author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Matthew L. CARRELL, Appellant.
    No. WD 62628.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2004.
    Application for Transfer Denied Dec. 21, 2004.
    James F. Crews, Tipton, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Chief Judge, THOMAS H. NEWTON, Judge and LISA WHITE HARDWICK, Judge.
   ORDER

PER CURIAM.

Matthew Carrell appeals from his conviction on one count of possession of a controlled substance with the intent to distribute, § 195.211, RSMo 2000. Appellant was sentenced as a prior and persistent drug offender to a term of twenty-five years in the Missouri Department of Corrections. No jurisprudential purpose would be served by a formal written opinion. However, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 80.25(b).


source: Caselaw Access Project

author: ROBERT G. ULRICH, Judge.

license: Public Domain

text:
    C. Benjamin BASYE and Joanne Basye, Husband and Wife; and Stuart R. Basye and Debra J. Basye, Husband and Wife, Appellants, v. FAYETTE R-III SCHOOL DISTRICT BOARD OF EDUCATION, Respondent.
    No. WD 63214.
    Missouri Court of Appeals, Western District.
    Sept. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2004.
    Application for Transfer Denied Dec. 21, 2004.

      Dennis J. Campbell Owens, Kansas City, MO, for Appellants.
    Steven L. Wright, Columbia, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

C. Benjamin Basye and Joanne Basye, husband and wife, and Stuart R. Basye and Debra J. Basye, husband and wife, collectively Appellants, appeal the judgment dismissing their petition to quiet title in certain real property located in Howard County. They alleged in their petition that they are owners of certain real property except a one-acre lot upon which exists a structure at one time used as a school. The one-acre lot is known as the “Union School lot.” They also alleged that the Fayette R-III School District Board of Education also claims an interest in the Union School lot “for school purposes” and that the lot ceased being used “for school purposes” when public school ceased to be held at the location in 1945. The School District filed its motion to dismiss, which claimed that Appellants failed to state a cause of action and that the ten year statute of limitations had run.

Appellants assert two points on appeal. They claim that the trial court erred in dismissing their petition to quiet title because the petition asserted an interest in the contested real property, the factual nature of their claim, and that the School District’s claim to the property was adverse to theirs, thus stating a cause of action under Missouri law. They also claim, as point two, that the trial court erred in dismissing their petition because no limitation of action applies to any land appropriated for public use or belonging to the state or to a deed that is void on its face due to an insufficient property description, all of which they claim exist in this case.

The judgment dismissing Appellants’ petition is affirmed.

Standard of Review

Review of a trial court’s judgment granting a motion to dismiss is de novo. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App. W.D.2004). When the trial court sustains a defendant’s motion to dismiss without stating the basis for the decision, the appellate court will presume that the dismissal was based on one of the grounds stated in the motion to dismiss and will affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss. Miller v. Enyeart, 893 S.W.2d 901, 904 (Mo.App. W.D.1995).

A motion to dismiss properly raises the defense of statute of limitations, and if it appears that the cause of action is barred by time limitations, the motion is properly sustained. Braun v. Petty, 31 S.W.3d 521, 523 (Mo.App. E.D.2000). “If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss the petition unless it is clearly established on the petition’s face and without exception that the cause of action is time barred.” Id.

Dismissal of Petition by Trial Court

Rule 67.03 states that an involuntary dismissal of a petition shall be without prejudice unless the order specifies otherwise. The dismissal of a petition without prejudice is generally not adjudication on the merits and permits the party to re-file the action, unless otherwise barred. Waltrip v. Davis, 899 S.W.2d 147, 148 (Mo.App. E.D.1995). Appellate courts have jurisdiction over final judgments only. Snelling v. Bleckman, 935 S.W.2d 93, 94 (Mo.App. E.D.1996). Dismissal of a petition without prejudice is not a final judgment from which appeal may be taken. Id. Thus, appellate courts normally do not have jurisdiction over cases where the petition has been dismissed without prejudice. Dismissals without prejudice are ap-pealable under certain circumstances, however. Helms v. Am. States Ins. Co., 886 S.W.2d 220, 221 (Mo.App. W.D.1994). The question is whether the dismissal is merely the dismissal of the petition or whether it dismissed the action itself. Id. If the trial court’s dismissal effectively dismissed the cause of action and not merely the pleading, then the dismissal was a final judgment and is appealable. Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991); Helms, 886 S.W.2d at 221. “If the dismissal was such that a refiling of the petition at that time would be a futile act, then the order of dismissal is appealable.” Helms, 886 S.W.2d at 221 (quoting Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App. E.D.1985)).

The trial court did not designate whether the dismissal of Appellants’ petition was with or without prejudice. Ordinarily, such dismissal is without prejudice and is not appealable. The practical effect, however, is that Appellants are precluded from refiling their petition because, although the trial court did not state a reason for the dismissal, the School District’s motion asserted that the ten year statute of limitations had run and, therefore, the petition did not state a cause of action upon which relief could be granted. Thus, the dismissal effectively dismissed the case and not simply the petition. This court, therefore, has jurisdiction to review the points on appeal.

Ten Year Statute of Limitations

Appellants claim as point two that the trial court erred in dismissing their petition based on the running of the ten year statute of limitations asserting that no limitation of action applies to any land appropriated for public use or belonging to the state or to a deed that is void on its face. Appellants’ point two is considered first because if the statute applies and they failed to file their action timely, they are precluded from successfully filing their claim.

In its motion to dismiss, the School District argued that Appellants’ petition to quiet title was barred by the ten year statute of limitations. Citing the plaintiffs’ acknowledgement in their petition that school was conducted at the site until 1945, the School District argued that under any theory of plaintiffs’ case, the statute of limitations barred the action against the School District.

An action to quiet title is governed by the ten year statute of limitation contained in section 516.010. Pettus v. City of St. Louis, 362 Mo. 603, 242 S.W.2d 723, 726 (1951); Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69, 70 (1947); Miller, 893 S.W.2d at 904-05. Section 516.010 provides:

No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.

Appellants cite section 516.090 in support of their position that statutes of limitation do not apply to bar claims as to title of any land appropriated for a public use or which belong to the state. The statute states, “Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state.” § 516.090. Thus, applying Appellant’s interpretation of section 516.090, a plaintiff could institute a title claim against the state for certain real estate and the state could not assert as a defense a statute of limitations. Appellant’s interpretation of the statute is flawed.

The purpose of section 516.090 is to protect against the loss of public lands due to the carelessness or oversight of the people charged with protecting the public’s interests. Empire Dist. Elec. Co. v. Gaar, 26 S.W.3d 370, 376 (Mo.App. S.D.2000). It precludes natural or corporate persons from claiming public lands on the basis of adverse possession. Rice v. Huff, 22 S.W.3d 774, 781 (Mo.App. W.D.2000). The statute does not, however, prevent public bodies such as a school district from asserting the statute of limitations against third parties.

Additionally, if Appellants’ argument that section 516.090 prevents the School District from asserting any statute of limitations with respect to property being used for its public purposes, then public entities could never acquire property through adverse possession. The public, however, can acquire title to real property by adverse possession, just as an individual can. S. Reynolds County Sch. Dist. R 2 v. Callahan, 313 S.W.2d 35, 38 (Mo.1958); Rector v. Mo. Dept. of Natural Res., 685 S.W.2d 225, 227 (Mo.App. E.D.1984). In analyzing the predecessor of section 516.090, the Missouri Supreme Court in Dudley v. Clark, 255 Mo. 570, 164 S.W. 608, 613 (1914), stated, “The statute is directed to a charitable use holding its lands in spite of limitation, not to forbidding it gaining title by limitation.”

Appellants also argue that the statute of limitations is inapplicable because the disputed deed is void on its face in that it contains an insufficient property description. Appellants cite Braun v. Petty, 31 S.W.3d 521 (Mo.App. E.D.2000), in support of this argument. Braun held that if the land description in a tax deed is void on its face, it does not start the running of the three year statute of limitations, section 140.590, for challenging a sale of land for taxes. Id. at 523 (citing Heppler v. Esther, 534 S.W.2d 533, 537 (Mo.App.1976)). Braun involved two statutes, sections 140.530 and 140.590. The first provides, in pertinent part:

No sale or conveyance of land for taxes shall be valid if ... the description is so imperfect as to fail to describe the land or lot with reasonable certainty....

§ 140.530. Section 140.590 provides, in pertinent part:

Any suit or proceeding against the tax purchaser ... for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes ... shall be commenced within three years from the time of recording the tax deed....

The holding in Braun is unique to an action to set aside a collector’s deed. Appellants fail to cite and research by this court fails to yield any cases applying the holding of Braun to a conveyance of land other than for taxes or to prevent the statute of limitations set out in section 516.010 from running. Braun does not apply in this case.

Appellants’ petition alleges that they are the owners of certain real property excepting a one acre lot to be used “for school purposes” and that the School District claims an interest in the lot “for school purposes.” The petition also alleges that the lot ceased to be used for school purposes in 1945. The statute of limitations of section 516.010 applies to bar Appellants’ cause of action. The trial court did not err in dismissing the petition based on the running of the statute of limitations.

The judgment of the trial court is affirmed.

HOWARD, P.J. and BRECKENRIDGE, J. concur.

      . Appellants’ petition and their brief on appeal are unclear regarding the type of estate they claim was created by the 1892 deed conveying the lot to the school, whether it be a determinable fee simple with possibility of reverter or a defeasible fee simple with right of entry for condition broken. Any issues regarding the type of estate created are, therefore, not addressed in this opinion.

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

      . Although the Supreme Court held in Powell v. Powell, 267 Mo. 117, 183 S.W. 625, 628 (1916), and later in Kline v. Groeschner, 280 Mo. 599, 219 S.W. 648, 651 (1920), that no limitation is fixed for bringing a quiet title action under section 527.150, the Court held in Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69, 70-71 (1947), that suit to quiet title was governed by the then existing ten year statute of limitation, predecessor of section 516.010. The Court in Hamilton adopted the dictum expressed in Haarstick v. Gabriel, 200 Mo. 237, 98 S.W. 760, 762 (1906). Pet-tus, the most recent Supreme Court decision on the issue, followed Hamilton.


text:
    STATE of Missouri, Respondent, v. Stephen Paul MAGINNIS, Appellant.
    No. WD 62896.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2004.
    Application for Transfer Denied Dec. 21, 2004.
    Margaret Mueller Johnston, Asst. Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Attorney General, Jefferson City, MO, for respondent.

      Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   PER CURIAM.

Stephen Paul Maginnis appeals his convictions for trafficking in the second degree, § 195.223, RSMo.2000, and possession with intent to distribute, § 195.211, RSMo.2000, for which he received concurrent prison sentences of eighteen years and twelve years, respectively. Maginnis asserts that the trial court erred in overruling his motion to suppress and in admitting the evidence that led to his conviction because it was obtained as the result of an unlawful search and seizure.

Statement of Facts

The evidence is viewed in the fight most favorable to the trial court’s judgment. At 3:30 p.m. on February 28, 2002, while traveling on 1-70 in Lafayette County, Appellant Maginnis was pulled over by Corporal Brian Haggerty of the Missouri State Highway Patrol. Haggerty is a canine officer, and his dog was riding in the patrol car that day. According to Haggerty, Maginnis was stopped for the following traffic violations: traveling in the passing lane for seven miles without any surrounding traffic; traveling three miles per hour over the seventy miles-per-hour speed limit; and moving from the passing lane into the right lane without use of a turn signal.

The officer approached Maginnis’ vehicle on the passenger side. Maginnis gave the officer a Nebraska driver’s license. The officer asked Maginnis to go with him back to the patrol ear. Once in the patrol car, the officer asked Maginnis where he was headed. Maginnis said he was traveling from Nebraska to Winter Haven, Florida, to help sort some items that belonged to his recently deceased brother. The officer asked Maginnis if he was from Florida and questioned him as to how long he would be there. Haggerty then asked Maginnis about his passenger. Maginnis stated that the passenger was going with him to help because Maginnis’ mother is handicapped.

Haggerty also asked Maginnis about his employment, whether he was working right now, whether his passenger worked for him, and how long he had known the passenger: Q. Are you working right now? A. Am I working? Q. Are you employed? A. I have my own business, “Tile With Style.” Q. You lay tile? Q. Does this guy work for you? Q. How long have you known each other? A. A couple of years. Q. Does he have the registration up there or do you have it with you? Q. Is it in the glove compartment? A. Probably. Q. Let me go have him get it.

Before exiting the vehicle, Haggerty asked Maginnis if he had “any weapons or anything” in his pockets, and Maginnis said he did not.

Corporal Haggerty then returned to Maginnis’ vehicle to talk with the passenger. The officer testified that in that “very brief’ conversation, he asked the passenger where they were headed. The passenger said he did not know and that he was just headed “up the road.” He said they were coming from Nebraska, but he was not sure what city or state he was traveling to. The officer thought the passenger was trying to quickly end the conversation. The officer asked two more times where they were going, and the passenger seemed disinterested in talking. The passenger then told the officer to “talk to the driver and get that information.”

Haggerty, of course, found it suspicious that two people coming from the same place, who had known each other for several years, did not both know where they were going. He also was suspicious because the passenger acted frustrated or defensive and was trying to make him “go away.” At some point, Haggerty asked the passenger for identification and was given a copy of a Colorado birth certificate. The passenger also gave the officer an insurance card he had found in the vehicle, and the officer returned to the patrol car.

Upon returning to the patrol car, Hag-gerty again asked Maginnis where he and the passenger were coming from, and Maginnis replied Nebraska. When shown the insurance card provided by the passenger, Maginnis told Haggerty that the insurance card was not his. He explained that he keeps his registration and insurance card in a visor-mounted CD holder, and that his must have gotten switched with his wife’s. Maginnis offered, “[I]t’s all accurate. I mean, if you want to write me a ticket to make sure that I come back here and show you guys that I have all that stuff....” He commented that he did not feel too smart for being on the road without his registration and proof of insurance. The officer replied that he is “not interested in just handing out tickets and handing out tickets.”

The officer then asked Maginnis if they had any luggage with them, how much luggage they had, and which bags belonged to whom. He informed Maginnis that the passenger said he did not know where or even what state they were going to. Indicating surprise, Maginnis stated, “What in the world is he thinking? He knows where we’re going.” The officer told Maginnis that the passenger’s comments made him uneasy. Maginnis asked to go with the officer to speak to the passenger, but the officer refused, stating, “I want to find out what [the passenger’s] deal is.”

Corporal Haggerty testified later that he was suspicious of Maginnis’ demeanor, in “that nothing was really bothering him.” Haggerty also stated that Maginnis was “overly apologetic,” and that Maginnis’ level of anxiety rose after Haggerty returned to the patrol car after speaking with the passenger. Haggerty found it suspicious that Maginnis offered an explanation as to why his registration was not in the vehicle. Haggerty also thought the passenger was odd because he was not conversational.

In Haggerty’s Probable Cause Affidavit, dated February 28, 2002, and filed March 1, 2002, the only basis for reasonable suspicion was the inconsistent statements of the driver and passenger regarding the purpose and destination of their trip.

Haggerty asked Maginnis for consent to search the vehicle and told him he would just have his dog sniff the car if he refused. Maginnis declined to consent, saying he did not think it was necessary. Maginnis had been in Haggerty’s patrol car for a little over ten minutes at this point. Before exiting the vehicle, the officer had Maginnis empty his pockets. The officer then returned to Maginnis’ vehicle and directed the passenger to exit the vehicle, empty his pockets, and then walk away from the vehicle some distance down the highway. Haggerty then got his dog out of his vehicle and proceeded to Magin-nis’ vehicle.

The dog indicated that there were drugs in the car by scratching on the trunk near the keyhole. Haggerty called for assistance. Haggerty told Maginnis that the dog indicated there were drugs in the car, which gave him “probable cause” to search the vehicle. Maginnis offered that there had “been dope smoked in that car before ... there’s a roach in the ashtray, I might as well tell you now.”

Other officers arrived on the scene. The passenger was placed in another patrol car. One of the other officers asked Maginnis if everything was current on his driver’s license, and, at that point, radioed in the license for information on Maginnis and his passenger. The radio report came back that Maginnis’ license was “valid through Nebraska, 2005.” This was the first attempt to verify the accuracy of Maginnis’ license.

In the search of Maginnis’ vehicle, Hag-gerty found rolling papers and two white powder rocks located in the pocket of a shirt on the driver’s seat. He placed Mag-innis and the passenger under arrest at this point. In the trunk, he found a bag containing drug paraphernalia and a safe containing a handgun and a substantial quantity of substances that appeared to be drugs. The substances in the safe were later determined to be marijuana and methamphetamine.

Maginnis was charged with the class A felony of trafficking in the first degree and the class B felony of possession of a controlled substance with intent to distribute, deliver, or sell. He was charged as a prior drug offender.

Maginnis filed a motion to suppress the evidence found in his vehicle. A hearing was held, and the motion was denied. In an amended information, the trafficking charge was reduced to second-degree trafficking. Maginnis waived his right to a jury trial, and a bench trial was held. Maginnis was found guilty on both counts and sentenced by the court. In his motion for judgment of acquittal or for new trial, Maginnis raised the trial court’s error in admitting the evidence seized in the search of his vehicle. He alleged that the evidence was the fruit of an unlawful search and seizure in violation of his constitutional rights. The motion was denied, and Mag-innis now appeals.

Unlawful Search and Seizure

Maginnis asserts that the trial court erred in admitting the evidence seized from his vehicle during the traffic stop. Maginnis contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated because (1) the officer’s questioning went far beyond the purpose of the traffic stop and (2) the officer did not have objective, reasonable suspicion of further criminal activity to justify detaining Maginnis in order to conduct a drug-dog sniff of his vehicle.

In this case, the officer’s questioning of Maginnis in the patrol vehicle was captured in its entirety on the audio portion of the videotape. There is no factual issue as to the content of the conversation. Because this court has a front row seat (so to speak) as to the exchange between the officer and Maginnis, we need not defer to the officer’s characterization of Maginniss’ comments and demeanor. Whether the Fourth Amendment has been violated is a matter of law that we review de novo in light of the undisputed facts. State v. Davalos, 128 S.W.3d 143, 147 (Mo.App.2004).

Maginnis points out that Missouri law allows only limited questioning by an officer during a traffic stop. The officer may ask questions beyond the scope of the stop only if there is an objectively reasonable suspicion of criminal activity. State v. Slavin, 944 S.W.2d 314, 318 (Mo.App.1997); State v. Bradshaw, 99 S.W.3d 73, 77 (Mo.App.2003). During a traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation. Bradshaw, 99 S.W.3d at 77. As long as the officer is investigating these items, running the records check, and issuing a citation, the officer may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver. See State v. Watkins, 73 S.W.3d 881 (Mo.App.2002).

The evidence here shows that even if the initial stop was about infringement of traffic laws, the interrogation of the two travelers was not at all about traffic violations, but rather was about the officer’s desire to obtain the opportunity to flush out any possible drug activity. Thus, our inquiry must focus on whether the detention and questioning for such a purpose under these circumstances were permissible under Fourth Amendment standards.

The officer promptly began the unrelated questioning, even though Maginnis, who produced his license, had done nothing other than commit common minor traffic violations. The officer questioned Magin-nis as to his trip purpose and destination, and also the expected length of the trip and whether Maginnis formerly lived in Florida. He also asked about Maginnis’ employment, his passenger, the passenger’s employment, and how long he had known the passenger. The initial interrogation of Maginnis in the patrol car did nothing we could determine to create any suspicion. In our review of the audio of that interrogation, we failed to detect anything unusual in Maginnis’ mannerisms or responses. Maginnis seemed relatively relaxed, and not particularly anxious. He sounded cooperative and conversational, not upset or discouraged about being stopped, and maybe slightly given to a light-hearted disposition. Even if that were grounds for reasonable suspicion, we fail to see that Maginnis’ demeanor under the extended questioning was pertinent in view of the fact that the substantial interrogation itself was not germane to the stop.

Maginnis contends that under the Fourth Amendment it is not reasonable for the officer, in a routine traffic stop, to detain travelers for the purpose of interrogation on matters unrelated to the traffic violation, without, at that point, having any reasonable, articulable grounds for suspicion of illegal activities. We agree.

Reasonable suspicion must be based on specific articulable facts indicating that criminal activity is afoot. State v. Woolfolk, 3 S.W.3d 823, 829 (Mo.App.1999). “Reasonable suspicion” must be more than an inchoate hunch. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). An investigative detention pursuant to a stop must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). An officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993).

Here, the officer’s detention of Maginnis and his companion had nothing to do with excessive speed or improper lane usage. Maginnis promptly produced his license. The officer decided to engage in questioning unrelated to the traffic stop. This is not a case in which the officer, while in the process of investigating license and registration, was also engaged in casual discussion of the destination or nature of the trip. Here, the officer did not ask about registration papers until after he had finished questioning Maginnis about unrelated matters, almost a full four minutes (according to the video tape) after the officer first commenced discussion with Maginnis in the patrol car.

In United States v. Pruitt, 174 F.3d 1215, 1217-18 (11th Cir.1999), a driver named Pena was stopped for speeding. The officer asked Pena to step out of his van and accompany him to the rear of the van. After advising Pena he was speeding, the officer asked Pena his age and whether he owned the van. They went to the police car. There the officer asked questions unrelated to the stop, such as where Pena’s family resided. The officer then left to retrieve Pena’s registration and insurance papers from the van. While at the van, he asked the passengers who they were, who they were planning to visit in Memphis, and what the street address was. The officer then returned to the police vehicle and asked Pena to identify the passengers, how much he paid for the van, what kind of work he did for a living, whether one of the passengers was his brother, and why they had different last names. After Pena refused to consent to a search, the officer requested that a drug dog be brought to the scene. The dog indicated the presence of drugs, and the van was searched. The court, in reversing the convictions, stated:

At the time Pena ... and the others were stopped, [the officer] had before him evidence of speeding. His questioning following the stop, therefore, should have been directed to securing Pena’s license, registration and insurance papers. Once such brief questioning was completed, Pena and the others should have been free to go, as [the officer] was provided at that time with no reasonable suspicion of their criminal activity. In such circumstances, additional “fishing expedition” questions such as “What do you do for a living?” and “How much money did your van cost?” are simply irrelevant, and constitute a violation of Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)].

Pruitt, 174 F.3d at 1221.

In this case, Officer Haggerty, who had a drug dog with him, diverted immediately from enforcement of the traffic laws and undertook, presumably on a hunch, to question the travelers until articulable suspicion developed. The officer’s “fishing expedition” questions went well beyond enforcement of the traffic laws. As already noted, the officer did not even ask for registration, or run a computer check of license or vehicle, until after the unrelated questioning.

While the unrelated questioning might have seemed reasonable to Haggerty based on his hunch (and, indeed, his hunch turned out to be accurate), the question before us is whether the Fourth Amendment permits such unrelated questioning as a routine part of a traffic stop. At the time the officer launched the unrelated questioning, it was still a routine traffic stop with no articulable ground for suspicion. There was no grounds for suspicion of driving while intoxicated or any other criminal activity. We are aware of no authority that approves such unrelated questioning in a routine traffic stop as being within the “reasonableness” standards of the Fourth Amendment. We conclude that under the established standards of the Fourth Amendment, the officer’s questions delayed the resolution of the traffic violation and impermissibly detained Maginnis beyond what was reasonable in view of the nature of the stop.

We hold that the evidence was improperly seized and should have been excluded. In view of the extant authority, the trial court erred. Without the improperly seized items in evidence, there was insufficient evidence to convict. We have no choice but to reverse the conviction.

The judgment is reversed.


text:
    Jonna RILEY, Appellant, v. MARSHALL HABILITATION CENTER, Respondent.
    No. WD 63473.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Dec. 21, 2004.
    Richard L. Beaver, Jefferson City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Yvette Guerra Hipskind, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before BRECKENRIDGE, P.J., and SMART and HOWARD, JJ.
   Order

PER CURIAM.

Appellant Jonna Riley (“Riley”) appeals from the Circuit Court of Cole County’s judgment affirming the decision of the Missouri Personnel Advisory Board (“the Board”), which affirmed Riley’s suspension without pay from her employer, Respondent Marshall Habilitation Center (“MHC”). In Point I, Riley argues the Board erred in ruling that Section 36.370.1 RSMo authorizes suspensions of employees without pay pending resolution of criminal charges, because interpreting Section 36.370.1 RSMo to apply to criminal charges is contrary to the presumption of innocence that is impliedly encompassed in the United States Constitution, in that Riley was suspended without pay from her merit system employment because of pending criminal charges unrelated to her employment. In Point II, Riley argues the Board erred in finding there was no convincing evidence that Riley’s suspension was for other reasons than what was stated in the suspension notices, because the finding is not supported by the record as a whole and is thus arbitrary, capricious, unlawful and an abuse of discretion in that the evidence fully established that MHC actually suspended Riley for numerous reasons not referred to in the suspension notice and therefore the notices violate the due process requirements of Section 36.370 RSMo. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Respondent, v. Rick J. CHRISTIAN, Appellant.
    No. ED 83713.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.

      Irene Karns, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Rick Christian (Defendant) appeals from the judgment upon his convictions by a jury for the felony offense of second degree assault of a law enforcement officer, Section 565.082, RSMo 2000, for two misdemeanor offenses of third degree assault of a law enforcement officer, Section 565.083, RSMo 2000, and for two counts of misdemeanor resisting arrest, Section 575.150, RSMo 2000. Defendant was sentenced as a prior and persistent offender to fifteen years’ imprisonment for second degree assault of a law enforcement officer, and for six months for each of the remaining convictions, with the terms to be served concurrently. In his sole point, Defendant argues the trial court erred in refusing to appoint the public defender to represent him and forcing him to trial pro se. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Robert NICHOLSON, Appellant.
    No. ED 83677.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.
    Amanda R. Schehr, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan Buchheim, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Robert Nicholson (Defendant) appeals from the sentence and judgment upon his conviction by a jury for possession of a controlled substance, Section 195.202, RSMo 2000, for which he was sentenced as a prior and persistent offender, Sections 558.016 and 588.021, RSMo 2000, to eight years’ imprisonment. Defendant contends the trial court plainly erred in sentencing Defendant as a prior and persistent offender because the State only proved one prior offense and the trial court did not made a finding that Defendant was both a prior and persistent offender required by Section 558.021, RSMo 2000 and Defendant was thereby prejudiced by enhancing his range of sentence.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. James A. GARDNER, Appellant.
    No. ED 82217.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

James A. Gardner (“defendant”) appeals the judgment on his conviction of one count of statutory sodomy in the first degree. Defendant claims that the trial court abused its discretion in denying his request for a mistrial when the jurors informed the court that they had reached a verdict on two of the counts with which defendant had been charged but could not reach a verdict on the other two counts charged against defendant.

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

The judgment of the trial court is affirmed in accordance with Rule 80.25(b).


text:
    Ceasar DYNES, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 83957.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.

      S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for ■ respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., MARY K. HOFF, J.
   ORDER

PER CURIAM.

Ceasar Dynes (Movant) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief after an evi-dentiary hearing. Previously we affirmed Movant’s convictions of robbery in the first degree, section 569.020 RSMo 2000 and armed criminal action, section 571.015. State v. Dynes, 101 S.W.3d 342 (Mo.App. E.D.2003). Movant now contends his trial attorney provided ineffective assistance by failing to investigate and call two witnesses at his trial.

We have reviewed the briefs of the parties, the legal file and the record on appeal, and find the claims of error to be without merit. No error of law appears. An opinion would have no precedential value.

The judgment of the trial court is affirmed pursuant to Rule 84.16(b).

      . All statutory references Eire to RSMo 2000, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Carl MITCHELL, Appellant.
    No. ED 83922.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Carl Mitchell (“Defendant”) appeals from a judgment entered upon his conviction and sentence following a jury verdict of guilty on charges of first degree domestic assault, armed criminal action, and felonious restraint. The trial court sentenced Defendant to consecutive terms of five years for domestic assault and three years for armed criminal action. The trial court also fined Defendant in the amount of $5,000.00 for felonious restraint.

On appeal, Defendant argues that the trial court erred in not granting his request for a mistrial after a State’s witness stated he was called to Defendant’s home to investigate a forcible rape. Defendant asserts that this statement constituted inadmissible evidence of an uncharged crime and resulted in undue prejudice. Defendant also argues that the trial court erred in allowing testimony of another State witness because it was inadmissible hearsay.

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

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Dedric L. RASH, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 83919.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., MARY K. HOFF, J.
   ORDER

PER CURIAM.

Dedric L. Rash (Movant) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Previously we affirmed Movant’s convictions of attempted kidnapping, sections 564.011and 565.110 RSMo 2000 and robbery in the second degree, section 569.030. State v. Rash, 89 S.W.3d 526 (Mo.App. E.D.2002). Movant now contends his trial attorney provided ineffective assistance by failing to object to the admission of telephone records without a proper foundation to establish their authenticity.

We have reviewed the briefs of the parties, the legal file and the record on appeal, and find the claims of error to be without merit. No error of law appears. An opinion would have no precedential value.

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

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


text:
    David HARVEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83316.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.

      Andrea K. Spillars, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   PER CURIAM.

David Eugene Harvey (“Movant”) appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Movant claims that his plea counsel was ineffective and that his plea was therefore involuntary because counsel allegedly promised Mov-ant that he would not be sentenced to nine years, the maximum sentence available under the agreed upon plea agreement. We dismiss the appeal.

Movant was charged and pleaded guilty as a prior and persistent offender to one count of forgery in violation of section 570.090 RSMo (2000). He was ultimately sentenced pursuant to a plea agreement to nine years of incarceration in the Missouri Department of Corrections. Movant then filed a pro se motion to vacate, set aside, or correct the judgment or sentence, which was later amended. The court denied his motion for post-conviction relief on the merits and without an evidentiary hearing. Movant timely filed his notice of appeal.

We begin with the State’s argument that Movant’s appeal should be dismissed because Movant failed to appear for his sentencing hearing, scheduled for May 17, 2002. The state relies on the judicially-created “escape rule,” which provides that defendants who escape or flee during trial or post-trial proceedings forfeit their right to appeal. Fogle v. State, 99 S.W.3d 63, 65 (Mo.App.2003) (citing State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995)). A defendant’s failure to appear for sentencing constitutes an “escape” under the rule. State v. Crump, 128 S.W.3d 642, 643 (Mo.App.2004). The rule applies to motions for post-conviction relief, as wells as to appeals on the merits. Fogle, 99 S.W.3d at 65. The escape rule can be used to dismiss post-conviction appeals regardless of whether the motion court reached the merits of the movant’s claims or the court itself dismissed the motion by invoking the escape rale. Id.

Whether or not to use the escape rule to dismiss an appellant’s claims of error rests within the sound discretion of the appellate court. Troupe, 891 S.W.2d at 811. “Our [appellate court’s] inquiry is focused on whether the escape adversely impacts the criminal justice system.” Fogle, 99 S.W.3d at 65. In Fogle, movant’s escape was found to adversely impact the criminal justice system when he failed to appear resulting in a seven-week delay of sentencing, the issuance of a capias warrant for his arrest, and his extradition from Illinois. Id. In Kemper v. State, we found that a movant’s failure to appear, causing a two-month delay in sentencing and the issuance and execution of a warrant, “flouted the authority of the courts from which he was seeking post-conviction relief and had an adverse impact on the administration of criminal justice.” 129 S.W.3d 439 (Mo.App.2004) (quoting Fogle, 99 S.W.3d at 65).

In this case, as in Fogle and Kemper, Movant’s failure to appear for sentencing had an adverse impact on the administration of the criminal justice system. Movant’s sentencing was scheduled for May 17, 2002. When he did not appear, a capias warrant was issued for his arrest. The warrant was later executed and Mov-ant was sentenced on July 19, 2002. Mov-ant’s escape resulted in a two-month delay and required that law enforcement resources be employed to capture him. We agree with the State that the escape rule is applicable in this situation. Those who seek protection from the legal system in the form of post-conviction relief must be willing to abide by all the rules and decisions of that legal system. Troupe, 891 S.W.2d at 810.

Movant’s appeal is dismissed.


text:
    STATE of Missouri, Respondent, v. David K. BYERS, Appellant.
    No. ED 83958.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.
    Timothy Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., MARY K HOFF, J.
   ORDER

PER CURIAM.

David Byers appeals from the judgment entered on a jury verdict finding him guilty of driving while intoxicated in violation of section 577.010 RSMo 2000. The trial court sentenced Defendant to three years of imprisonment.

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

The judgment is affirmed. Rule 80.25(b).


text:
    STATE of Missouri, Respondent, v. Kenneth SISAK, Appellant.
    No. ED 84028.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Kenneth Sisak appeals the judgment on his conviction of one count of possession of a controlled substance. Sisak claims that the trial court erred in overruling his counsel’s objection to the state’s peremptory strike of an African-American juror.

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

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


text:
    Kouri A. FINGER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 83544.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.
    S. Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Kouri A. Finger, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Jimmy CHU KO and Josephine Chu Ko, Appellants, v. Randolph TSIEN and Xu L. Tsien, Respondents.
    No. ED 84018.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 16, 2004.
    Craig A. Smith, Polsinelli, Shalton, Welte Suelthaus PC, St. Louis, MO, for Appellant.

      Gary A. Growe, Blumenfeld, Kaplan, & Sandweiss, P.C., St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellants, Jimmy Chu Ko and Josephine Chu Ko (“the Chu Kos”), appeal from the judgment of the Circuit Court of St. Louis County in favor of respondents, Randolph Tsien and Xu Li Tsien (“the Tsiens”). We affirm.

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


author: MARY K. HOFF, Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Carl JOHNSON, Defendant/Appellant.
    No. ED 83773.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2004.

      Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.
   OPINION

MARY K. HOFF, Judge.

Carl Johnson (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of: 1) one count of second-degree burglary, in violation of Section 569.170; 2) one count of misdemeanor stealing, in violation of Section 570.030; and 3) one count of making a false statement, in violation of Section 575.060. We affirm the judgment as to Defendant’s fust and second points on appeal, pursuant to Rule 30.25(b). We reverse the trial court’s judgment as to Defendant’s third point on appeal regarding his sentence and remand for further proceedings consistent with this opinion.

Facts

Defendant does not challenge the sufficiency of the evidence to support his convictions; thus, a brief summary of the procedural facts of the case will suffice for our review. Defendant was charged by indictment with the offenses listed above. In the indictment, the State also charged Defendant as a prior offender because he had pled guilty to felony stealing in 1998 in Cause No. 971-3921. Before trial, the State filed a substitute information in lieu of indictment, which apparently charged Defendant as a prior and persistent offender based on his convictions in Cause No. 971-3921 and at least one other felony offense.

At trial on October 8, 2003, at the close of all evidence and prior to closing arguments, the trial court held a hearing outside the presence of the jury to determine whether Defendant was a prior and persistent offender as charged. The State offered the testimony of the deputy clerk for the 22nd Judicial Circuit, Division 18 (Clerk). Clerk testified that Defendant had pleaded guilty in 1998 to a charge of felony stealing in Cause No. 971-3921 and had been represented by counsel in that case. Clerk indicated she had the court file for Cause No. 971-3921 in her possession during her testimony. Clerk also testified that Defendant had pleaded guilty in 1992 to another felony in Cause No. 911-3012. Clerk stated that, although she did not have the court file or a hard copy of the circuit court’s minutes for Cause No. 911-3012, she was able to access the minutes of the case through the circuit court’s computer system. Once she accessed the minutes, Clerk testified that Defendant had pleaded guilty to a charge of second-degree burglary in Cause No. 911-3012 and had been represented by counsel in that case.

Later, on cross-examination, Defendant questioned Clerk about the location of the actual case file. Clerk responded that it was in storage. Clerk further testified that she had not compared the actual case file to the computerized minutes for accuracy. Defendant then objected to the State’s use of the computerized minutes of Cause No. 911-3012 on the grounds that the best evidence of Defendant’s alleged conviction in that case would have been the case file itself. The trial court: 1) overruled the objection; 2) took judicial notice of the record and files in both Cause Nos. 971-3921 and 911-3012 as evidence of Defendant’s prior felony convictions; 3) noted that the minutes of the 22nd Judicial Circuit are kept by computer and constitute the best evidence of cases adjudicated in the circuit; and 4) found Defendant to be a prior and persistent offender. The jury subsequently found Defendant guilty of all offenses as charged, and the trial court set a date for sentencing. Defendant did not present an oral or written motion for new trial and did not request any additional time beyond the fifteen-day time limit for filing such a motion.

On October 27, 2003, more than fifteen days after the return of the jury’s verdicts, Defendant filed his motion for new trial. Later, at the sentence hearing, the trial court noted for the record, and Defendant conceded, that Defendant’s motion had not been filed in a timely manner. The trial court also noted that, nonetheless, it had reviewed the motion for plain error but had found no error, plain or otherwise. The trial court entered its judgment and sentenced Defendant as a prior and persistent offender to terms of sixteen years on Count I, one year on Count II, and 30 days on Count III, all to be served concurrently.

Discussion

Defendant presents three points on appeal. We affirm the trial court’s judgment as to Defendant’s first and second points pursuant to Rule 30.25(b), and we have addressed those issues in a separate memorandum for the parties’ information only. In his third point, Defendant argues the trial court: 1) erred in finding Defendant to be a prior and persistent offender because the State failed to present proper evidence of Defendant’s prior conviction in Cause No. 911 — 3012; and 2) abused its discretion by sentencing Defendant as a persistent offender to a term beyond the maximum enhanced sentence available under Section 558.016 at the time of the sentencing hearing.

Before addressing the merits of Defendant’s point on appeal, we note that his claim is not preserved for our review. Although during the hearing on Defendant’s prior and persistent offender status, Defendant objected to the State’s introduction of the computerized minutes in Cause No. 911-3012, Defendant failed to preserve the objection because he filed his motion for new trial more than fifteen days after the return of the jury’s verdicts. Rule 29.11(b). Defendant also did not request the trial court to grant him ten additional days for filing the motion, either at the return of the verdicts or during the fifteen days. Id. In fact, at sentencing, the trial court noted for the record that Defendant’s motion for new trial had been filed out of time, and Defendant conceded the motion was untimely. Thus, his objection to the introduction of the computerized minutes, as proof of his status as a prior and persistent offender, was not preserved.

Although plain errors affecting a defendant’s substantial rights may be considered when the court finds that a manifest injustice or a miscarriage of justice has resulted therefrom, such consideration is in the appellate court’s discretion. Rule 30.20. The plain error rule is to be used sparingly and does not justify a review of every point that has not been preserved properly. State v. Lubbers, 81 S.W.3d 156, 160 (Mo.App. E.D.2002); State v. Boyd, 954 S.W.2d 602, 606 (Mo.App. W.D.1997). Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case. State v. Louis, 103 S.W.3d 861, 864 (Mo.App. E.D.2003); Boyd, 954 S.W.2d at 606. A defendant’s claim of plain error must establish on its face substantial grounds for us to believe a manifest injustice or a miscarriage of justice occurred; otherwise, we will decline to review for plain error. Boyd, 954 S.W.2d at 606. Plain error review is appropriate where it appears a defendant has been improperly sentenced as a prior or persistent offender. State v. Stephens, 88 S.W.3d 876, 885 (Mo.App. W.D.2002).

In this case, the record clearly indicates Defendant was sentenced improperly, resulting in a manifest injustice and a miscarriage of justice. Therefore, we exercise our discretion and review for plain error. We address each of Defendant’s contentions in turn.

First, Defendant specifically argues that the trial court should not have taken judicial notice of his prior conviction in Cause No. 911-3012 as evidence of his status as a persistent offender because the State presented only the computerized minutes of the case and not the actual court file. Defendant further argues the State could have retrieved the actual court file from storage and the best evidence of the conviction in Cause No. 911-3012 would have been a certified copy of the judgment or the court file itself.

The State counter argues that it presented sufficient evidence of Defendant’s prior conviction in Cause No. 911-3012 because Clerk’s testimony established that Defendant’s conviction was contained in the circuit court’s computerized minutes of the case. The State further argues that the trial court was entitled to take judicial notice of the file in Cause No. 911-3012 to support its finding that Defendant was a prior and persistent offender, regardless of whether the file was in printed or computerized form, because Defendant’s prior conviction occurred in the trial court’s own circuit.

Where the trial court finds that a defendant is a prior and persistent offender, the trial court may sentence him to an extended term of imprisonment. Section 558.016.1. “A prior offender is one who has pleaded guilty to or has been found guilty of one felony.” Section 558.016.2. “A persistent offender is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” Section 558.016.3.

The trial court shall find a defendant to be a prior and persistent offender if: 1) the State pleads in the indictment or information, original or amended, or in the information in lieu of indictment, all essential facts warranting a finding that the defendant is a prior and persistent offender; 2) the State introduces sufficient evidence to warrant a finding that the defendant is a prior and persistent offender; and 3) the trial court finds beyond a reasonable doubt that the defendant is a prior and persistent offender. Section 558.021.1; Stephens, 88 S.W.3d at 886.

The trial court cannot sentence a defendant as a prior and persistent offender without sufficient evidence of his prior convictions. Dudley v. State, 903 S.W.2d 263, 267 (Mo.App. E.D.1995); Stephens, 88 S.W.3d at 886. Missouri courts have held that certified and properly authenticated copies of records of a defendant’s prior convictions constitute admissible and sufficient evidence for purposes of sentence enhancement. Stephens, 88 S.W.3d at 886; State v. Russ, 945 S.W.2d 633, 636 (Mo.App. E.D.1997); Dudley, 903 S.W.2d at 267; State v. Cochrane, 899 S.W.2d 162, 163 (Mo.App. S.D.1995); State v. Cooksey, 787 S.W.2d 324, 327 (Mo.App. E.D.1990). Courts also may take judicial notice of their own records of a defendant’s prior convictions in other previous proceedings to establish the essential facts warranting a finding that the defendant is a persistent offender, but only if the court’s records of those convictions are physically before the court. State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474-75 (Mo.App. W.D.1998); State v. Hurst, 845 S.W.2d 669, 670 (Mo.App. E.D.1993); State v. Weber, 814 S.W.2d 298, 303 (Mo.App. E.D.1991); State v. Cullen, 646 S.W.2d 850, 855 (Mo.App. W.D.1982).

In Weber, this Court reasoned that the records of a defendant’s prior convictions must be physically present in order for the trial court to take judicial notice of the records because a fact judicially noticed must have independent reliability and trustworthiness. Weber, 814 S.W.2d at 303. There, we further reasoned that requiring independent proof of a defendant’s prior convictions through an actual court file “... insures the existence and [genuineness] of that court file as well as providing the opposing party an opportunity to attack the propriety of taking such judicial notice....” Id.

In Hurst, this Court also recognized that the existence of a court record containing proof of a defendant’s prior convictions is essential to the State’s burden of proving whether the defendant is a prior or persistent offender. Hurst, 845 S.W.2d at 670. There, we stated that, under such circumstances, the record itself must be introduced into evidence, unless the defendant consents to the admission of its contents. We require the introduction of the other record into evidence to ensure an intelligible record for appellate review because we cannot take a corresponding judicial notice of facts judicially noticed by the trial court. Hurst, 845 S.W.2d at 670.

In this case, the State offered Clerk’s testimony and the actual court file containing the record of Defendant’s prior conviction in Cause No. 971-3921. Clearly, the trial court properly took judicial notice of Defendant’s prior conviction in that case because the court file was physically before the court and capable of being examined for reliability, trustworthiness, and genuineness. Weber, 814 S.W.2d at 303; Hurst, 845 S.W.2d at 670. On the contrary, although Clerk testified from the computerized minutes of Cause No. 911-3012 that Defendant had been convicted of felony burglary in that case, neither a certified copy of the judgment nor the court file was physically before the trial court. The State presented no authenticated document from which the trial court could properly take judicial notice of Defendant’s alleged conviction in that case. Furthermore, the record on appeal does not contain a copy of the substitute information in lieu of indictment. Consequently, we are unable to determine whether the State actually charged Defendant with committing a prior felony offense in Cause No. 911-3012. In any event, we find the State failed to present sufficient evidence of Defendant’s alleged conviction in Cause No. 911-3012; thus, the trial court plainly erred in finding Defendant to be a prior and persistent offender as defined by Section 558.016.3.

Second, Defendant specifically argues that even if the State had presented proper evidence of his alleged prior convictions, the trial court abused its discretion by sentencing Defendant beyond the maximum enhanced sentence available. In its brief, the State, citing Section 1.160, concedes this argument and states that the trial court erred in imposing a sixteen-year sentence on the burglary conviction because it exceeded the maximum enhanced term prescribed by Section 558.016.7(3) RSMo Cum.Supp.2003, the statute in effect at the time of Defendant’s sentencing. We disagree.

The pertinent language of Section 1.160 provides:

No offense committed and no ... penalty ... incurred previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, ... the ... punishment of all such offenses ... shall be had, in all respects, as if the provision had not been repealed or amended, except ... [t]hat if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.

Consequently, a defendant will be sentenced according to the law in effect at the time the offense was committed unless a lesser punishment is required by a change in the law creating the offense itself. State ex rel. Nixon v. Kelly, 58 S.W.3d 513 (Mo. banc 2001); State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000); State v. Beers, 926 S.W.2d 215, 217 (Mo.App. E.D.1996) (emphasis ours). Section 569.170 creates the offense of second-degree burglary and defines the offense as a Class C felony. Section 569.170. Normally, the maximum term of punishment for a Class C felony is not to exceed seven years. Section 558.011.1(3). However, the authorized enhanced term of punishment for a prior and persistent offender who has been convicted of a Class C felony is any sentence authorized for a Class B felony. Section 558.016.7(3) RSMo Cum.Supp. 2003. The range of punishment for a Class B felony is a term of not less than five years and not to exceed fifteen years. Section 558.011.1(2) RSMo Cum.Supp. 2003. Prior to the 2003 amendment, however, Section 558.016 prescribed the maximum term of imprisonment for a prior and persistent offender who has been convicted of a class C felony as a term not to exceed twenty years. Section 558.016.7(3).

In this case, Section 1.160 does not control because Section 569.170, the statutory section creating the offense of second-degree burglary, was not amended. The amendment in question applied only to Section 558.016, the statutory section authorizing and prescribing enhanced terms of imprisonment for prior and persistent offenders. Therefore, it is irrelevant that the amended version of Section 558.016 took effect after Defendant committed the offense and before he was sentenced. See Kelly, 58 S.W.3d at 518. Although the State initially conceded that, even if Defendant was properly deemed to be a prior and persistent offender, Defendant’s enhanced punishment could not exceed fifteen years, we find the amended version of Section 558.016 does not apply to this case because the amendment does not reduce the penalty for second-degree burglary by any change to the underlying statute creating the offense itself.

We conclude that, under the circumstances, Defendant was sentenced improperly as a persistent offender because the State failed to present sufficient evidence proving beyond a reasonable doubt that Defendant committed two or more separate prior felony offenses. Thus, we reverse the trial court’s judgment only with respect to Defendant’s sentence, and we remand this case to the trial court. On remand, the State may present proper evidence of Defendant’s prior criminal convictions in order to meet its burden of proof as to Defendant’s persistent offender status. Russ, 945 S.W.2d at 636; Dudley, 903 S.W.2d at 267. Should the State meet its burden of proof, the trial court may re-sentence Defendant within the range of years prescribed by Section 558.016.7(3) RSMo 2000, which was in effect at the time the offenses occurred. We have furnished the parties with a memorandum regarding our resolution of Defendant’s Point One and Point Two for their information only and setting forth the reasons for our decision pursuant to 30.25(b).

LAWRENCE E. MOONEY, Presiding Judge, and LAWRENCE G. CRAHAN, concur.

      . All statutory citations are to RSMo 2000, unless otherwise indicated.

      . We note that the record on appeal does not contain a copy of the substitute information, and, as a result, we are left with only assertions found in the briefs on appeal.

      . Defendant does not challenge the propriety of the State’s evidence of his prior conviction in Cause No. 971-3921.

      . We note that the trial court's Sentence and Judgment attributes a third prior felony to Defendant in Cause No. 901-2801, distribution of a controlled substance near a school and possession of a controlled substance. The transcript, however, is void of any reference by the State to that case. Therefore, we also find the State failed to present proper evidence regarding Cause No. 901-2801 for purposes of establishing Defendant was prior and persistent offender.


text:
    STATE of Missouri, Respondent, v. Paula HOWES, Appellant.
    No. ED 84127.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 16, 2004.

      Jennifer A. Brown, Hannibal, MO, for appellant.
    Monty C. Platz, Hannibal, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   PER CURIAM.

Appellant, Paula Howes (“Defendant”) appeals from the judgment of the Circuit Court of Marion County convicting her of possession of a controlled substance, section 195.202 RSMo 2000, and unlawful use of drug paraphernalia, section 195.233 RSMo 2000. Defendant was sentenced to concurrent terms of ninety days in county jail on each count, but received a suspended execution of sentence and was placed on two years of supervised probation. We reverse.

On June 15, 2003 at about 8:00 p.m., Erik Gottman (“Sergeant Gottman”), a sergeant with the Missouri State Water Patrol, saw a boat entering the Hannibal boat harbor with two of the occupants sitting on top of the seatback. Sergeant Gottman approached the boat, advised the three occupants of the violation of sitting on top of the seatback, did a safety inspection of the boat, and discussed the violation with Daniel Waters (“Waters”), the driver of the boat. Defendant, a 41-year old female, interrupted and stated she should receive the ticket or warning because she was the owner of the boat. While speaking with Sergeant Gottman, Defendant discussed losing her son and started crying. There were open containers of alcohol on the boat, and Defendant and Waters had each been drinking.

Sergeant Gottman then asked Defendant if she had anything illegal in her purse, which was lying on the front seat of the boat, after she confirmed that it was her purse. Defendant grabbed the purse, and began to walk away from him. Sergeant Gottman asked Defendant to come back, and asked her again if she had anything illegal in her purse. She responded in the negative. Sergeant Gottman asked if he could look into the purse. She initially consented to a search and opened the purse, but then turned around with the purse in her hand and began to walk away again. Sergeant Gottman did not get a good look at what was inside the purse when she unzipped her purse. As she walked away, Sergeant Gottman seized the purse and searched through it. Inside the purse was an Altoid candy tin, and Sergeant Gottman asked her if there was candy in the tin. She did not answer, so he removed the tin and shook it. Sergeant Gottman opened the tin and inside found a marijuana pipe and loose plant material, which was later confirmed to be marijuana. At this point, Sergeant Gottman read Defendant her Miranda rights, continued to search the purse, and found another marijuana pipe and a baggie of marijuana in the purse.

Defendant was charged with possession of a controlled substance, section 195.202, and unlawful use of drug paraphernalia, section 195.233. A bench trial was conducted on December 17, 2003 at which Defendant’s motion to suppress evidence of the marijuana and drug paraphernalia was denied. Defendant was found guilty on both counts. Defendant was subsequently sentenced to concurrent terms of ninety days in county jail on each count, but received a suspended execution of sentence and was placed on two years of supervised probation.

Defendant has stated four points on appeal in her appellate brief, but these points can easily be consolidated into one point on appeal. Defendant argues that the trial court erred in denying her motion to suppress evidence. Discussion of whether the court erred in denying Defendant’s motion to suppress will be divided into three sub-points.

When reviewing a trial court’s ruling on a motion to suppress, we limit our review to determining whether there is substantial evidence to support the court’s decision. State v. Whitaker, 101 S.W.3d 332, 333 (Mo.App. E.D.2003). We give deference to the trial court’s factual findings and credibility determinations, but review questions of law de novo, including whether the Fourth Amendment has been violated. Id.

The Fourth Amendment to the United States Constitution protects an individual from unreasonable searches and seizures. State v. Adams, 51 S.W.3d 94, 98 (Mo.App. E.D.2001). Missouri’s constitutional protection is co-extensive with the protection provided by the United States Constitution. Id.

The State asserts that the encounter between Defendant and Sergeant Gottman was a voluntary encounter in which Defendant initiated the conversation and consented to a search of her purse.

In the absence of consent or exigent circumstances, law enforcement officers must obtain a warrant to conduct a search and seizure that would invade a constitutionally-protected privacy interest. State v. Smith, 134 S.W.3d 35, 37 (Mo.App. E.D.2003). A warrantless search in which proper consent, voluntarily given, is obtained is constitutionally valid. Id. A search pursuant to proper consent is valid even if the search is not otherwise supported by probable cause or a reasonable suspicion of criminal activity. State v. Hyland, 840 S.W.2d 219, 221 (Mo.banc 1992). When consent is withdrawn, an officer must stop the search unless the officer has a warrant or probable cause to continue the search. State v. Hayes, 51 S.W.3d 190, 194 (Mo.App. W.D.2001).

It is true that viewing the facts in the light most favorable to the State, the conversation between Defendant and Sergeant Gottman was initiated by Defendant. Defendant also initially consented to a search of her purse. However, as Defendant argues, her consent to a search of her purse was clearly withdrawn when she turned with her purse and walked away from Sergeant Gottman. Sergeant Gott-man finally obtained possession of the purse by grabbing the purse from Defendant as Defendant was walking away. Therefore, the consent exception to a war-rantless search and seizure is not applicable to this case.

Second, the State contends that the search of Defendant’s purse was constitutional because if Sergeant Gottman had not searched her purse for contraband, Defendant could have destroyed any potential evidence of criminal wrongdoing by throwing the evidence into the water.

Because boats are similar to automobiles in that both are inherently mobile, the exceptions to the warrant requirement applicable to automobiles apply to boats as well. State v. Sullivan, 935 S.W.2d 747, 755 (Mo.App. S.D.1996). Law enforcement personnel may conduct a war-rantless search of an automobile and seize contraband found if there is: l)probable cause to believe that the vehicle contains contraband and 2)exigent circumstances necessitate the search. State v. Middleton, 995 S.W.2d 443, 458 (Mo.banc 1999). Practically speaking, exigent circumstances exist every time an automobile is involved, because the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search. Id. Courts have commented that the need for the exigent circumstances doctrine is particularly compelling in narcotics cases in which contraband can be quickly destroyed while a search is progressing. State v. Vega, 875 S.W.2d 216, 219 (Mo.App. E.D.1994). In an automobile setting, probable cause to search exists “when the facts and circumstances would lead a reasonably prudent [person] to believe that the vehicle contains contraband.” State v. Milliorn, 794 S.W.2d 181, 183 (Mo.banc 1990), quoting United States v. Clark, 559 F.2d 420, 424 (5th Cir.1977). Essentially, probable cause requires a reasonable belief that it is more probable than not that the vehicle contains illegal property. Milliorn, 794 S.W.2d at 183.

The possibility that Defendant could destroy any contraband she may have had in her purse by throwing it into the water qualifies as an exigent circumstance. Therefore, the critical inquiry here is whether Sergeant Gottman had probable cause to believe Defendant’s purse contained contraband.

Sergeant Gottman admittedly had no suspicion of illegal drugs being present on the boat when he ordered the boat to stop as the result of a safety violation. The evidence Sergeant Gottman had in suspecting that Defendant possessed drugs or drug paraphernalia, viewed in the light most favorable to the State, was that Defendant was emotional, told him things about herself that he did not inquire about, and appeared to be nervous during discussion of her purse. Defendant’s subsequent withdrawal of consent after her initial consent to search of her purse cannot be used to create suspicion of criminal wrongdoing. See Hayes, 51 S.W.3d at 194. Sergeant Gottman discovered open beer containers on the boat before searching Defendant’s purse, but had not found any physical evidence of illegal drugs. Sergeant Gottman stated that he believed Defendant “was possibly under the influence of a controlled substance.” There is simply not enough evidence to conclude it was reasonable for Sergeant Gottman to believe that it was more probable than not that Defendant had illegal drugs in her purse. Because Sergeant Gottman did not have probable cause to search Defendant’s purse for illegal drugs, the search cannot be justified by the exigent circumstance that any possible evidence of criminal wrongdoing could have been destroyed by Defendant if a warrantless search was not conducted.

The final argument made by the State in support of upholding the motion to suppress is that Sergeant Gottman was justified in searching Defendant’s purse to protect his own safety.

Protective searches executed by law enforcement officers are limited only in the sense that the officer executing the search must possess a reasonable belief that the suspect is dangerous and the protective search must be directed only to locations which may contain a weapon and to which the suspect may have access. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The critical inquiry is whether a reasonably prudent person in similar circumstances would be warranted in the belief that his safety or that of others was in danger. Id. at 1050, 103 S.Ct. 3469.

The State claims that one of the reasons Sergeant Gottman took Defendant’s purse and searched it was to protect his own safety. Defendant never said anything threatening to Sergeant Gottman, and she never made any type of threatening gestures or movement in his direction. On the contrary, she was walking away from Sergeant Gottman when he grabbed her purse. He then proceeded to search her purse, and did not find any dangerous weapons, but instead removed a small Al-toid candy tin from her purse. He shook the tin and decided “that there was not candy in the tin.” There is no evidence in the record to support a finding that Sergeant Gottman had a reasonable belief that there may have been a weapon in the small tin that posed a risk of harm. Nor does Sergeant Gottman claim that the marijuana and marijuana pipe, found in the tin after he opened it, sounded like a dangerous weapon when he shook the tin. The search of the small Altoid tin and subsequent search of the purse cannot be justified as a valid protective search.

Having reviewed the record, it is clear that without the evidence seized in Defendant’s purse, the State does not have a submissible case against Defendant. A remand of this case to the trial court for further proceedings would be futile. Therefore, the judgment of the trial court is reversed and Defendant’s conviction is ordered overturned.

      . Defendant possessed less than thirty-five grams of marijuana.

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


author: PATRICIA L. COHEN, Judge.

text:
    Roger Marion ZIEGLER, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 84299.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 16, 2004.

      Walter S. Drusch, Jr., Cape Girardeau, MO, for appellant.
    Kristi R. Flint, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Roger Marion Ziegler (“Driver”) appeals from the judgment of the Circuit Court of Cape Girardeau County affirming the denial of his driving privileges for ten years. We affirm.

Background

Director of Revenue (“Director”) issued a notice to Driver denying his driving privileges for ten years for having more than two driving while intoxicated convictions. The Director based the denial on Section 302.060, R.S.Mo 2000, which provides, in pertinent part, that driving privileges are denied for ten years “[t]o any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated.” Section 302.060.9, R.S.Mo.

Driver filed a petition for review in the Circuit Court of Cape Girardeau County, challenging the Director’s decision under Section 302.311, R.S.Mo, and Chapter 536, R.S.Mo. Counsel for the Director filed an answer and a certified copy of the Director’s administrative records. These records included Driver’s Missouri Driver Record and court records relating to Driver’s driving while intoxicated convictions, dated June 17, 2003, April 21,1997, February 17,1993, and June 26,1984.

At the hearing on Driver’s petition for review, the Director submitted the case solely on the above certified records. Driver did not present any evidence and objected to the Director’s records, requesting additional time to brief his concerns. The trial court allowed Driver’s request for additional time, but Driver failed to file any objections.

On February 13, 2004, the circuit court entered judgment affirming the denial of Driver’s driving privileges for ten years. This appeal followed.

Standard of Review

This court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or the court erroneously declared the law. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). We accept as true all evidence and inferences in favor of the prevailing party and disregard contrary evidence. Kimber v. Dir. of Revenue, 817 S.W.2d 627, 630 (Mo.App. W.D.1991).

Discussion

In his sole point on appeal, Driver contends that the trial court erred in affirming the ten-year denial of his driving privileges because the Director failed to show the facts needed to support the denial under Section 302.060.9, R.S.Mo. More specifically, Driver claims that the records the Director relied on were never admitted into evidence and, even if considered, failed to show that Driver had more than two convictions for driving while intoxicated, pursuant to Section 302.060.9. The Director responds that she offered Driver’s Missouri Driver Record, including his DWI convictions, into evidence, but the court did not specifically rule on admissibility. Moreover, the Director asserts that even if the records were not received into evidence, the denial of Driver’s driving privileges should be affirmed because Driver failed to make the initial showing that he was qualified for a driver’s license. Because we find Driver’s claims of error are without merit, we affirm the trial court’s judgment.

We first dispose of Driver’s assertion that the Director “failed to move for or have her records admitted into evidence ....”. The hearing transcript reveals that the Director offered the records into evidence. At the hearing, the trial court asked counsel for the Director: “Are you offering [the records] at this time?” And, counsel answered: “Yes, I am.” Driver then made certain objections and asked that he be allowed additional time to file a brief. Driver, however, did not file written objections, and the trial court did not make a final ruling on admissibility. Apparently, Driver argues that the lack of a specific ruling on the admissibility of the records precludes them from being admitted. However, it is the objecting party’s responsibility to insure that a trial judge has heard and ruled on an objection. Estate of Bonner, 954 S.W.2d 356, 363 (Mo.App. W.D.1997). If this is not done, nothing is preserved for review. Id. at 363. Likewise, should the objecting party fail to insist on a ruling, the objection is deemed overruled and the evidence is in the record for consideration. Id. (citing Sykes v. Bi-State Development Agency, 716 S.W.2d 856, 858 (Mo.App. E.D.1986)).

Here, because the trial court entered its judgment without specifically ruling on Driver’s objections to the Director’s records, and Driver has not shown that he insisted on such a ruling, Driver’s objections are deemed overruled and the records admitted. See Pugh, 954 S.W.2d at 363. Any objection Driver may have had to the admission of such evidence is not preserved for appeal. Id.

This case is readily distinguishable from Wampler v. Dir. of Revenue, 48 S.W.3d 32, 35 (Mo. banc 2001), relied on by Driver. There, the Director attempted to make the case based on records that were filed with the Director’s answer, but were never offered into evidence. In this case, by contrast, the Director both filed the records she was relying on and offered them at the hearing.

We next address Driver’s contention that the records, even if considered, fail to support the denial of his driving privileges, and the Director’s response that Driver failed to meet his initial burden of showing he was qualified for a driver’s license. We begin by noting that in Hobbs v. Dir. of Revenue, 109 S.W.3d 220, 222 (Mo.App. E.D.2003), we found that the driver’s driving record, admitted into evidence by the Director, demonstrated that the driver had been duly licensed in Missouri and discharged the driver’s burden. Thus, as in Hobbs, the admission of Driver’s driving record discharged Driver’s burden, and the Director was required to make a prima facie showing that Driver was not entitled to a license under Section 302.060.9. See Id. at 222. We disagree with Driver that the Director failed to meet this burden.

As set forth above, Section 302.060.9, R.S.Mo, provides that driving privileges are properly denied for ten years “[t]o any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated.” Here, Driver’s Missouri Driver Record shows that he has four DWI convictions. At the hearing, the Director indicated that she was relying on the 2003, 1997, and 1993 convictions in support of the denial. Driver does not contest that his June 17, 2003, and April 21, 1997, convictions were for driving while intoxicated in violation of state law. He asserts, however, that the Director failed to prove that his February 17, 1993, DWI conviction was under state law.

Driver argues that, according to his Missouri Driver Record, the February 1993 conviction was for violating municipal law because it lists the 1993 conviction as occurring in “Cape Gir.,” rather than in “Circuit Associate Division III-Jackson,” where his 2003 and 1997 convictions occurred. While a municipal conviction can support the denial of a license under Section 302.060.9, R.S.Mo, Driver asserts that the Director failed to meet the statutory requirements for using a municipal conviction and, thus, such a conviction would not support the denial of his license in this case.

Even if Driver’s Missouri Driver Record does not clearly show whether his conviction was under state or municipal law, a review of the Driver’s court records, which were also before the trial judge, resolves the question. While the February 17, 1993, conviction is only partly legible, it is clear on its face that a violation of Section 577.010, R.S.Mo, and not a municipal ordinance, was the basis of the conviction. See Stellwagon v. Dir. of Revenue, 91 S.W.3d 113, 116 (Mo. banc 2002) (affirming denial of license based on administrative record that was illegible in part where pertinent information could be deciphered). Driver presented no evidence at the hearing to dispute the validity of his court records. The trial court did not err in affirming the denial of Driver’s license.

Point Denied.

Conclusion

For the above reasons, the trial court’s judgment is affirmed.

GEORGE W. DRAPER III, C.J., and CLIFFORD H. AHRENS, J., concur.

      . All further statutory references are to R.S.Mo 2000 unless otherwise noted.

      . At the hearing, the Director indicated that the 1984 conviction was a municipal conviction and was not used in the imposition of the ten-year denial of Driver’s driving privileges.

      . Section 577.010.1, R.S.Mo. provides that: "A person commits the crime of 'driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.”