuana in the blue tote bag emitted a detectable odor, despite being packed in vacuum-sealed bags. The jury could have inferred that Defendant smelled this distinctive odor when he placed his duffle bag in the trunk.

Fourth, Defendant’s duffle bag was found in close proximity to the blue tote bag of marijuana when Cpl. Braden searched the trunk. As our Supreme Court noted in State v. Purlee, 839 S.W.2d 584 (Mo. banc 1992), “[t]he presence of a large quantity of drugs coupled with ready access to the drugs tends to show conscious possession.” Id. at 588.

Fifth, false statements were made in an effort to deceive the police. Cpl. Braden testified that Vargas said he was going to spend a week in St. Louis with Defendant even though they had just recently met and Vargas did not know Defendant’s last name. Vargas also had no idea where or with whom he was supposed to stay in St. Louis, and he lied about the source of the money being used to finance the trip. When Cpl. Braden questioned Defendant out of Vargas’ presence, Defendant said their trip was only supposed to last until the following Sunday, January 25th. He gave vague and brief responses to Cpl. Braden’s questions about the details of the trip. Based on this evidence, the jury could have concluded that the story being told by Vargas and Defendant about vacationing together in St. Louis was simply not believable.

After considering the totality of the circumstances, we conclude that the State presented sufficient evidence of additional incriminating circumstances to permit the inference that Defendant had knowledge of, and control over, the 10 pounds of marijuana found in the Buick’s trunk. Since the State’s evidence was sufficient to make a submissible case that Defendant constructively possessed this controlled substance, the trial court correctly overruled Defendant’s motion for judgment of acquittal filed at the close of all the evidence. Therefore, Defendant’s point on appeal is denied, and the trial court’s judgment is affirmed.

PARRISH, P.J., and BARNEY, J„ concur.

      . All references to statutes are to RSMo Cum. Supp. (2004).

      . A duplicate of the videotape was admitted in evidence as State's Exhibit A and played in its entirety for the jury. The traffic stop lasted approximately 30 minutes.

      . Cpl. Braden testified that 10 pounds of marijuana is a distribution amount. Therefore, if Defendant is found to have constructively possessed the 10 pounds of marijuana found in the trunk, intent to distribute may be inferred from the amount of the drug that was seized. See State v. Fox, 882 S.W.2d 214, 217 (Mo. App.1994).