author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Phillip BELTON, Appellant.
    No. SC 85990.
    Supreme Court of Missouri, En Banc.
    Jan. 25, 2005.

      Kent Denzel, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   PER CURIAM.

Phillip Belton attended a gathering at Donald Adkins’ home in December 1999. During the gathering, he waved a gun in the dining room, threatened to shoot Adkins in the head, and shot Adkins dead. Belton was charged with second-degree murder, section 565.021, and armed criminal action, section 571.015.

Belton was convicted by a jury of the lesser-included crime of involuntary manslaughter in the first degree, section 565.024, RSMo Supp.1999, and armed criminal action. Belton was sentenced to two consecutive five-year prison terms. On appeal, he challenges the sufficiency of the evidence to support his involuntary manslaughter conviction and alleges instructional error on the armed criminal action charge. Finding no reversible error, the judgment is affirmed.

SUFFICIENCY OF THE EVIDENCE

Belton contends the evidence is insufficient to convict him of involuntary manslaughter in the first degree. When considering the sufficiency of the evidence on appeal, this Court must détermine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt. The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict. State v. Tisius, 92 S.W.3d 751, 763-64 (Mo. banc 2002).

To convict Belton of involuntary manslaughter in the first degree, the State had to prove that he recklessly caused Adkins’ death. Section 565.02k-1(1), RSMo Supp.1999, A person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow and such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. Section 562.016.k- Recklessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, of a probability less than a substantial certainty. State v. Beeler, 12 S.W.3d 294, 299 (Mo. banc 2000).

Three witnesses testified Belton was showing off a gun and waving it around in the dining room, where Adkins was sitting at a table. Two of the witnesses left the home after they heard Bel-ton threaten to shoot Adkins in the head. A third witness went into a bedroom because she was afraid of the gun. Upon hearing a gunshot a few minutes later, she came back into the dining room and saw that Adkins had been shot in the head. Although none of the witnesses saw the actual shooting, the evidence was sufficient to establish a reasonable inference that Belton shot Adkins.

The State’s theory focused on an intentional shooting, but the witness hearing the gunshot testified she thought it was an accident. Similarly, an inmate at a correctional facility with Belton testified that Belton admitted he “accidentally shot a guy in the head.” An accidental shooting, where the irresponsible use of a gun is shown, can support a finding of recklessness. State v. Gaskins, 66 S.W.3d 110, 113 (Mo.App.2001). At a minimum, the evidence was sufficient to establish the shooting death occurred as result of Belton’s conscious disregard for the substantial risks involved in waving a gun around and pointing it toward Adkins. The jury could reasonably conclude his conduct was reckless, in that it grossly deviated from the standard of care a reasonable person would use under similar circumstances. See State v. Jennings, 887 S.W.2d 752, 754 (Mo.App.1994).

The evidence was sufficient to support the jury’s finding that Belton Vas guilty beyond a reasonable doubt of recklessly causing Adkins’ death.

INSTRUCTIONAL ERROR

Belton also contends the trial court erred in instructing the jury to consider the armed criminal action charge in connection with a guilty verdict on involuntary manslaughter in the first degree. He argues armed criminal action requires a mental state of purposeful or knowing conduct, pursuant to section 571.015.1 and section 562.021.3, RSMo Supp.1999, and, therefore, cannot be submitted with the underlying felony of involuntary manslaughter in the first degree, which requires the lower mens rea of reckless conduct.

On a claim of instructional error, the Court will reverse due to instructional error if there is error in submitting an instruction and prejudice to the defendant. State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002). A defendant is prejudiced by an erroneous instruction when the jury may have been adversely influenced by it. State v. Richardson, 923 S.W.2d 301, 319 (Mo. banc 1996).

Section 571.015 defines armed criminal action:

1.... [A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action....

The trial court instructed the jury that Belton could be found guilty of armed criminal action if the jury determined:

First, that defendant is guilty of the offense of involuntary manslaughter, as submitted in Instruction No. 6, and
Second, that defendant knowingly committed that offense by or with or through the use or assistance or aid of a deadly weapon[.]

Belton contends that section 562.021 precludes a conviction of armed criminal action where, as here, the underlying felony has a mental state of recklessness. That section provides in pertinent part:

... if the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly; but reckless or criminally negligent acts do not establish such culpable mental state.

Section 562.021.3, RSMo Supp.1999.

Under this section, the mental state of knowingly is imputed to the offense of armed criminal action because no mental state is specified for that offense. State v. Williams, 126 S.W.3d 377, 385 (Mo. banc 2004). Belton argues that the underlying felony is an element of the offense of armed criminal action; therefore, the underlying offense must include a mental state of purposely or knowingly, not mere recklessness. Accordingly, Bel-ton contends, involuntary manslaughter cannot' serve as the underlying felony of armed criminal action.

This Court disagrees. Because section 571.015 specifically provides that it is applicable to “any felony” committed with a deadly weapon, the culpable mental state of the underlying felony is irrelevant. This conclusion is consistent with section 562.026(2), RSMo Supp.1999, which provides that no culpable mental state is to be imputed to an offense if imputation is clearly inconsistent with the purpose of the statute defining the offense or may lead to an absurd or unjust result. As a result, the culpable mental state of purposely or knowingly as imputed to armed criminal action applies only to the use of the weapon and not to the underlying felony. Under this Court’s interpretation, Belton acted recklessly in committing the offense of involuntary manslaughter but acted knowingly in committing the offense of armed criminal action. The trial court properly instructed the jury in this regard.

The judgment is affirmed.

WHITE, C.J., WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, SR.J., concur.

RUSSELL, J., not participating.

      . This Court transferred this case after opinion by the Court of Appeals, Western District, authored by the Honorable Lisa White Hard-wick. Mo. Const, article V, section 10. Parts of that opinion are incorporated without further attribution.

      . Except as otherwise indicated, all statutory citations are to RSMo 1994.

      . In pertinent part section 565.024 states:
      1. A person commits the crime of involuntary manslaughter in the first degree if he:
      (1) Recklessly causes the death of another person....


source: Caselaw Access Project

author: RONNIE L. WHITE, Chief Justice.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ronnie D. GONZALES, Appellant.
    No. SC 86129.
    Supreme Court of Missouri, En Banc.
    Jan. 25, 2005.

      Gary E. Brotherton, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. General, Stephanie M. Morrell, Assistant Atty. General, Jefferson City, for respondent.
   RONNIE L. WHITE, Chief Justice.

I.

Ronnie D. Gonzales (Gonzales) appeals from his convictions for second-degree murder and armed criminal action. The case was transferred from the court of appeals, Eastern District. This Court has jurisdiction. Mo. Const, art. V, sec. 10. The judgment of the trial court is reversed, and the cause is remanded.

II.

Gonzales and Mike Gossir (Gossir) had an altercation that resulted in the stabbing of and ultimately the death of Gossir. At trial, Gonzales claimed that Gossir was the initial aggressor and that he stabbed Gos-sir in self-defense. In support of his contention, Gonzales sought to introduce evidence of Gossir’s reputation for violent, turbulent, and bizarre behavior. The court excluded this evidence, reasoning that Gossir’s reputation was irrelevant as to who was the initial aggressor absent a showing that Gonzales was aware of the reputation. The jury found Gonzales guilty of second-degree murder and armed criminal action, and judgment was entered consistent with the jury’s verdict.

III.

A trial court enjoys considerable discretion in the admission or exclusion of evidence. However, that discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.

Gonzales contends the trial court abused its discretion by excluding evidence of Gossir’s reputation for violence in support of his claim of self-defense. A victim’s reputation for violence, turbulence, and aggression may be admissible when a defendant has asserted self-defense. Evidence of the victim’s reputation for violence is logically relevant to two distinct issues in the self-defense context — the reasonableness of the defendant’s fear of the victim and to prove that the victim was the initial aggressor. Gonzales argues that evidence of Gossir’s reputation for violence was relevant and admissible because he had introduced independent evidence supporting his claim that the stabbing was in self-defense.

The State argues that in the absence of evidence that Gonzales was aware of Gossir’s reputation the evidence was inadmissible. While this is correct with respect to reputation evidence offered for the purpose of showing the reasonableness of the defendant’s fear of the victim, a defendant is not required to demonstrate his awareness of the victim’s reputation to the extent the victim’s reputation for violence is offered on the question of who was the initial aggressor. In State v. Buckles this Court stated:

On the issue of self-defense there can be no doubt of the rule that evidence of the deceased’s reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed; but such evidence must be proved by general reputation testimony, not specific acts of violence, and defendant must show he knew of such reputation when the issue is reasonable apprehension,

The State argues that this Court’s decision in State v. Johns eliminates the distinction drawn in Buckles and requires that the defendant be aware of the victim’s reputation for violence regardless of the purpose for which the evidence is offered. In Johns, this Court found no abuse of discretion in excluding the proffered evidence because there was no evidence that the defendant had “ever witnessed a violent reaction from the victim or heard about the victim’s violent behavior toward others.” In support of this conclusion the Court stated:

When the defendant asserts self-defense, a victim’s reputation for violence is generally admissible on the question of who is the aggressor. But the defendant must show that he was aware of the victim’s violent reputation or of ‘the specific act or acts of violence.’

The State contends that, with this passage, Johns overruled Buckles sub silentio.

The difficulty with the State’s argument is that, other than the quoted language referring to “the aggressor,” there is no indication that the reputation evidence in Johns was offered for that purpose. There are, however, a number of indications that the evidence in Johns was offered to demonstrate the reasonableness of the defendant’s fear of the victim. First, the Johns holding relies exclusively on cases where the victim’s reputation for violence was offered to show the reasonableness of the defendant’s apprehension of danger, not that the victim was the initial aggressor. Furthermore, the Johns Court made no mention of Buckles, where evidence of the victim’s reputation was offered on the question of who was the initial aggressor.

This Court further indicated that the distinction drawn by Buckles remains the law in Missouri with its approval of MAI-CR3d 306.06 two years after the decision in Johns. The instruction contemplates the admission of evidence of the victim’s reputation under either of two scenarios— where the defendant is unaware of the victim’s reputation or where the defendant is aware of that reputation. This is precisely the distinction drawn in Buckles. The applicable Notes on Use for the instruction are consistent with this position:

If the evidence of the bad reputation of the victim is not known to the defendant, then the evidence of such reputation is admissible only as evidence of who was the initial aggressor and is not admissible as evidence of reasonable fear of harm on the part of the defendant.

The well-founded and generally accepted distinction drawn by Buckles and MAI-CR3d 306.06 is based on relevance. In determining the reasonableness of the defendant’s apprehension of danger, 'the defendant’s state of mind is critical. The victim’s reputation for violence is only relevant to the defendant’s state of mind if the defendant was aware of that reputation at the time of the altercation. On the other hand, the defendant’s state of mind is wholly irrelevant to the question of who was the initial aggressor. In determining who was the initial aggressor, the question is what the victim probably did, not what the accused probably thought the victim was going to do.

Neither the defendant’s belief that the victim was the initial aggressor nor the reasonableness of that belief bear on the determination of who actually “started it,” because “[t]he inquiry is one of objective occurrence, not of subjective belief.” The identity of the initial aggressor is a fact that exists wholly independent of the defendant’s state of mind; thus, unlike the reasonableness of the defendant’s apprehension of danger, the defendant need not have been aware of the victim’s reputation for evidence of that reputation to be logically relevant.

Here, Gonzales sought to introduce his own testimony and that of several neighbors as to Gossir’s reputation for violence, aggressiveness, and turbulence to prove that Gossir was the initial aggressor. This evidence was relevant and admissible on that issue, regardless of Gonzales’s knowledge of that reputation. Moreover, the evidence was highly probative on the issue in light of the disputed accounts of the altercation as well as the State’s portrayal of Gossir as a “gentle giant.” The trial court misapplied the law in holding that Gonzales was required to demonstrate awareness of Gossir’s reputation for violence before the evidence of that reputation could be admitted. The exclusion of Gonzales’s proffered evidence of Gos-sir’s reputation indicates a lack of careful consideration constituting an abuse of discretion. The other issues presented for appeal may not occur upon retrial; consequently, the Court declines to address them at this time.

IV.

The judgment of the trial court is reversed and the cause is remanded.

WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and ELLIS, Sp.J., concur.

RUSSELL, J., not participating.

      . State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998).

      . State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997).

      . Hall, 982 S.W.2d at 681; State v. Buckles, 636 S.W.2d 914 (Mo. banc 1982) (overruled on other grounds).

      . See Buckles, 636 S.W.2d at 923; see also MAI-CR 3d 306.06 Part C.

      . State v. Waller, 816 S.W.2d 212, 215-16 (Mo. banc 1991).

      . Buckles, 636 S.W.2d at 923.

      . Id.

      . State v. Johns, 34 S.W.3d 93, 111 (Mo. banc 2000).

      . Id.

      . Johns, 34 S.W.3d 93 at 111 (emphasis added), citing State v. Hall, 982 S.W.2d 675, 681 (Mo. banc 1998); Waller, 816 S.W.2d at 216.

      . See William A. Schroeder, Missouri Practice Series — Missouri Evidence, section 404.3(b)(2)(C), n. 42 and n. 43 (noting that Johns makes "no mention of the theory on which the evidence was offered.”)

      .See footnote 10.

      . See MAI-CR3d 306.06 Part C-Special Matters.

      . Buckles, 636 S.W.2d at 923.

      . MAI-CR3d 306.06, Notes on Use 6; see also MAI-CR3d 306.06, Notes on Use 7.

      . Buckles, 636 S.W.2d at 923.

      . Waller, 816 S.W.2d at 215.

      . See 1A Wigmore, Evidence Sec. 63, 1369 (Tillers rev.1983).

      . Id.

      . Id.

      . See Schroeder, supra section 404.3(b)(2)(C).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Dawn HARRINGTON, Appellant-Respondent, v. David HARRINGTON, Respondent-Appellant.
    Nos. WD 63606, 63673.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Jeffrey S. Royer, Blue Springs, for Appellant.
    Michael W. Hanna, Raytown, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Dawn M. Harrington and David B. Harrington each appeal from the dissolution judgment entered by the trial court, below. We hold that court abused its discretion by striking David Harrington’s pleadings and preventing him from introducing evidence or asserting affirmative defenses because those sanctions were imposed without reasonable notice to him. We, therefore, reverse the judgment and remand for further proceedings.

Factual and Procedural Background

The present appeal arises out of the dissolution of the fourteen-year marriage of David B. Harrington (hereinafter “Husband”) and Dawn M. Harrington, (hereinafter ‘Wife”). The parties separated in late August 2001, and dissolution proceedings were filed shortly thereafter. There were four children born of the marriage, presently ranging from six to fifteen years of age, and a Guardian ad Litem was appointed to represent their interests in the litigation.

While the case was pending, a motion was filed requesting that Husband submit to a physical examination pursuant to Rule 60.01(a)(1), apparently alleging that Husband had engaged in use of illicit drugs. The trial court subsequently ordered Husband to submit to drug testing (including urinalysis and hair follicle analysis) no later than February 15, 2002. Husband failed to comply with that order. According to the record, Husband even shaved his body hair to avoid follicle hair analysis.

Wife subsequently brought a motion for contempt on March 7, 2002, seeking attorney fees and “such other relief as the court shall deem just and proper in the circumstances.” It is not clear whether a hearing was held on Wife’s motion, but on March 21, 2002, the trial court entered yet another order directing Husband to submit to drug testing. Nothing in the record indicates any other action took place regarding this issue in the nearly seven months between this last order and the date the trial began in October 2002.

Husband was the custodian of stock accounts for the parties’ children that were given to them by their paternal grandparents. During the proceedings below, Wife asked the trial court to appoint a substitute custodian for those accounts, but the court denied that request believing that it lacked jurisdiction to do so. According to the allegations below, Husband subsequently converted at least some portion of the children’s stock accounts and used the funds for his own purposes. Wife filed a separate contempt motion with regard to this issue, but it was subsequently dismissed.

The case proceeded to trial on October 10, 2002. Wife appeared in person and through counsel. Husband, however, appeared only through counsel, as he' was apparently being held in federal custody upon a firearms charge. The Guardian ad Litem was also present.

At the start of the proceedings, the Guardian ad Litem made an oral motion to strike Husband’s pleadings. There were a number of grounds mentioned for that motion, including: Husband’s failure to appear at trial due to his incarceration, his refusal to submit to drug testing as ordered by the court, the dissipation of the children’s assets, and Husband’s noncompliance with terms of Wife’s order of protection. The trial court took the motion under advisement and proceeded to begin hearing evidence before adjourning trial until November 21, 2002. At the beginning of proceedings on that day, the trial court announced that it was striking Husband’s pleadings. It subsequently issued a written order dated November 22, 2002, finding each of the grounds alleged by the Guardian ad Litem in her motion. That order struck Husband’s pleadings and also barred him from presenting evidence, testimony, or affirmative defenses.

At the conclusion of trial, the trial court entered a judgment dissolving the parties’ marriage, determining marital and non-marital property, dividing the marital assets and debts, and awarding Wife sole legal and physical custody of the parties’ children, as well as granting other relief. Wife appeals that judgment, raising two points on appeal. Each point concerns the children’s stock accounts. Wife contends that the trial court erred both by failing to appoint a replacement custodian for the accounts and by failing to classify those accounts as marital property and to include them in the division of marital property.

Husband has cross-appealed. In five of his seven points on appeal, he argues that the trial court erred in the proceedings below. First, he contends that the trial court erred in striking his pleadings and prohibiting him from presenting evidence, testimony, and affirmative defenses. He next argues that the trial court erred in ordering him to pay Wife’s attorney fees. His third and fourth points claim that the court’s award of child support was not supported by the evidence and that the trial court erroneously entered judgment against him for $21,242 for retroactive child support while separately ordering child support to be retroactive to October 2001, granting Wife a double recovery. His fifth point on appeal argues that the trial court erred in dividing the marital property and debts.

We find Husband’s first point in his cross-appeal to be dispositive and reverse and remand the matter for further proceedings.

Discussion

Husband’s first point on appeal contends that the trial court erred in its order striking his pleadings and barring him from presenting evidence, testimony, and affirmative defenses at trial. He claims that this order was erroneous for four reasons. First, he argues that three of the reasons relied upon by the Guardian ad Litem and the court were insufficient to support the sanctions imposed. Second, he contends that the sanctions were improper because he was not provided reasonable notice of the motion and sanctions. Third, he claims that the trial court unjustly exercised its discretion in imposing the sanctions. For his fourth argument, he claims that the Guardian ad Litem failed to plead or prove prejudice in her motion for sanctions, and, thus, the trial court erred in finding prejudice and granting sanctions against him.

Rule 61.01 authorizes the imposition of sanctions when a party fails to comply with discovery requests. Scott v. LeClercq, 136 S.W.3d 183, 190 (Mo.App.2004). In reviewing an imposition of sanctions against a party, the issue does not turn upon whether the appellate court would impose the same sanctions under the same circumstances. See id. Instead, we will reverse only upon a showing that the trial court abused its discretion. See id. To constitute an abuse of discretion, the trial court’s action must be clearly against the logic of the circumstances before the court and be so arbitrary and unreasonable to shock the sense of justice and reveal a lack of careful consideration. Id.

Husband first contends that he was not provided with adequate notice of the Guardian ad Litem’s motion for sanctions. A similar issue regarding adequacy of notice prior to striking pleadings in a dissolution action was addressed in Bell v. Bell, 987 S.W.2d 395 (Mo.App.1999). In Bell, the husband had failed to timely respond to interrogatories and a request for production of documents propounded by wife. Id. at 400. The wife then brought a motion to compel discovery, in which she also specifically requested relief in the form of striking the husband’s pleadings. Id. The trial court then ordered the husband to respond to the discovery by a set date, but he made no response prior to the deadline. Id. The wife, after attempting to resolve the issue informally with the husband, then filed a motion for sanctions, again asking the trial court to strike husband’s pleadings. Id. The trial court set one final deadline for husband to respond to the discovery, but the husband again did not respond. Id. At the beginning of trial the wife made an oral motion for sanctions, seeking to strike the husband’s pleadings and to limit his presentation of evidence. Id.

The trial court granted that motion, and husband subsequently appealed that ruling, claiming that the wife’s motion, made at the beginning of the first day of trial, did not provide him reasonable notice. Id. The appellate court noted that the wife had twice, in the three months leading up to trial, filed motions expressly seeking to have husband’s pleadings stricken. Id. at 401. It therefore found that the husband had been placed on sufficient notice regarding the possible sanctions and the basis thereof such that the trial court’s ruling on the wife’s oral motion was not an abuse of discretion. Id.

Here, the Guardian ad Litem made no motions prior to trial seeking to have Husband’s pleadings stricken on any of the grounds articulated in her oral motion. Nor did she give any other prior indication that she intended to seek such relief. We do note, however, that two of those grounds raised by the Guardian ad Litem, specifically the failure to comply with court-ordered drug testing and Husband’s dissipation of certain assets, had been raised by Wife prior to trial. With regard to the issue of dissipation of property, the record indicates that Wife’s motion for contempt on that issue was dismissed roughly four months prior to trial. Turning to the remaining ground, Husband’s failure to submit to drug testing, the record shows that Wife never expressly requested in her motions that Husband’s pleadings be stricken, unlike her counterpart in Bell. Further, she took no further action after the trial court’s March 21, 2002 order directing Husband to submit to drug testing. Overall, the record suggests that Wife essentially abandoned her attempts to seek sanctions against Husband regarding these matters. Certainly, Husband was not placed on notice that those issues would be re-raised by the Guardian ad Litem at the beginning of trial. We find that Husband was not provided adequate notice regarding the motion.

Wife, on appeal, contends that any prejudice to Husband due to lack of prior notice of the Guardian’s motion for sanctions was remedied because the trial court did not immediately rule upon the motion and instead took the matter under advisement for more than a month. She argues that Husband had the opportunity to request formal hearing on the motion or to submit a brief to the court on the issue in the intervening time and that he failed to do so. We find that making a request for formal hearing was unnecessary because the court conducted a hearing on the Guardian’s motion immediately after it was made. Upon taking the matter under advisement, the court made no suggestion that it would entertain further briefing or would hear further argument on the matter. It also immediately proceeded to trial. We find that the lapse in time between the hearing and the issuance of the trial court’s order did not cure the failure to provide reasonable notice to Husband.

Upon the record before us, we conclude that Husband was not supplied with reasonable notice prior to the trial court’s actions in proceeding upon the Guardian ad Litem’s oral motion for sanctions. Rule 61.01 requires such notice as a condition for imposing sanctions. Therefore, the trial court abused its discretion in striking Husband’s pleadings and barring him from presenting evidence, testimony, or affirmative defenses.

This finding of error is dispositive. We do not reach the merits of any of the other points raised by the parties in the present appeal and cross-appeal. The judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this opinion.

PAUL M. SPINDEN, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . The record on appeal does not contain the order appointing the Guardian ad Litem for the children. Thus, the precise reasons for the appointment of a Guardian ad Litem are somewhat unclear, though there is a suggestion that domestic violence was a factor, based upon indications that Wife had obtained an order of protection against Husband at some point.

      . The motion for physical examination has not been included in the record on appeal.

      . We note that while Husband did not personally appear at trial due to being held in federal custody, he did appear at trial through counsel. See Spirtas Co. v. Div. of Design & Const., 131 S.W.3d 411, 415-16 (Mo.App.2004).

      . The remaining two points in Husband’s brief are merely responses to Wife’s two points on appeal.

      . Husband also argues that, even if he had been given sufficient notice with regards to this ground, the trial court’s order constituted an abuse of discretion because of the breadth of the sanction. He points out that there were numerous issues in dispute in this dissolution action. Some of them concerned identifying the parties’ marital and nonmarital property and dividing the former between the parties. Others bore upon issues of child custody, visitation, and support. He contends that there was no suggestion that the allegations regarding Husband's use of illegal drugs had any bearing upon the property issues, and were relevant only to child custody and visitation issues. When dealing with a discovery violation that primarily affects a specific issue disputed by the parties, a trial court may appropriately limit and tailor its sanctions to bar the party that committed the violation from disputing that issue. See, e.g., Goede v. Aerojet Gen. Corp., 143 S.W.3d 14, 22-23 (Mo.App.2004). He argues that the trial court abused its discretion in not limiting the sanctions to preventing him from presenting evidence with regard to the issues of custody and parenting time. Ultimately, however, we need not reach this issue because we conclude that Husband was not provided reasonable notice prior to the imposition of sanctions.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    ROBERTSON PROPERTIES, INC., Respondent, v. In the Matter of the DETACHMENT OF TERRITORY FROM PUBLIC WATER SUPPLY DISTRICT NO. 8 OF CLAY COUNTY, Missouri, Appellant.
    No. WD 62968.
    Missouri Court of Appeals, Western District.
    Jan. 21, 2005.

      Jeremiah D. Finnegan, Kansas City, MO, for Appellant.
    John W. Roe, Kansas City, MO, for Respondent.
    Before ULRICH, P.J., LOWENSTEIN and SMITH, JJ.
   OVERVIEW

HAROLD L. LOWENSTEIN, Judge.

This is an appeal from a judgment in an action brought by Robertson Properties (Robertson) under Section 247.031 to detach approximately fifty-five acres of land from the defendant Public Water Supply District No. 8 of Clay County, Missouri (District), a non-profit association. This overview is presented since the alignment of the parties and relief sought differs from the cases cited by the parties and the trial court. The typical case involves a public water district filing suit against a defendant municipality that seeks to serve drinking water to consumers in a congruent area. This case is different, in that the area in issue is located within a public water district’s domain and has been annexed into a municipality’s boundary, and the land is being developed by a plaintiff who wants a city to supply drinking water.

Generally, as will be set out infra, the purpose of public water supply districts is to provide drinking water to areas in which service would be economically difficult to sustain. Congress set up a mechanism to help finance these districts in the delivery of potable water. In providing financial aid to the states to fulfill this purpose, the United States government' has prescribed measures to ensure repayment of these obligations.

Much of the litigation that has resulted from this federal-state cooperation has involved situations where the public water supply district, financed in part by federal money, has been formed within a state to serve a remote or unpopulated area. As the area served by the public district grew, communities with a municipal or other water supplier developed and expanded into the district’s territory. Consequently, developers, residents, and others who had land in both the district and in the municipality could potentially have two different water suppliers. In instances where the landowner elects to be served by the municipal provider, but the water supply district does not agree to detach the affected area from its territory, Section 247.031 sets out the mechanism for detachment in Missouri.

In this case, the plaintiff Robertson, is a developer of residential real estate. One hundred thirty-four acres of Robertson’s land had been annexed by the City of Kearney approximately one year before the filing of this suit. Robertson worked closely with Kearney since beginning the development, and it was assumed that Kearney would supply all the water. Robertson brought suit under the auspices of state law, seeking to detach the fifty-five acres from the District. Robertson’s evidence in favor of detachment was to the effect that neither Roberston, nor Kear-ney, knew that this land was located in the District’s territory.

The District answered Robertson’s petition by raising the affirmative defense that 7 U.S.C. § 1926 protected its territory from competitors. It also counterclaimed for a declaration of law and an injunction protecting its supply area. The trial court ruled in favor of Robertson, denying all relief requested by the District.

The ultimate question now on appeal concerns which entity — Kearney or the District — will supply drinking water to the Overlap Area. However, the answer to this question lies in yet another question: Where a state trial court is presented with a property owner’s detachment suit filed under state law, and the public water supply district raises federal law as a defense to the detachment, must the trier of fact first decide the issues prescribed in the federal act, and upon finding the federal act does not apply, then decide if the elements contained in the state detachment action are met? This court finds that it must.

Facts

In 1999, Robertson purchased a tract of undeveloped land and entered into an agreement with the seller, whereby Kear-ney would annex one hundred thirty-four acres of the land. Robertson began developing its land in phases, with Kearney supplying water. During development, it was discovered that fifty-five acres of the land annexed by Kearney was already within the District’s territory. By the time this discovery was made, however, Kearney had already obtained easements and had extended an eighteen-inch and a fourteen-inch water main to service the Overlap Area (Phase IV). Accordingly, Robertson brought suit to detach the Overlap Area from the District.

In entering judgment for Kearney and granting detachment, the trial court made extensive findings that it would be cheaper, more feasible, and less cumbersome for all phases of Robertson’s development to be served by Kearney. It found that (1) the District had not supplied water to the subject Overlap Area, (2) did not have sufficient mains to immediately provide service, and (3) that Robertson had requested service from the District in October of 2002, but had not received assurance that it could provide service by May 1, 2003. Additionally, the court found that Kearney could better provide water for fire protection.

The court concluded that because the District had over eight hundred customers in an area of approximately eighteen thousand acres, detachment of the fifty-five acre Overlap Area would neither result in a curtailment of service by the District nor hinder it from repaying its obligation on existing bonds. Although the court did not determine whether the outstanding bonds were “special obligation bonds” within the meaning of Section 247.031, it did conclude that since the District did not have any lines or other facilities in the Overlap Area, consent of the bondholders was not required for detachment.

Review and Analysis

Review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and Rule 73.01. Accordingly, the trial court’s judgement will not be overturned “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy, 536 S.W.2d at 32.

In this ease, the trial court erroneously applied the law by focusing its analysis on Section 247.031. Instead of first engaging in a formal Section 1926 analysis, the trial relied on Chance v. Public Water Supply District No. 16, 41 S.W.3d 523, 525 (Mo.App.2001), to conclude that Section 1926 was inapplicable because the detachment was sought by a private individual rather than a municipality. This reliance is misplaced and constitutes a misapplication of law. Chance did involve a landowners’ suit to detach under Section 247.031 and a contention by the defendant water district that Section 1926 afforded it protection. Beyond those facts, however, any similarity to the facts in Chance and the case at bar ceases.

In Chance, the landowner owed a ten-acre tract located in an unincorporated area within the water district’s boundaries. Id. at 524. The tract was later divided into two separate lots. Id. Although the City of Independence was already providing water to the lot on which the Chance’s house was located, the city refused to provide service to the second lot unless it was detached from the water district. Id. Because they wanted Independence to service both lots, the Chances filed a detachment suit against the water district. Id. The trial court ruled in favor of the Chances and detached the property from the water district. See id. at 526.

This court affirmed, relying on Section 247.031. Id. at 524. Section 247.031(1) provides that “[tjerritory included in a district that is not being served by such district may be detached from such district provided that there are no outstanding general obligation or special obligation bonds.” Subsection (4) further requires the circuit court to detach the property in question “if the court finds that the detachment [1] will be in the best interest of the inhabitants and landowners of the territory to be detached and [2] will not adversely affect the remainder of the district.” § 247.031(4).

The Chance court noted that, under the federal statute, the requirement that a district be indebted to the federal government was not met because the district itself was not the entity that had received a federal loan. 41 S.W.3d at 524-25. It also said that the Section 1926(b) requirement, that service of a district provided or made available shall not be curtailed by inclusion in the district’s area of a city boundary (i.e., annexation), was not involved. Id. at 525 (“Independence has not annexed the Chance’s property!)]”).

This case is different in that the property sought to be detached was annexed with the landowner’s permission by Kearney in March 1999, well before the filing of the detachment suit. Kearney planned to provide water to one hundred forty-five houses, until later discovering that fifty-five acres of the project were within the District’s territory. Although not the de jure plaintiff, Kearney had made prior arrangements with the landowner to provide water service. Therefore, it was not an innocent bystander to Robertson’s dispute with the District. Despite Chance’s language that suggests blanket authority be given to municipal water systems supplying water where “service areas” coincide with federally indebted public water districts, this language should not be taken out of context. Specifically, neither Chance, nor its interpretation of federal and state law, should be read to allow automatic circumvention of Section 1926(b)’s protection where the municipality seeks to provide water to property it has annexed from within the distributor’s boundaries and over the water district’s objections.

COMPARING State and Federal Law

The error of law here results from the trial court’s commingling of the facts and conclusions from its Section 1926 and Section 247.031 analyses, primarily from deciding the state action first. The trial court specifically held that the plaintiff, Robertson, was a private individual, not a municipality. The problem with a “private” plaintiff bringing a Section 247.031 suit is that the Section 1926 defense must first be addressed; application of federal law does not rest on anything other than the provider being a competitor with a district indebted to the United States. Section 1926 is not affected by who brings the underlying suit. In a Section 1926 analysis it makes no difference whether an individual brings the suit for detachment; the end result is the same — a municipal or private water supplier is chosen to provide drinking water.

As stated in the legislative history of, and the many cases interpreting, Section 1926, the primary type of competition Congress envisioned was an expanding municipality that annexes and tries to lure urban customers to buy water from them. See, e.g., Jennings Water, Inc. v. City of N. Vernon, 895 F.2d 311, 317 (7th Cir.1989); Rural Water Dist. No. 3 v. Owasso Util. Auth., 530 F.Supp. 818, 824 (N.D.Okla.1979). This seems to be exactly what happened here. Having a “private” plaintiff bring a state detachment suit does not negate or trump a district’s Section 1926 defense. Only after first determining that one of Section 1926’s prongs is inapplicable may the court consider the applicable state detachment statute.

Must the Section 1926 Defense be Decided FiRst?

A side-by-side examination of the criteria for detachment from a public water district contained in the federal statute reveals a distinct difference from the Missouri statute, Section 247.031, for detachment by a landowner. As stated earlier, public districts — such as the District here — are funded by government loans provided for by federal law. Section 1926, therefore, takes precedence over state detachment law. There is no issue here of invalidating state law, nor could this court entertain such an examination. What is evident, however, is that the trial court must first determine whether the letter of the federal law and the Congress’ purposes and objectives are being followed. The Supremacy Clause, U.S. Const, art. VI, cl. 2. states that the laws of the United States made in pursuance of the Constitution shall be the supreme law and judges of every state are bound thereby. Ard v. Jensen, 996 S.W.2d 594, 596 n. 3 (Mo.App.1999); City of Simset Hills v. Southwestern Bell Mobile Sys., Inc., 14 S.W.3d 54, 57 (Mo.App.1999). When, upon examination, state law conflicts with federal law, the state laws are preempted. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978).

Inherent in this examination is the proposition that the trial court should interpret federal law without also considering state law issues. That is not what happened in the instant case. Although state and federal law seem similar, they are not, but nor are they contradictory. Combining federal criteria with state issues, and even matters irrelevant to the federal purpose of supplying drinking water to rural areas, i.e., a District supplying water to fight fires or facilities for sewer collection, simply should not enter into a Section 1926 analysis. If the federal statute applies, there is no need to determine whether state law has been met, for the federal law, via a Section 1926 defense, has preempted a detachment under Section 247.031. See Paul v. Jackson, 910 S.W.2d 286, 290 (Mo.App.1995).

Title 7, Section 1926 of the United States Code was enacted as a manifestation of Congress’ discretionary powers under the spending clause, U.S. Const, art. 1, § 8, cl. 1, to provide for the general welfare. Glenpool Util. Servs. Auth. v. Creek County Rural Water Dist. No. 2, 861 F.2d 1211, 1215 (10th Cir.1988). Legislation enacted under the spending clause is like a contract in that when states accept federal money they “agree to comply with federally imposed conditions.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

The legislative history of Section 1926(b) explains that the main purpose of the federal loans made to water district associations is to supply potable water to farmers and ranchers. S. Rep. No. 87-566 (1961), reprinted in 1961 U.S.C.C.A.N. 2243, 2309. The legislative history further states that the words, “other rural residents,” were included to indicate the desire to reduce the cost per user in the remaining, more remote areas. Id. Congress did not intend, however, to allow expanding municipalities to “skim the cream” by expanding into and annexing land from water associations. See City of Madison v. Bear Creek Water Ass’n, Inc., 816 F.2d 1057, 1060 (5th Cir.1987).

The purpose of securing the district’s territory from competitive suppliers, such as municipalities, is to protect and encourage rural water developments and to insure repayment of the loans to the federal government. Sequoyah, 191 F.3d at 1196 (citing S.Rep. No. 87-566 (1961), reprinted in 1961 U.S.C.C.A.N. 2243, 2309). Although the legislation does not specifically state that there cannot be open competition, the history showed the “intent of Congress was to protect rural water districts from ‘competitive facilities,’ especially those which would be developed as a result of the expansion of neighboring municipalities.” Rural Water Dist. No. 3, 530 F.Supp. at 824; see also City of Madison, 816 F.2d at 1060.

Section 1926(b) sets out a congressional mandate that local governments not be allowed to encroach upon, curtail, or limit the drinking water services provided by an association that is indebted to the federal government. Pub. Water Supply Dist. No. 10, 345 F.3d at 571; City of Madison, 816 F.2d at 1059. Accordingly, the designated area of a water association entitled to Section 1926(b) protection is sacrosanct; any doubts as to protection should be resolved in favor of the association from municipal encroachment. Rural Water Sys. No. 1 v. City of Sioux Center, 202 F.3d 1035, 1038 (8th Cir.2000) (citing Sequoyah, 191 F.3d at 1197).

In order for Section 1926 to apply, a water district association must establish that (1) it has a continuing indebtedness to the FmHA and (2) has provided or made available service to the disputed area. See Le-Ax Water Dist. v. City of Athens, 346 F.3d 701, 705 (6th Cir.2003). However, the trial court in this case failed to make a definitive finding whether the District was indebted to the FmHA. Instead, the trial court merely indicated that the second prong — whether the District had “made service available to the disputed area” — had not been satisfied. Because express findings on both prongs are required to determine the applicability of Section 1926, the judgment is reversed and remanded. On remand, the trial court should, without admitting new evidence, determine whether the District was indebted to the FmHA.

In addition, the trial court should also revisit its analysis of prong two. Section 1926(b) uses the language “service provided or made available.” The statute clearly prohibits a municipal annexation that would “pry” existing customers away from a public water district. Even in instances where service has not yet been provided to an area, an association can still claim Section 1926 protection under this second prong by demonstrating an ability to provide service, in that it has water lines and adequate facilities in or adjacent to the disputed area, within a reasonable time after a request for service has been made. See, e.g., N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir.1996); Lexington-South Elkhorn Water Dist., v. City of Wilmore, 93 F.3d 230, 238 (6th Cir.1996). The ability to provide drinking water service can be shown by evidence that there are “pipes in the ground” in or adjacent to the disputed area with which it can serve the disputed customers within a reasonable time after a request for service is made. Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1267-68 (10th Cir.2002) (citing Sequoyah, 191 F.3d at 1203).

It is within this context that a determination must be made whether the District has made service available to future water consumers in Brooke Haven. In making this critical determination, the comparison of what the District offers and what Kear-ney offers is not the litmus test. Whether it is easier or cheaper for Kearney to provide service is irrelevant. The test is simply whether the District has made available service to this area.

Here, the trial court merely determined that Kearney would be a better provider. It did not address the admitted or uncontested facts that Robertson initially decided to “go with the City,” the failure of Robertson/Kearney to determine if there was an encroachment, and Robertson’s late request for service, which was made well after Robertson/Kearney had laid mains and connecting pipes into an undeveloped area at the edge of the District’s territory. As a result, on remand, the trial court should ultimately determine whether the District was reasonably capable of “providing service” at the request of Robertson.

Suggestions to the Trial CouRT

Although this court would prefer to afford finality to the underlying question of which entity would be the water supplier, that result cannot be reached under the findings and conclusions of the trial court. This court now holds that where Section 1926(a)-(b) is raised as a defense to a Section 247.031 suit for detachment by a landowner involving overlapping territory due to a later municipal annexation, the trial court must make a determination in the following order. First, the trial court must make all necessary findings and conclusions in order to decide whether the federal statute protects the district, i.e., is the District still indebted to the federal government and has the District “made service available”? If the court concludes the federal act protects the district, the inquiry is at an end and no detachment may be had.

If the court, however, concludes that the federal statute is inapplicable, it must then consider the evidence and determine that the Overlap Area “is not being served” by the District. If there are general or special obligation bonds or specified debts of the District exceeding $25,000, the creditors’ bondholders must consent in writing to the detachment, “except such consent shall not be required for special obligation bonds if the district has no water lines or other facilities located within any of the territory detached.” § 247.031(1). Finally, in response to exceptions filed by the District under Section 247.031(4), the court must also find that the detachment (1) will be in the “best interest of the district” and “the inhabitants and landowners of the [Overlap Area] will not be adversely affected,” or that (2) the detachments “will be in the best interest of the inhabitants and landowners” in the Overlap Area and “will not adversely affect the remainder of the district.” Only after making all of these determinations may the trial court grant the landowners’ petition.

If the method set forth above is not followed and the landowner has already made arrangements with the water supplier, proceeding with a Section 247.031 examination without making findings regarding the federal law, effectively preempts the federal statute. This is what happened here; the de jure plaintiff is a landowner seeking a determination of who can best supply cheap drinking water, but, in fact, the defacto plaintiff is the municipality who has already been chosen as the supplier. This case is apparently an attempt to circumvent the federal statute, which is designed to protect rural water districts that have made the effort to supply water to remote users.

In addition to demonstrating the necessity for a trial court dealing with a Section 247.031 petition to determine of federal law first, this case presents an additional problem neither contemplated by the Missouri detachment statutes nor by Chance.

The landowner-plaintiff in the case at bar was not a single owner who planned to utilize the property merely as a residence. To the contrary, Robertson intended to develop and sell one hundred forty-five homes in the Overlap Area. Unlike the plaintiff in Chance, however, Robertson worked with Kearney from the very beginning with the sole intention of using Kear-ney’s water. The following evidence, an excerpt from Robertson’s consulting engineer’s letter of October 1, 2002, to the District is most telling:

Robertson Properties, Inc. has been caught in the middle of the struggle between the District and the City of Kearney as to who will service the next phases.... This has been going on for nearly one (1) year and the time line has become critical.... The City intends to enforce a sewer connection fee to all City sewer customers that are not water customers. This will impact the project by nearly $400,000.

Notably, Kearney’s involvement in the detachment process was not limited to the Robertson property. At trial, the District’s president testified that he was aware that another property owner, Mr. Horn, had also filed for detachment and an attorney for Kearney entered an appearance on both landowners’ behalf. He also stated that, while he had not confirmed the information, he had heard that Kearney was paying for Mr. Horn’s attorney fees.

This evidence, coupled with the documented involvement by Kearney both pri- or to and during the Robertson suit, presents a perplexing question as to whether this suit should have been brought by Kearney under Section 247.170. The trial court rejected this solution, and this court cannot dispute the judge’s action in hindsight. The question remains, however, what course should a trial court take where it becomes obvious the plaintiff is not truly the real party in interest under Section 247.031. Since this case is being reversed on other grounds and being sent back for findings and conclusions in accordance with the opinion, a definitive answer is not being made. Should this situation ever arise again, however, a viable alternative for the trial court would be to find that the municipality is a necessary party and order that the municipality be joined and aligned an additional plaintiff under Rules 52.04 and 52.06.

Suggestions to the LegislatuRE

The factual scenario leading up to this lawsuit may very well be repeated, as growing Missouri communities continue to expand into unincorporated and unimproved areas comprising authorized territory of public water supply districts. It is hoped that the supply of drinking water to such newly-planned developments could be negotiated under existing laws with satisfactory results and without the expense, delay and rancor present in the case at bar. When laid side-by-side, Section 1926, and accompanying common law, differs from the requirements of Missouri law, particularly Section 247.031.

This court suggests that the legislature re-examine Section 247.031. It also suggests that a method be forged to create an atmosphere where developers, municipalities, and public supply districts can begin negotiations at an early stage and avoid clandestine arrangements between developers and cities that allow the cities to construct and expand an available supply before a request or announcement of the upcoming plans are made to the public district. By the same token, it is also hoped that such a method will also dissuade the public district from dawdling when it is apparent that another entity is putting water lines in its territory.

Furthermore, the trial court intermingles terms from both statutes in making a determination of their individual applicability. For instance, when it referred to the existence of “general” or “special obligation bonds,” it used terms solely contained in Missouri’s Section 247.031. In 1926(b) Congress refers only to “loans” as denominated in (a). The result here was the trial court determined the applicability of Section 1926 on the basis of Missouri law. In order to eliminate or alleviate this confusion, the state legislature is invited to re-examine Section 247.031 in light of overlapping areas where a public supply district still has outstanding federal loans.

Conclusion

Allowing a landowner to bring a detachment suit in cases, such as this, would put form over substance. The situation here is obvious. To now say that Kearney will not benefit from this detachment suit misses the mark. The landowner entered into a pre-purchase agreement that insured Kearney would be the supplier. Robertson and its customers will be the users and, without the overriding protection of the federal law, the District will lose a cluster of desirable customers.

Accordingly, this court must reverse the judgment of the trial court and remand for the sole purpose of first making findings and conclusions as to the applicability of 7 U.S.C. Section 1926 to the underlying petition for detachment. The trial court must reach a finding whether the District can, or has, made service available to the landowner(s) and whether the District has outstanding federal loans. If federal law is found applicable, the trial court shall enter judgment in favor of the District. If, however, the court concludes Section 1926 does not apply and, therefore, offers no defense for the District, it may then proceed to a determination under Section 247.031.

.All concur.

      . All statutory references are to RSMo. (2000) unless otherwise stated.
      Other portions of the public water district law in Chapter 247 that deal with detachment from a district include Sections 247.160, 247.170, and 247.220.
      Section 247.160 covers the procedure where a municipality has annexed part of the district's territory and the district’s board voluntarily enters into a contract with the municipality to allow the municipality to provide water service and to detach. This section also addresses payment for the use of district property and means by which to insure its bond payments. The circuit court must ultimately approve the district board and municipality's contract in order for detachment to occur.
      Section 247.170 applies if the district and city cannot agree on who will supply water to annexed property within the district's territory. In order to detach, a petition may be filed in circuit court by a designated percentage of the registered voters in the district who are also patrons of the district. If the court approves the petition, a special election will be called to vote on the detachment.
      Finally, Section 247.220 provides a mechanism by which the inhabitants of an entire district may dissolve the entire district through a popular vote of two-thirds of the voters. Under this section, the detachment must be signed by one-fifth of the voters. The court must also determine dissolution would be in the public interest. Public Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570, 572 (8th Cir.2003).

      . These fifty-five acres will be referred to as the "Overlap Area.”

      . Title 7 U.S.C. Section 1926(a)(1) authorizes the Secretary of Agriculture to:
      make or insure loans to associations, including corporations not operated for profit, Indian tribes on Federal and State reservations and other federally recognized Indian tribes, and public and quasi-public agencies to provide for the application or agencies to provide for the application or establishment of soil conservation practices, shifts in land use, the conservation, development, use, and control of water, and the installation or improvement of drainage or waste disposal facilities, recreational developments, and essential community facilities including necessary related equipment, all primarily serving farmers, ranchers, farms tenants, farm laborers, rural businesses, and other rural residents, and to furnish financial assistance or other aid in planning projects for such purposes.
      Subsection (b) states that:
      The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.
      7 U.S.C. § 1926(b) (1994).

      . "[A] water association's capacity to provide fire protection is irrelevant to its entitlement to protection from competition under § 1926(b).” Sequoyah County Rural Water Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1204 n. 10 (10th Cir.1999).

      . The court did point to evidence that supported a ruling that the District owed on obligations on its assets and property securing a federal loan as defined under the act.

      . Relative cost is determinative only if the district's price is "grossly excessive.” Rural Water Dist. No. 1 v. City of Wilson, 243 F.3d 1263, 1271 (10th Cir.2001).


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

text:
    Ruth G. HORN and John L. Horn, Respondents, v. PUBLIC WATER SUPPLY DISTRICT NO. 8 OF CLAY COUNTY, MISSOURI, Appellant.
    No. WD 63389.
    Missouri Court of Appeals, Western District.
    Jan. 21, 2005.

      Jeremiah D. Finnegan, Kansas City, for appellant.
    Mark Edward Kelly, Liberty, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

Public Water Supply District No. 8 of Clay County, Missouri, appeals a Circuit Court ruling allowing detachment of land within the water district. We reverse and remand.

Standard of Review

We review the judgment of the trial court pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we will sustain the trial court’s judgment unless there is no substantial evidence to support, unless it is against the weight of the evidence, or unless it erroneously declares or erroneously applies the law.

Factual Background

Ruth and John Horn own 180 acres in Clay County. On August 2, 2002, the Horns agreed to sell the 180-acre tract to a developer, Mark Geisinger, who planned to develop the property into both multifamily and single family units. The sale was contingent upon the entire tract being annexed into the City of Kearney. One hundred and forty acres of the property already has been annexed by the City. The forty acres not annexed he within the boundaries of Public Water Supply District No. 8 of Clay County. That forty acres is the subject of this lawsuit.

The Water District is a public water supply district formed pursuant to Chapter 247 of the Missouri Statutes. The Water District serves a total of 18,000 acres. The Horns are one family among over 800 customers located within the boundaries of the Water District.

At the time of the contract between the Horns and Geisinger, the Water District provided service to the forty acres. In December 2002, the Horns requested that the service be terminated. In February 2003, at the request of the Horns, the meter was removed by the Water District, but the meter box and the water line were left in place. The Water District has a four-inch water main along the entire side length of the subject property and also a twelve-inch main which could be extended to the property within one month.

Geisinger will not proceed with development unless water and waste water can be provided by the City of Kearney. The City has agreed to provide water service to the 140 acres previously annexed. It will also provide service to the forty acres if it is detached from the Water District and annexed by the City. If the forty acres were to be annexed without detachment from the Water District, the City would have to install sewer service but would not be able to provide water service. The City’s current policy is to not annex property and provide sewer service unless it can also lay the groundwork for water service at the same time.

The Water District has a loan from the Farm and Home Administration of the U.S. Department of Agriculture. The loan is scheduled to be paid off October 1, 2010. The loan is secured by special obligation water works revenue bonds. Also, in 2003, the Water District created a second bond obligation in the amount of $960,000. The holders of the bonds have not consented to the detachment.

On May 19, 2003, the Horns filed a petition for detachment, pursuant to Section 247.031, RSMo, seeking to have the forty acres detached from the boundaries of the Water District. The City of Kear-ney did not pursue the detachment. The City did, however, provide funding for the Horns legal costs in pursuing the detachment.

The matter came before the trial court for hearing on July 7, 2003. The Water District argued, inter alia, that the detachment was precluded by 7 U.S.C. § 1926(b). That statute provides protection for water districts that are participants in federal loan programs by prohibiting the district’s services from being “curtailed or limited by inclusion ... within the boundaries of any municipal corporation or other public body[.]” See Robertson Properties v. Pub. Water Supply Dist. No. 8 of Clay County, Missouri, Case No. WD 62968, 153 S.W.3d 320, 2005 WL 119827, handed down concurrently herewith, for a complete recitation of the statute and discussion of its policy and legislative history.

After hearing all the evidence and receiving argument from the parties, the court found that detachment was in the best interests of the inhabitants and landowners of the territory to be detached and that such detachment- would not adversely affect the remainder of the Water District. Relying upon Chance v. Pub. Water Supply Dist. No. 16, 41 S.W.3d 523 (Mo.App.2001), the court also held that 7 U.S.C. § 1926(b) was not applicable to the case. On September 9, 2003, the court approved detachment of'the Horns’ property. The Water District appeals.

Applicability of 7 U.S.C. Section 1926(b)

We find that this case is governed by this court’s ruling in Robertson Properties v. Pub. Water Supply Dist. No. 8 of Clay County, Missouri, Case No. WD 62968, 153 S.W.3d 320, handed down concurrently herewith, in which this court held that the trial court erroneously applied the law by focusing its analysis on the Missouri statute, Section 247.031, RSMo, instead of first engaging in a formal analysis of the applicable federal statute, 7 U.S.C. § 1926(b). This court also held in Robertson that the trial court erroneously relied upon Chance v. Pub. Water Supply Dist. No. 16, 41 S.W.3d 523 (Mo.App.2001), to conclude that Section 1926(b) was inapplicable, because Chance was distinguishable. Robertson was reversed and remanded.

In this case, as in Robertson, the trial court again based its ruling with regard to Section 1926(b) upon this court’s holding in Chance, 41 S.W.3d 523. The facts of this case are nearly identical to those in Robertson with one exception. This case differs slightly, in that there the City had already annexed the landowners’ property prior to the detachment action. Here, the landowners brought the detachment action first, with the understanding that the City would annex the property once it was detached. Despite that difference, we believe that Chance is similarly distinguishable from the case before us. The federal loan in Chance had not been made to the water district, but to the Jackson County Water Company. The district called itself a “participant” in the loan, apparently because it helped guarantee the loan. But because the district was not “the entity that received the loan,” the court said that Section 1926(b) did not apply. In this case, in contrast, the loan from the United States was made specifically to the Water District. Another significant distinction is that in Chance, the City of Independence did not intend to annex the land in question, whereas here, the City of Kearney clearly did intend to annex the Horns’ land. In this case, the trial court must address whether the City, the developer, and the Horns are working together to accomplish the very thing prohibited by Section 1926(b) — the curtailment of service by the water district and the annexation of the land to the City of Kearney — and whether, as a result, Section 1926(b) is a defense to this action.

For the reasons cited in Robertson, we reverse and remand the judgment in this case to the trial court for further proceedings consistent with this opinion.

All concur.


author: ROBERT S. BARNEY, Judge. JOHN E. PARRISH, Presiding Judge,

text:
    STATE of Missouri, Respondent, v. Zachary MILLER, Appellant.
    No. 26160.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 21, 2005.

      Bruce Galloway, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Following a bench trial, Appellant, Zachary Miller (“Defendant”), was convicted of the Class D felony of driving while intoxicated, in violation of section 577.010. Pursuant to section 577.023, the trial court sentenced Defendant, as a prior and persistent offender, to four years imprisonment but suspended the execution of the sentence and placed him in a five year supervised probation program with special conditions.

As best we discern Defendant’s sole point on appeal, he contends the State failed to prove he was a persistent offender under section 577.023.1(2), and requests the case be remanded solely for the purpose of re-sentencing him as a prior offender. Defendant asserts the trial court erred in overruling his objection that State’s Exhibit 2 lacked relevance, because it did not demonstrate the underlying Springfield municipal ordinance violation contained the same elements required by section 577.010. Accordingly, he asserts the trial court had no basis for finding the violation to be an “intoxication-related traffic offense” in determining he was a prior and persistent offender under section 577.023.

We preliminarily note the record does not contain a copy of the municipal ordinance by which Defendant challenges the determination that he was improperly found to be a persistent offender. While we are unable to determine the ordinance’s exact wording, our perusal of State’s Exhibit 2, in conjunction with our review of the transcript, throws light upon the substance of the municipal ordinance under which Defendant was charged and found guilty of an intoxicated related traffic offense.

The record reveals that on September 20, 2003, at approximately 11:57 p.m., Greene County Deputy Brian Archer observed a vehicle cross the center line and then make a turn without signaling. Deputy Archer initiated a traffic stop of the vehicle, a 1997 red Ford pickup, at Farm Road 80 and Lakewood Street in Greene County, Missouri. He identified the driver as Defendant and noted a moderate odor of intoxicants. Upon questioning, Defendant, who was twenty years old at the time, admitted to having consumed two beers that evening. Deputy Archer administered three field sobriety tests: walk and turn, one leg stand, and horizontal gaze nystagmus, all of which Defendant failed. After placing Defendant under arrest, Deputy Archer searched the vehicle and found a twelve-pack box of beer containing four unopened cans. At the Greene County Jail, Defendant refused to provide a breath sample.

A felony complaint was filed in Greene County Circuit Court on October 28, 2003, charging Defendant with the Class D felony of driving while intoxicated in violation of section 577.010. The complaint also alleged Defendant was a prior and persistent offender under section 577.023, based on an October 15, 2002, guilty plea to a DWI charge entered in the Associate Division of the Circuit Court of Greene County; and an August 6, 2002, guilty plea to a DWI charge entered in the Municipal Court of the City of Springfield. Defendant’s case went to trial on January 28, 2004.

At a pretrial hearing, the trial court took evidence on Defendant’s prior convictions. The State offered Exhibit 1, the Greene County DWI, which was admitted without objection. Defense counsel objected to Exhibit 2 — the City of Springfield DWI conviction — as irrelevant “to the issue of whether this is a predicate prior for this offense.”

The trial court found Defendant to be a prior and persistent offender beyond a reasonable doubt. Defendant then waived his right to a jury trial and proceeded with a bench trial. Defendant was found guilty of the Class D felony of driving while intoxicated beyond a reasonable doubt and later sentenced as related above. This appeal followed.

Defendant ultimately attacks the sufficiency of the evidence to support his sentence as a persistent offender. See State v. Gibson, 122 S.W.3d 121, 126 (Mo.App.2003). “The appellate court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case.” State v. Anderson, 107 S.W.3d 447, 450 (Mo.App.2003). Trial courts have broad discretion over questions regarding relevance and admissibility of evidence. State v. Bradley, 57 S.W.3d 335, 340 (Mo.App.2001). We will not overturn those decisions unless the court has clearly abused its discretion. Id. Judicial discretion is abused only when the trial court’s ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice. State v. Moore, 88 S.W.3d 31, 36 (Mo.App.2002). Statutory interpretation, however, is a question of law which this Court reviews de novo. State v. Harney, 51 S.W.3d 519, 532 (Mo.App.2001).

When determining whether the judgment in a court-tried case is supported by the evidence, the appellate court considers whether there is sufficient evidence for a reasonable finder of fact to have found the defendant guilty beyond a reasonable doubt. State v. Bewley, 68 S.W.3d 613, 617 (Mo.App.2002) Evidence is “sufficient” when the trier of fact could reasonably find the issue in conformity with the verdict. Id.

Missouri law establishes that municipal DWI convictions may be used to prove a defendant’s prior and persistent status. State v. Haskins, 950 S.W.2d 613, 615 (Mo.App.1997); § 577.023.14; see also State v. Meggs, 950 S.W.2d 608, 609-10 (Mo.App.1997).

Citing Gibson, 122 S.W.3d 121, Defendant argues that State’s Exhibit 2 was not relevant and should not have been admitted because it failed to show that the municipal ordinance that Defendant violated had the same elements as set out in section 577.010, i.e., “operates a motor vehicle while in an intoxicated or drugged condition,” and, therefore, the State’s proof was insufficient to support an enhancement of his penalty as a persistent offender under section 577.023.

In Gibson, the appellate court determined that the Kansas City municipal ordinance making it illegal to be in physical control of a motor vehicle while under the influence of alcohol and could not be used to enhance the Gibson defendant’s punishment under the persistent offender provisions of section 577.023. Id. at 126. That finding was based on the 1996 amendment to section 577.001.1, discussed in footnote 6, which removed the phrase “actual physical control” from the definition of either “drive,” “driving,” “operates,” or “operating” under Chapter 577. The Gibson court determined that since state law no longer prohibited a person from being in actual physical control of a motor vehicle while intoxicated, the municipal violation charging that conduct could no longer be considered an intoxieated-related traffic offense that would trigger sentencing as a persistent offender under section 577.023. Id. at 128-29.

However, Gibson is distinguishable from this case on its facts. From our review of the “Complaint & Information” which also constitutes part of Exhibit 2, it reveals four boxes indicating the unlawful act for which a motorist may be cited. The options are: “(1) operate, (2) park, (3) A.C.M.V., or (4) with Haz. Mat.” It is not clear from the record whether the term “A.C.M.V.” stands for “Actual Control of a Motor Vehicle.”

In Gibson, the defendant was cited for being in physical control of a vehicle while under the influence of alcohol. Gibson, 122 S.W.3d at 127. In the instant matter, however, Exhibit 2 reveals the deputy sheriff checked the box “operate”, denoting the unlawful operation of a vehicle, which comports with the statutory definition of “driving,” as defined in section 577.001.1.

As previously set out, section 577.010.1 provides that “[a] person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” The “Complaint & Information,” written out by Deputy Archer, sets out that Defendant “did unlawfully operate” a “vehicle,” “and then and there committed the following offense: Driving While Intoxicated.” The verbiage on the citation appears to this Court to recount all the necessary elements of section 577.010.1 in its amended form. See Anderson, 107 S.W.3d at 450 (“the statutory definition of the term ‘operate’ is found in [s]ection 577.001.1, which states that a person ‘operates’ a motor vehicle by ‘physically driving or operating a motor vehicle.’ ”).

Furthermore, we reject defendant’s argument that the underlying municipal offense was not sufficiently proven because the State did not present evidence as to the content of the municipal driving while intoxicated ordinance Defendant pled guilty to violating. For the reasons stated below, no such proof was required in order for the State to make a prima facie case for enhanced punishment based on this prior municipal conviction.

Pursuant to the express language of section 577.023.14, a trial court is authorized to find that a defendant is a prior or persistent offender, as defined by this statute, based upon “evidence of convictions received by a search of the records of the Missouri uniform law enforcement system [“MULES”] maintained by the Missouri state highway patrol.” Thus, MULES information alone is sufficient to prove the existence of a prior conviction. In our view, section 577.023.14 demonstrates clear legislative intent to establish the minimum evidentiary burden which must be met by the State in order to make a prima facie showing that a prior conviction qualifies as a predicate offense for purposes of enhanced punishment.

Because the municipal offense to which Defendant pled guilty involved alcohol, information concerning this offense had to be entered as a MULES record. See §§ 302.225.1; 577.051.1. The specific information required to be entered into MULES is prescribed by statute and administrative regulation. Subsections 1 and 2 of section 577.051 state, in pertinent part, as follows:

1. A record of the disposition in any court proceeding involving ... violation of county or municipal ordinances involving alcohol — or drug-related driving offenses shall be forwarded to the Missouri state highway patrol, or at the written direction of the Missouri state highway patrol, to the department of revenue, within fifteen days by the clerk of the court in which the proceeding was held and shall be entered by the highway patrol or department of revenue in the Missouri uniform law enforcement system records. Dispositions that shall be reported are pleas of guilty, findings of guilty, suspended imposition of sentence, suspended execution of sentence, probation, conditional sentences, sentences of confinement, and any other such dispositions that may be required under state or federal regulations. The record forwarded by the clerk shall clearly show the court, the court case number, the name, address, and motor vehicle operator’s or chauffeur’s license mimber of the person who is the subject of the proceeding, the code or number identifying the particular arrest, and any court action or requirements pertaining thereto.
2. All records received by the Missouri state highway patrol or the department of revenue under the provisions of this section shall be entered in the Missouri uniform law enforcement system records and maintained by the Missouri state highway patrol. Records placed in the Missouri uniform law enforcement system under the provisions of this section shall be made available to any law enforcement officer in this state, any prosecuting or circuit attorney in this state, or to any judge of a municipal or state court upon request.

(Emphasis added.) Some additional information for MULES is required by 11 C.S.R. 30-2.010(2), which states:

The record forwarded by the clerk to the Missouri State Highway Patrol involving any moving traffic violation conviction under the laws of this state, or county or municipal ordinance shall include, but not be limited to, the court date, the court, the court originating agency identifier (ORI) number, court case number, the name, address, race, sex and motor vehicle operator’s or chauffeur’s license number of the person who is the subject of the proceeding, the code or number identifying the particular arrest, the case disposition and any court action or requirements pertaining to and including, but not limited to, pleas of guilty, findings of guilty, suspended imposition of sentences, suspended execution of sentence, probation, conditional sentences and sentences of confinement. The record forwarded by the clerk involving a' violation of state law, or county or municipal ordinance regulating alcohol- and/or drug-related driving offenses shall include, in addition to the previously mentioned, the statute or ordinance number of the charge and the appropriate state charge code for the offense.

(Emphasis added.)

After examining State’s Exhibit 2, we find it contains all the information that would be entered into MULES concerning Defendant’s municipal conviction for driving while intoxicated. In particular, we note that, in conformity with the foregoing regulation, page 3 of State’s Exhibit 2 describes the ordinance number of the charge: “Violation Code 2305-0 DRIVING WHILE INTOXICATED CC/SGF 106-205 FROM 22-84[.j” We can find no requirement in section 302.225, section 577.051 or 11 C.S.R. 30-2.010(2) that, for a conviction involving a municipal ordinance, a copy of the underlying ordinance itself must be furnished to MULES or entered into MULES. All that is required is the specific identification of the ordinance number of the charge. Here, that was supplied both on the traffic ticket issued to Defendant and on the municipal court document entitled “City of Springfield Municipal Court Ticket List” that was included as part of State’s Exhibit 2.

In State v. Thomas, 969 S.W.2d 354 (Mo.App.1998), Thomas appealed from his conviction for driving while intoxicated on the ground that he was improperly sentenced as a persistent offender. The enhanced punishment was based upon Department of Revenue (“D.O.R.”) records which showed two prior municipal convictions for driving while intoxicated. On appeal, Thomas contended these D.O.R. records were insufficient proof of his prior convictions. Id. at 355-56. The Western District of this Court rejected Thomas’ argument for reasons we find applicable to the instant case. First, the appellate court noted that section 577.023.14 authorized enhanced punishment based upon evidence of convictions contained in MULES records. Id. at 356. Next, the court concluded that the D.O.R. records were sufficiently reliable to be admitted as proof of the two underlying municipal convictions for driving while intoxicated:

The Department of Revenue records satisfied the evidentiary requirements of section 577.023.5(14) [577.023.14]. While the legislature specifically authorized records of the Missouri Uniform Law Enforcement System maintained by the Missouri state highway patrol, the legislature did not limit the evidence of prior convictions to the MULES system. As evinced by the statutory language “but not be limited to,” the legislature recognized that other sources of evidence would contain sufficient indicia of reliability to establish the existence of prior convictions for driving while intoxicated. Like the MULES system, the Department of Revenue records contain the requisite indicia of reliability to satisfy the evidentiary requirements of section 577.023. The Department of Revenue records reflect prior convictions for driving while intoxicated just as the MULES system reflects prior convictions for driving while intoxicated. As the trial judge noted, the Department of Revenue records evinced that Mr. Thomas was convicted of two municipal violations for driving while intoxicated and both those convictions were appealed to and affirmed by the Jackson County Circuit Court. The Department of Revenue records, therefore, explicitly established that Mr. Thomas was twice convicted of driving while intoxicated. If the Department of Revenue records were erroneous, it was incumbent on Mr. Thomas to introduce evidence establishing that no such convictions occurred. Mr. Thomas, however, does not dispute the fact of his prior convictions. Because the Department of Revenue records contained sufficient indicia of reliability to establish the existence of Mr. Thomas’s prior convictions for driving while intoxicated, the state satisfied their burden of proving Mr. Thomas was a persistent offender under section 577.023.5(14) [577.023.14], The trial court, therefore, did not err in permitting the introduction as evidence of the Department of Revenue records reflecting Mr. Thomas’s two prior driving while intoxicated offenses as proof of his persistent offender status under section 577.023.1(2).

Id. at 356-57 (emphasis added).

We reach the same conclusion here. State’s Exhibit 2 contained all of the information that would be entered into a MULES record concerning Defendant’s municipal conviction for driving while intoxicated. Simply put, the content of Springfield City Ordinance 106-205 would not be a part of that record. Like the D.O.R. records in Thomas, the certified municipal courts records in State’s Exhibit 2 contained sufficient indicia of reliability to be admitted for the purpose of establishing Defendant had a prior municipal conviction for driving while intoxicated. The admission of State’s Exhibit 2 was sufficient to meet the State’s prima facie burden of proving Defendant was a persistent offender within the meaning of section 577.023.1(2).

The admission of State’s Exhibit 2, however, did not preclude Defendant from presenting his own evidence at the hearing for the purpose of demonstrating he was not, in fact, a persistent offender. See section 577.023.8 (guaranteeing a defendant’s right, at a prior and/or persistent offender status hearing, to full rights of confrontation, cross-examination and the opportunity to present evidence). If Defendant believed ordinance 106-205 did not actually proscribe the act of driving while intoxicated in congruity with the then-existing requirements of section 577.010, it was incumbent on him to introduce evidence to that effect. See Thomas, 969 S.W.2d at 357. Defendant’s failure to do so does not render State’s Exhibit 2 inadmissible or insufficient to prove his status as a persistent offender.

Defendant’s point is denied and the judgment and sentence of the trial court is affirmed.

PARRISH, P.J., dissents in separate opinion.

BATES, C.J., concurs.

JOHN E. PARRISH, Presiding Judge,

dissenting.

I respectfully dissent. In order for Zachary Miller (defendant) to be guilty of driving while intoxicated as a persistent offender, the state had to plead and prove he had two prior intoxication-related driving offenses. Defendant argues on appeal that the state failed to prove one of the two prior offenses it alleged defendant committed. I agree with defendant’s argument that the state did not prove one of the prior offenses.

One of the two prior offenses was a municipal ordinance violation from the City of Springfield, Missouri. However, the state presented no evidence of the content of the municipal ordinance in question. Without the ordinance having been put in. evidence, the trial court was left to speculate as to what conduct defendant committed with respect to the municipal ordinance violation. Without the ordinance having been in evidence, there was no showing that the municipal ordinance violation defendant committed was an intoxication-related driving offense. The only way to determine the content of a municipal ordinance is for it to be placed in evidence or for the parties to have stipulated as to its elements. As Rice v. James, 844 S.W.2d 64 (Mo.App.1992), explains:

As a general rule a court may not take judicial notice of the existence or contents of ordinances. Consumer Contact Company v. State, Dept. of Revenue, 592 S.W.2d 782, 785 (Mo.banc 1980). Rather, the trial court may recognize an ordinance only if it is admitted into evidence or stipulated to by the parties. Queen of Diamonds, Inc. v. Quinn, 569 S.W.2d 317, 319 (Mo.App.1978).

Id. at 68. See also University City v. MAJ Investment Corp., 884 S.W.2d 306, 307 (Mo.App.1994). This did not occur.

The principal opinion suggests this shortcoming is overcome by the language of the citation that was issued to defendant. I disagree. It is the ordinance that establishes the elements of the offense for which defendant was previously convicted. The language of the citation is a non se-quitur other than for the purpose of comparing its language at the trial for the municipal ordinance violation with the language of the ordinance in order to ascertain that the elements of the municipal offense have been correctly charged.

The principal opinion further suggests that because a conviction could be proven by a record maintained in MULES, and the same information that would have been submitted to MULES was available from the citation, the citation was sufficient to prove the municipal violation. The fallacy of this is that no MULES record was used to prove the municipal violation in question. The trial court was provided no proof that a MULES record existed.

The state failed to prove defendant was a persistent offender. I would reverse the conviction and remand the case to the trial court to permit the state the opportunity to prove the municipal conviction on which it relied was an intoxication-related driving offense and, if the state meets that burden, to sentence defendant as a persistent offender. If the state cannot meet its burden, defendant should be sentenced as a prior offender.

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

      . Section 577.023.1(3) provides that:
      A “prior offender” is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior, offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.
      In pertinent part, section 577.023.1(2) provides that:
      A “persistent offender” is one of the following:
      (a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related offense for which the person is charged!.]

      . In pertinent part, section 577.023.1(1) provides that:
      An "intoxicated-related traffic offense” is driving while intoxicated ... 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 577.010.1 provides that:
      A person commits the crime of “driving while intoxicated” if he operates a motor vehicle while in an intoxicated or drugged condition.

      . The transcript reveals the trial court referred to Exhibit 2 as being "a certified copy of a court docket sheet from the municipal court of Springfield, Missouri.” In the legal file submitted to this Court by Defendant, Exhibit 2 also sets out a "Complaint & Information — Missouri Uniform Complaint and Summons,” dated March 23, 2002, describing a charge filed in the "Municipal Court of Springfield, Missouri," of "(First) Driving While Intoxicated” and being "In violation of 106-205.” The "ORD” box was checked, denoting ordinance, and under the words "DID UNLAWFULLY,” the box "OPERATE” was checked. Additionally, the exhibit contains a "PLEA OFFER/AGREEMENT”, showing Defendant pled guilty to a DWI charge. The same sheet contains a paragraph stating it is a "COURT ORDER” and showing that the plea was “incorporated as a docket entry and APPROVED by the court as its judgment” on August 6, 2002.

      . Section 577.023.14 reads, in pertinent part: A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

      . We note that in Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003), the Missouri Supreme Court held that removal of the "actual physical control” language from the definition of driving or operating a motor vehicle, narrowed its scope so that physical control of a vehicle alone no longer constituted "driving” for purposes of Chapter 577. See also Gibson, 122 S.W.3d at 128.