author: GEORGE W. DRAPER III, C.J.

text:
    STATE of Missouri ex rel. Victoria FERRARA, Relator, v. The Honorable Mark NEILL, Circuit Court of the City of St. Louis, Respondent.
    No. ED 85845.
    Missouri Court of Appeals, Eastern District, Writ Division I.
    June 28, 2005.

      Victoria Ferrara, Santa Fe, NM, for Relator.
    Thomas A. Spoon, Crestwood, MO, for Respondent.
   GEORGE W. DRAPER III, C.J.

Relator, Victoria Ferrara (Mother), contends that Respondent should be ordered to dismiss a motion to modify a New Mexico child custody decree filed by her former husband William E. Taylor (Father). We issued a preliminary order in prohibition. Father has filed an answer to Mother’s petition, along with suggestions in opposition. We dispense with further briefing as permitted by Rule 84.24(e). The preliminary order is made absolute.

Mother and Father were married on August 10, 1985 in St. Louis, Missouri. Their only child, Jordan (Child), was born on August 2,1988. Sometime in August of 1994, Mother, Father, and Child moved from St. Louis to Santa Fe, New Mexico. On September 2, 1999, a New Mexico district court entered a final decree of dissolution of marriage in accordance with Mother and Father’s marital settlement agreement. Under the agreement, Mother and Father shared joint legal custody of Child. Father had primary physical custody of Child, but the parties agreed to “pursue the goal of normalization of a joint legal and physical custody arrangement.” In August 2002, Father took Child and moved to St. Louis. Father and Child have continued to reside in St. Louis since that time, but Mother has continued to live in Santa Fe, New Mexico.

In February 2003, Father registered the New Mexico decree as a foreign judgment in the City of St. Louis. On September 9, 2004, Father filed in the City of St. Louis a motion to modify the child custody and support provisions of the New Mexico decree. Mother entered a special appearance and filed a motion to dismiss, asserting that the Missouri court lacked subject matter jurisdiction to amend the New Mexico decree. The circuit court summarily denied Mother’s motion, and granted her 45 days to file responsive pleadings. Mother filed a petition for a writ of prohibition in this Court, alleging that Respondent lacks subject matter jurisdiction to modify the New Mexico decree. On March 16, 2005, we issued a preliminary order in prohibition.

A writ of prohibition is an extraordinary remedy that should lie “only in cases of extreme necessity.” State ex rel. Lester E. Cox Med. Ctr. v. Wieland, 985 S.W.2d 924, 926 (Mo.App. S.D.1999). The primary function of prohibition is to limit judicial activities to those within the bounds of authority, “preventing actions in want or in excess of the court’s jurisdiction.” State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929, 930 (Mo.App. S.D.1992). Prohibition will lie where there is a usurpation of judicial power because the trial court lacks either personal or subject matter jurisdiction. State ex rel. S.M.H. v. Goldman, 140 S.W.3d 280, 283 (Mo.App. E.D.2004).

The issue before us is in this interstate child custody dispute is whether the Uniform Child Custody Jurisdiction Act (UCCJA), sections 452.440 to 452.550, RSMo 2000, as well as the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. sec. 1738A (1994 & Supp.2000), allow Missouri to modify a New Mexico child custody decree. In resolving this issue, this Court must examine the interplay between the UCCJA and the PKPA, as well as Missouri law and New Mexico law interpreting these statutory provisions.

Under the UCCJA, Missouri may modify another state’s custody decree only if it has jurisdiction and the original decree state no longer has jurisdiction “under jurisdictional prerequisites substantially in accordance with sections 452.440 to 452.550” or has declined jurisdiction. Section 452.505, RSMo 2000; Adams v. Adams, 871 S.W.2d 105, 107 (Mo.App. E.D.1994). However, the PKPA provides that once a state exercises child custody jurisdiction consistently with its provisions, that state retains jurisdiction to modify child custody so long as one parent or the child continues to reside in that state and such state continues to have “jurisdiction under the law of such State.” 28 U.S.C. sec. 1738A(d) & (c)(1). It further provides that a court may modify a determination of child custody made by another State only if: “(1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” 28 U.S.C. sec. 1738A(f).

In her suggestions in support, Mother argues that a Missouri court does not have jurisdiction to modify the New Mexico decree. She asserts that the PKPA provides continuing jurisdiction to the New Mexico court, so long as one of the parents remains in New Mexico. In his suggestions in opposition, Father relies primarily upon the UCCJA to support his argument that Missouri has “concurrent” jurisdiction with New Mexico, and that as Child’s home state, Missouri can modify the New Mexico decree. He contends the UCCJA is not in conflict with the PKPA in this regard. He also argues that the PKPA does not apply because there are no simultaneous proceedings pending in New Mexico.

It is undisputed that Mother resides in New Mexico and that New Mexico has not been asked to decline jurisdiction or to assess whether it has continuing jurisdiction under its law. Mother does not dispute the assumption that Missouri has jurisdiction under the UCCJA to modify the New Mexico decree. However, she asserts even if Missouri has jurisdiction under the UCCJA, the PKPA preempts the UCCJA and requires the Missouri court to defer to the jurisdiction of New Mexico.

We agree with Mother’s analysis. Arguably, the UCCJA would provide Missouri with jurisdiction to modify the New Mexico custody decree as Child’s home state. However, as explained in more detail below, Missouri would not have jurisdiction under the PKPA, because Missouri is required to examine New Mexico’s law, which provides New Mexico with exclusive, continuing jurisdiction. To the extent the PKPA and the UCCJA conflict, the Supremacy Clause of the United States Constitution mandates that the PKPA preempts the UCCJA. Glanzner v. State, Dept. of Social Services, 835 S.W.2d 386, 392 (Mo.App. E.D.1992). Therefore, in this instance, the PKPA preempts the UC-CJA and the UCCJA provisions of the Missouri law governing modification are not applicable.

The PKPA provides that once a state exercises jurisdiction consistently with its provisions, no other state may exercise concurrent jurisdiction over the custody dispute. 28 U.S.C. sec. 1738A(g). The authorities of every state shall enforce the custody decree and shall not modify it except as provided in subsection (f) of the PKPA. 28 U.S.C. sec. 1738A(a). Accordingly, the PKPA “ ‘anchor[s] exclusive modification jurisdiction in the original home state as long as the child or one of the contestants remain in that state.’ ” Russell v. Ruth, 115 S.W.3d 404, 407 (Mo.App. S.D.2003) (emphasis added), quoting David Carl Minneman, Annotation, Significant Connection Jurisdiction of Court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c) (2) (B), 5 A.L.R. 5th 550, 580-81 (1992). The PKPA thus preserves to the original decree state the sole prerogative to modify that determination, as long as any modification would also be valid under its own law and either the child or a contestant continues to live there. Accordingly, it explicitly limits when a state, which would otherwise have jurisdiction over a child custody dispute, must defer to the state that originally issued the custody order.

In Meade v. Meade, the Fourth Circuit Court of Appeals summarized the PKPA’s terms regarding modification of foreign custody decrees as follows:

The effect of §§ 1738A(d) and 1738A(f) is to limit custody jurisdiction to the first state to properly enter a custody order, so long as two sets of requirements are met. First, the PKPA defines a federal standard for continuing exclusive custody jurisdiction: the first state must have had proper initial custody jurisdiction when it entered its first order (according to the criteria in the Act) and it must remain ‘the residence of the child or any contestant’ when it later modifies the order. Second, the Act incorporates a state law inquiry: in order to retain exclusive responsibility for modifying its prior order the first state must still have custody jurisdiction as a matter of its own custody law.

Meade v. Meade, 812 F.2d 1473, 1477 (4th Cir.1987). It is undisputed that New Mexico initially exercised jurisdiction in this case in conformity with the PKPA. Therefore, the first requirement of the PKPA is satisfied in this case. Furthermore, it is undisputed that Mother is a “contestant” and that she continues to reside in New Mexico. Thus, the only remaining question is whether New Mexico continues to have custody jurisdiction as a matter of its own law.

New Mexico has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has different jurisdictional provisions than Missouri’s UCCJA. New Mexico’s law provides that it has exclusive, continuing jurisdiction over its child custody determinations until:

(1) a court of this state determines that the child, or the child and one parent, or the child and a person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this state.

N.M.S.A.1978, Section 40-10A-202. The comment to the UCCJEA indicates that continuing jurisdiction of the original decree state is exclusive and continues until one of the two events occurs. Under subsection (1), the original decree state’s jurisdiction continues so long as the significant connections jurisdiction provision is met. However, this determination must be made by the original decree state. The use of the phrase “ ‘a court of this State’ ... makes it clear that the original decree State is the sole determinant of whether jurisdiction continues. A party seeking to modify a custody determination must obtain an order from the original decree State stating that it no longer has jurisdiction.” UCCJEA Sec. 202, 9A U.L.A. 674 (1999).

Mother continues to reside in New Mexico. Therefore, under New Mexico law, the New Mexico court has continuing jurisdiction over its child custody determinations until a New Mexico court determines “significant connections” do not exist. A New Mexico court has not been asked to make a determination under section 40-10A-202 or to decline jurisdiction. Therefore, under its law, it still has exclusive, continuing jurisdiction. Because New Mexico has exclusive, continuing jurisdiction over its original custody decree, a Missouri court lacks authority to modify the New Mexico custody decree and must defer jurisdiction to the New Mexico court under the PKPA.

The preliminary order is made absolute and Respondent is directed to take no further action except to dismiss the motion to modify the New Mexico child custody decree.

ROBERT G. DOWD, JR. and PATRICIA COHEN, JJ„ concur.

      . Father had previously sought to modify the child support order, but the trial court dismissed Father’s petition after concluding it had no jurisdiction under section 454.973, RSMo 2000. Father also included a request to modify child support in this petition, but later dismissed this request.

      . Father relies upon Glanzner, 835 S.W.2d at 389, to support his contention that the PKPA applies only to simultaneous proceedings. In that case, this Court did apply the PKPA where Missouri and California had each determined it had jurisdiction in simultaneous proceedings. However, the Court noted that the PKPA also applies in “enforcement and modification of foreign decrees.” Id.

      . Father erroneously asserts that New Mexico has enacted the UCCJA. New Mexico repealed the UCCJA and enacted the UCCJEA in 2001.

      . We are mindful of the Southern District’s decisions in Russell, 115 S.W.3d at 404, and State ex rel. Lopp v. Munton, 67 S.W.3d 666 (Mo.App. S.D.2002). In Lopp, the Southern District held that the trial court could not exercise jurisdiction over modification of a Kansas child custody decree without making specific findings about the status of the Kansas court's continuing jurisdiction under the UCCJA, particularly section 452.450, RSMo. Id. at 671-72. However, the Southern District did not address whether the UCCJA would be in conflict with the PKPA and whether the PKPA would even be applicable. In addition, the court had insufficient information to determine whether any proceedings were pending in Kansas or if Kansas had declined jurisdiction. Id. In Russell, the Southern District, in addressing another Kansas decree, did note that the PKPA governed the modification of foreign decrees, but that the relevant facts had not been presented to determine if the PKPA preempted Missouri state law. Id. at 407.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry R. VANDERMADEN, Movant, v. STATE of Missouri, Respondent.
    No. ED 84895.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 28, 2005.
    Maleaner Ryna Harvey, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss; Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K HOFF, J.
   ORDER

PER CURIAM.

Harry R. Vandermaden (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief (motion) without an evi-dentiary healing. Pursuant to a plea agreement with the State, Movant pled guilty to one count of deviate sexual assault, in violation of Section 566.070. The trial court sentenced Movant to seven years’ imprisonment and retained jurisdiction for 120 days, pursuant to Section 559.115. After Movant served 120 days of his sentence, the court denied probation. Movant thereafter timely filed his pro se and amended motions alleging ineffective assistance of his plea counsel, pursuant to Rule 24.035. This appeal follows.

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 extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

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


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Elizes J. CHAVEZ, Appellant.
    No. ED 85143.
    Missouri Court of Appeals, Eastern District, Division One.
    June 28, 2005.

      Jennifer A. Brown, Public Defender, Hannibal, MO, for Appellant.

      Thomas P. Redington, Marion County Prosecutor, Hannibal, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Elizes J. Chavez (“Defendant”), appeals from the judgment of the Circuit Court of Marion County following a bench trial where he was convicted of violating an order of protection, sections 455.050 and 455.085 RSMo 2000, and of harassment, section 565.090. Defendant was sentenced to concurrent terms of six months in jail on each conviction. These sentences were also to run concurrently with a sentence Defendant was serving for a separate conviction of assault of a law enforcement officer. We affirm.

Defendant and Donna Owsley (“Ows-ley”) were friends for nine years and had resided together. Defendant and Owsley had an altercation, and on April 26, 2004, the Circuit Court of Marion County granted Owsley an ex parte order of protection against Defendant. On the same day, this order of protection was served on Defendant. This order of protection provided that Defendant was not to: “[ajbuse, threaten to abuse, stalk, molest or disturb the peace of’ Owsley, “[ejnter or stay upon” Owsley’s residence, or “[cjommuni-cate with [Owsley] in any manner or through any medium.”

At a hearing on April 30, 2004, which Defendant and Owsley both attended, the Circuit Court of Marion County entered a full order of protection against Defendant that replaced, superseded, and terminated the April 26, 2004 ex parte order of protection. This order of protection, effective until November 14, 2004, provided that Defendant was not to: commit “further acts of abuse or threats of abuse,” have “any contact with” Owsley, “abuse, threaten to abuse, molest, stalk or disturb the peace of’ Owsley, “use, attempt to use, or threaten to use physical force against” Owsley, “communicate with [Owsley] in any manner or through any medium,” or “enter or stay upon” Owsley’s residence.

On May 4, 2004, Officer Matthew Weal-er (“Officer”) of the Hannibal Police Department reported to Owsley’s home where he made a police report. Owsley informed Officer that she had an ex parte order of protection against Defendant and that Defendant had left about twenty phone messages on her answering machine.

Owsley played the phone messages for Officer and informed him that Defendant was staying at the Super 8 Hotel in Hannibal. Officer testified that the voice on the answering machine sounded the same as Defendant’s voice, which he later came to know from arresting and questioning Defendant.

After Officer listened to the messages, he informed Owsley he would be going to the Super 8 Hotel to place Defendant under arrest for violating the ex parte order of protection. After Officer contacted Defendant, he arrested and transported him to the Hannibal Police Department. Defendant told Officer that he had called Owsley several times and that the last time he called her was on May 3, 2004. Officer asked Defendant if he was aware of the ex parte order of protection against him. Defendant replied that he was aware of the order of protection, but that “it wasn’t worth the paper it was written on.”

Defendant was charged and convicted of violating an order of protection and of harassment. This appeal followed.

In his first point on appeal, Defendant asserts that the trial court erred in finding him guilty of violating an order of protection because the information was insufficient for this charge. Defendant argues that the trial court lacked jurisdiction because the information does not state a charge upon which a conviction can result nor does it charge a criminal act with which the evidence conforms.

This issue is raised for the first time on appeal. Thus, the scope of our review is severely limited. State v. Baker, 103 S.W.3d 711, 721-722 (Mo.banc.2003). Further, whether a trial court has jurisdiction does not depend upon the sufficiency of an information. Wright-El v. State, 890 S.W.2d 664, 669 (Mo.App. E.D.1994). When a defendant challenges the sufficiency of an information post-verdict, the information will be considered “insufficient” only if it is so defective that either “it does not by any reasonable construction charge the offense of which the defendant was convicted” resulting in defendant having no notice of the offense charged or “the substantial rights of the defendant to [adequately] prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.” State v. Baker, 103 S.W.3d at 722 quoting State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc.1992).

In either event, a defendant must demonstrate that the insufficient information caused him or her to suffer actual prejudice. State v. Baker, 103 S.W.3d at 722. An information that specifically cites the section of the criminal code alleged to be violated places a defendant on notice of the offense charged. See id.

A violation of an ex parte order of protection is a criminal offense pursuant to section 455.085.7 and a violation of a full order of protection is a criminal offense under section 455.085.8 when a defendant “violat[es] ... the terms and conditions, with regard to abuse, stalking,, child custody, communication initiated by the respondent or entrance upon the premises of petitioner’s dwelling unit ...”

In the instant case, the relevant portion of Count I of the information states:

The Prosecuting Attorney for Marion County, Missouri, charges that the defendant in violation of Sections 455.050 and 455.085, RSMo. committed the Class A misdemeanor of violation of order of protection, punishable upon conviction under Sections 455.085, 558.011 and 560.016 RSMo ... in that on or about May 4, 2004, in the Township of Mason, County of Marion, State of Missouri, the defendant having been personally served or having received a copy of an order of the Circuit Court of Marion County, Missouri, which prohibited him from abusing, threatening to abuse or molesting or stalking or disturbing the peace of [Owsley] or entering upon the premises of [Owsley], violated it by abusing, threatening to abuse or molesting or stalking or disturbing the peace of [Ows-ley] or entering upon the premises of her dwelling.

In this case, the information specifically cited the sections of the criminal code alleged to be violated, 455.050 and 455.085, placing Defendant on notice of the offense charged. See State v. Baker, 103 S.W.3d at 722. Sections 455.085.7 and .8 provide that communication initiated by a defendant in violation of an order of protection is a criminal offense. In addition, Defendant has not demonstrated that the information hindered the preparation of his defense.

We find Defendant has not demonstrated actual prejudice as a result of the language of the information. Therefore, the trial court did not err in finding him guilty of violating the order of protection. Point denied.

In his second point on appeal, Defendant argues there was insufficient evidence to support his conviction for violating an order of protection.

When reviewing whether evidence is sufficient to support a criminal conviction, we accept all evidence and inferences favorable to the verdict and we disregard all contrary evidence and inferences. State v. Skaggs, 74 S.W.3d 282, 284 (Mo.App. E.D.2002). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt. Id. The trier of fact determines the credibility of witnesses. State v. Kuhn, 115 S.W.3d 845, 849 (Mo.App. E.D.2003). “The trier of fact may believe all, some or none of the testimony of the witness when considered with all of the facts, circumstances and other testimony in the case.” Id.

Both the April 26, 2004 and April 30, 2004 orders of protection prohibited Defendant from, inter alia, “[cjommuni-catfing] with [Owsley] in any manner or through any medium.” Defendant told Officer he called Owsley several times, he last called her on May 3, 2004, and that although he was aware of the order of protection, “it wasn’t worth the paper it was written on.” Thus, we find there is substantial evidence in the record to support the trial court’s judgment convicting Defendant of violating an order of protection. Point denied.

In his third point on appeal, Defendant asserts there was insufficient evidence to support his harassment conviction because there was no evidence Defendant intended to frighten or disturb Owsley.

We review under the same standard as the second point on appeal.

Pursuant to section 565.090, a person commits the crime of harassment if he or she makes repeated telephone calls with the purpose of frightening or disturbing another. Two or more messages left on an answering machine are construed to be repeated telephone calls under section 565.090. State v. Placke, 733 S.W.2d 847, 850 (Mo.App. E.D.1987). A caller’s intent to frighten or disturb is a state of mind that is usually established by circumstantial evidence. State v. Rafaeli, 905 S.W.2d 516, 518 (Mo.App. E.D.1995).

In this case, Defendant does not contest that Defendant made repeated phone calls to Owsley. Therefore, the only issue is whether Defendant intended to frighten or disturb Owsley. In State v. Placke, the court found that a person was disturbed by a caller’s messages when after listening to the messages he called the police. State v. Placke, 733 S.W.2d at 849. Similarly, Owsley told Officer she had an order of protection in place against Defendant, played the twenty messages for Officer, and told Officer where Defendant was staying. In addition, there was a history of abuse between Defendant and Owsley. A reasonable trier of fact could infer from the above circumstantial evidence that Owsley was frightened or disturbed. Thus, we find the evidence in the record supports the trial court’s judgment convicting Defendant of harassment. Point denied.

Based on the foregoing, we affirm the judgment of the circuit court.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.

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


text:
    TRANS ADVANTAGE, INC., Respondent, v. ALABAMA WE-HAUL, INC., Appellant.
    No. ED 84959.
    Missouri Court of Appeals, Eastern District, Division One.
    June 28, 2005.
    J. Richard McEachern, St. Louis, MO, for appellant.
    John David Keen, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Alabama We-Haul, Inc. (“Alabama”) appeals from the trial court’s judgment in favor of Trans Advantage, Inc. (“Trans Advantage”) on its petition for breach of contract. Alabama argues the trial court erred in imposing sanctions against it for failure to produce a proper corporate des-ignee.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the judgment pursuant to Rule 84.16(b).

      . There were several motions ordered taken with the case, which we rale on as follows: Alabama’s motion to supplement legal file is granted. Trans Advantage’s motion to strike Alabama's supplemental legal file is denied. Trans Advantage’s motion to strike Alabama’s brief is denied. Finally, Trans Advantage's motion for attorneys’ fees is granted and Alabama is ordered to pay Trans Advantage the amount of $3,000 for attorneys' fees relating to this appeal.


text:
    Lavon HARRIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85188.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Michelle M. Rivera, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. 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.

Lavon Harris (Movant) appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. Movant pleaded guilty to and was convicted of robbery in the second degree, Section 569.030, RSMo 2000, for which Movant was sentenced to ten years’ imprisonment. On appeal, Movant argues the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because (1) Movant was coerced by counsel telling Movant that he would not prevail at trial, that Movant “effectively” had no choice but to plead guilty, and that he would not represent Movant if he chose to proceed to trial; and (2) counsel misinformed Movant about the 120-day shock incarceration program. 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 84.16(b).

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Dale HESTER, Defendant/Appellant.
    No. ED 84660.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Deborah Daniels, Shaun J. Mackel-prang, Assistant Attorneys General, Jefferson City, MO, for respondent.
    Timothy Forneris, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant, Dale Hester, appeals from a judgment entered on a jury verdict finding him guilty of robbery in the first degree, in violation of section 569.020 RSMo (2000), armed criminal action, in violation of section 571.015 RSMo (2000), and unlawful use of a weapon, in violation of section 571.030.1(4) RSMo (2000). The trial court found defendant to be a prior offender and sentenced him to thirteen years imprisonment for first degree robbery, thirteen years imprisonment for armed criminal action, and five years for unlawful use of a weapon, all sentences to be served concurrently.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, 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:
    Earme WALDON, Respondent, v. Gayle KILGORE, Appellant.
    No. ED 85183.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.

      Mark D. Hirschfeld, Clayton, MO, for Appellant.
    James P. Carmody, Clayton, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Gayle Kilgore (Wife) appeals from the trial court’s division of property following the dissolution of her marriage to Earme Waldon (Husband). Wife challenges the division of property and contends the trial court erred in awarding Husband his entire pension because the result was a disproportionate division of marital property.

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. However, 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 84.16(b).


author: BOOKER T. SHAW, Judge.

text:
    STATE of Missouri, Respondent, v. Lamont ROWAN, Appellant.
    No. ED 84449.
    Missouri Court of Appeals, Eastern District.
    June 28, 2005.

      Craig Allan Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   BOOKER T. SHAW, Judge.

Lamont Rowan (“Defendant”) appeals from the trial court’s judgment sentencing him to life imprisonment after a jury convicted him of second-degree felony murder, Section 565.021.1, RSMo 2000. In his sole point on appeal, Defendant argues the trial court erred when it sentenced him to life imprisonment, as opposed to a term of years, on the mistaken assumption that a life sentence gave Defendant a better opportunity to obtain an early release. We reverse and remand for re-sentencing only.

Defendant was convicted after a jury trial of one count of second-degree felony murder, Section 565.021.1. Because Defendant does not challenge the sufficiency of the evidence to support his conviction, we need not recite the facts from the underlying case. In his only point on appeal, Defendant challenges the trial court’s comments at the sentencing hearing. At the hearing, the State requested that Defendant be sentenced to a term of life imprisonment. Alternatively, defense counsel requested Defendant to be sentenced a ten year term of imprisonment. The trial court’s responses to these recommendations were as follows:

THE COURT: The jury has given you probably all the mercy the justice system has available for you. They have given you the opportunity for parole. They made a decision that you shouldn’t die in prison unless you choose to die in prison. So the board of probation and parole will be watching you. They will see how you handle yourself in prison. You will have the opportunity to cut this sentence to the level that [defense counsel] would otherwise have argued for you. That’s going to be essentially left up to you. It’s going to be in your hands. If you are truly sorry, this truly was an accident, if you are a good person, as the good pastor came in and put his recommendation on the line and argued for you, then it will show and you
will get that first eligibility date and you will get out. If you are as to what [the State] had suggested and if you are as the horrible facts in this case suggest, it will show, and none of us will ever see you again. That will be up to you. Anything else with respect to what’s up to me?
[DEFENSE COUNSEL]: Your Honor, I would remind the Court I believe Murder 2nd, would be 85 percent whatever [the] Court imposes, so I would remind the Court of that, just if I could.
THE COURT: But it’s life, so there is no 85 percent of life. They have a certain period of time that they start looking at it and that’s what they do. Now, if it was a determined number of years, like if I laid out 50, 60 years, then I could make sure that he would be gone for a very long period of time. To me, that would be harder on him than doing life. I can give a number of years, but I could make sure he dies in prison because of the 85 percent rule. But [the State] is not arguing for that in this case. So by giving him a life sentence, we’ re actually giving him a better shot at early release than if we had him down an extended number of years.

(Emphasis added). The trial court proceeded to sentence Defendant to a term of life imprisonment. Defendant appeals.

In his sole point on appeal, Defendant argues the trial court erred when it sentenced him to a term of life imprisonment, as opposed to a sentence for a term of years, upon the mistaken assumption that a life sentence would provide Defendant with a better opportunity for an early release. Specifically, Defendant argues that after calculating the minimum term he would have to serve in order to be eligible for parole with a life sentence, the trial court’s belief that he would be eligible for early release was erroneous, and therefore, this case should be remanded for re-sentencing. We agree.

Defendant concedes he has failed to preserve this issue for appellate review because he did not raise any objection at the time of sentencing. As such, review by this Court is for plain error only pursuant to Rule 30.20. “Plain error exists where the alleged error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice occurred.” State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004). (citations omitted). Courts on appeal have reviewed similar sentencing issues for plain error, and in some instances, granted relief. See State v. Olney, 954 S.W.2d 698 (Mo.App. W.D.1997); State v. Taylor, 67 S.W.3d 713 (Mo.App. S.D.2002).

Section 558.019.3 provides that “any offender who has pleaded guilty to or has been found guilty of a dangerous felony as defined in Section 556.061 ... and is committed to the department of corrections shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first.” Section 556.061(8) defines “dangerous felony,” and this includes murder in the second degree. The range of punishment for a person convicted of murder in the second degree as a Class A felony is “a term of years not less than ten years and not to exceed thirty years, or life imprisonment.” Section 558.011.1. Further, Section 558.019.4(1) provides “[a] sentence of life shall be calculated to be thirty years.”

The State concedes the trial court was mistaken when it said Defendant would become eligible for parole earlier under a life sentence than under a sentence for any term of years. Eighty-five percent of thirty years imprisonment would result in Defendant being required to serve 25.5 years at a minimum before becoming eligible for parole. This would be more time than if the trial court had chosen to sentence Defendant to a term of less than thirty years, which was permissible under the statute.

However, the State argues this mistake did not rise to the level of plain error because it did not produce a manifest injustice or miscarriage of justice. Specifically, the State alleges the trial court had no obligation to inform Defendant about parole eligibility, which is a collateral matter. Further, the State reasons the error was not evident, obvious, or clear on the record. Moreover, the State argues the trial court had a proper understanding with respect to the range of punishment, but merely misunderstood the consequences of the sentence imposed, and therefore, Defendant suffered no prejudice as a result of the sentence. We disagree.

Although we have not found a case directly on point, several Rule 24.035 post-conviction relief cases have addressed this issue, particularly where trial counsel and/or the trial court has affirmatively misinformed the movant about parole eligibility at sentencing. We find these cases persuasive because “how guilt [is] arrived at is not a question here. The question here is [what occurred at] sentencing.” Roller v. State, 84 S.W.3d 525, 529 (Mo.App. S.D.2002).

We agree with the State’s initial contention that the trial court has no obligation to inform a defendant of the collateral consequences of pleading guilty. Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999); Barmore v. State, 117 S.W.3d 113, 116 (Mo.App. E.D.2002); White v. State, 957 S.W.2d 805, 807 (Mo.App. W.D.1997). Information regarding parole eligibility is considered a collateral consequence. Fogle v. State, 124 S.W.3d 509, 511 (Mo.App. S.D.2004). Thus, neither the trial court nor trial counsel were obligated to inform Defendant about his parole eligibility. Hao v. State, 67 S.W.3d 661, 663 (Mo.App. E.D.2002).

This is not a case, however, where a defendant alleges the trial court failed to inform him about his parole eligibility. Here, Defendant is alleging the trial court affirmatively misinformed him that he would have a better opportunity for parole if he were given a life sentence as opposed to a sentence for a term of years. This Court has recognized a distinction between circumstances where a defendant is advised erroneously about parole eligibility and a failure to advise at all. See Hao, 67 S.W.3d at 663; Reynolds, 994 S.W.2d at 946 (recognizing “there is authority for the proposition that misinforming as opposed to failing to inform a defendant about eligibility for parole may undermine the volun-tariness of the plea”). “The distinction between direct and collateral consequences is unimportant and a different rule applies where counsel misinforms his [or her] client regarding a particular consequence.” Beal v. State, 51 S.W.3d 109, 112 (Mo.App. W.D.2001); See also Hao, 67 S.W.3d at 663; Copas v. State, 15 S.W.3d 49, 56 (Mo.App. W.D.2000). Logic dictates that we conduct a similar analysis when the sentencing court misinforms a defendant about his or her parole eligibility.

It is evident from the record that the trial court was mistaken about how much time Defendant would have to serve before being eligible for parole after receiving a life sentence. When defense counsel attempted to interject that he believed Defendant would have to serve 85% of his sentence, the trial court disagreed, stating “[T]here is no 85 percent of life.” In addition, the trial court indicated it could sentence Defendant to “50, 60 years,” which is also not permissible under the range of punishment.

Further, the State’s argument that Defendant has suffered no prejudice because the trial court understood the range of punishment, but merely misunderstood the consequences of the sentence imposed, must fail. It is evident from the trial court’s comments that it did not, in fact, understand the range of punishment. Specifically, the court stated it could give Defendant a greater sentence than allowed by statute when it indicated it could sentence him to “50, 60 years” and that it “could make sure he dies in prison because of the 85 percent rule.” The trial court also expressed a desire to grant Defendant leniency given the circumstances of the crime and its desire to give him the best opportunity for parole. However, the trial court’s mistaken belief about Defendant’s parole eligibility resulted in the imposition of the maximum sentence permissible under the statute.

Moreover, it is of no avail that the trial court may choose to impose the same sentence upon remand. “A sentence passed on the basis of a materially false foundation lacks due process of law and entitled the defendant to a reconsideration of the question of punishment in light of the true facts, regardless of the eventual outcome.” Wraggs v. State, 549 S.W.2d 881, 884 (Mo.1977). See also Olney, 954 S.W.2d at 700 (remanding for re-sentene-ing and rejecting State’s argument that trial court would impose same sentence despite mistaken belief that sentences must run concurrently) and Roller, 84 S.W.3d at 529 (same). “We cannot say that the judge might not have pronounced a less severe sentence if he thought he had discretion to do so.” Roller, 84 S.W.3d at 528.

The judgment of the trial court is reversed and the case is remanded for re-sentencing.

REVERSED AND REMANDED.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J., Concur.

      . All statutory references will be to RSMo 2000 unless otherwise indicated.

      . The statutory range of punishment for this offense appears nowhere in the record during the sentencing hearing.


text:
    Patricia F. PETERS, Appellant, v. DOLLAR GENERAL CORPORATION, Respondent.
    No. ED 83738.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    William M. Wunderlich, High Ridge, MO, for appellant.
    Wm. Clayton Crawford, Kansas City, MO, for respondent.
    Before CLIFFORD H. AHRENS P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Patricia F. Peters appeals the judgment of the trial court which granted a directed verdict in favor of Dollar General Corporation (“Dollar General”). Peters claims the trial court erred in directing a verdict in favor of Dollar General because she made a submissible case. Peters also argues that the trial court erred in excluding certain expert testimony.

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

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


text:
    STATE of Missouri, Respondent, v. Lonnie BRAGG, Defendant/Appellant.
    No. ED 84989.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 28, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard R. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendant, Lonnie L. Bragg, appeals the judgment entered upon his conviction by a jury for first-degree robbery, Section 569.020 RSMo.2000. We have reviewed the parties’ briefs and the record on appeal and find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Wendell ROBINSON, Defendant/Appellant.
    No. ED 84976.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Deborah Daniels, Assistant Attorney General, Richard A Starnes, Jefferson City, MO, for respondent.
    Craig Johnston, Assistant State Public Defender, Columbia, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR. J.
   ORDER

PER CURIAM.

Defendant, Wendell Robinson, appeals from a judgment entered after a bench trial finding defendant guilty of one count of first degree burglary, in violation of Section 569.160 RSMo (2000) (Count I); two counts of armed criminal action, in violation of Section 571.015 RSMo (2000) (Counts II and IV); one count of first degree robbery, in violation of Section 569.020 RSMo (2000) (Count III); one count of unlawful use of a weapon, in violation of Section 571.030.1(4) RSMo (2000) (Count V); one count of resisting arrest, in violation of Section 575.150 RSMo (2000) (Count VI); and one count of escape from custody, in violation of Section 575.200 RSMo (2000) (Count VII). The court sentenced defendant to ten years imprisonment on each of Counts I, II, III and IV, and four years imprisonment on each of Counts V, VI and VII, all sentences to be served concurrently.

No error of law appears and 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 is affirmed pursuant to rule 30.25(b).


text:
    Richard McNEIL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84805.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Gwenda R. Robinson, District Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Lisa M. Kennedy, 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, Richard McNeil, appeals from the judgment denying on the merits after an evidentiary hearing his Rule 29.15 motion for post-conviction relief. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Christopher WILSON, Defendant/Appellant.
    No. ED 84766.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Deborah Daniels, Shaun J. Mackel-prang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Irene Earns, Columbia, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered on his conviction by a jury of committing violence to an employee of the department of corrections, in violation of section 217.385 RSMo (2000). The trial court found him to be a prior and persistent offender and sentenced him to fifteen years imprisonment, to be served consecutively to the sentence he was then serving.

No error of law appears and 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 is affirmed in accordance with Rule 30.25(b).


text:
    Charles MORRIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84836.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Michael K. Kielty, St. Charles, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael W. Bradley, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Charles Morris (“defendant”) appeals the judgment of his conviction of four counts of first degree statutory sodomy and two counts of sexual misconduct involving a child. Defendant claims the trial court erred in denying his motion to suppress statements and in admitting evidence regarding his statements to police. Defendant also argues the trial court erred in denying his motion to suppress physical evidence and in admitting evidence of cards found in his closet.

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:
    Bradley J. LYNCH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85234.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Edward S. Thompson, St. Louis, MO, for appellant.
    Deborah Daniels, Andrea K. Spillars (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Bradley Lynch appeals the judgment denying his Rule 24.035 motion. We have reviewed the parties’ briefs and the record on appeal. The judgment of the motion court is based on findings of fact that are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value. The parties have, however, been provided a memorandum setting forth the reasons for our decision in accordance with our local Rule 405. We affirm the judgment under Rule 84.16(b).


text:
    James Wesley EDDY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64331.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
    ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   ORDER

PER CURIAM.

James W. Eddy entered a guilty plea to the class C felony of possession of a controlled substance. He appeals from the denial, without an evidentiary hearing, of his motion for postconviction relief under Rule 24.035. Eddy claims that the motion court clearly erred in denying him an evi-dentiary hearing because he pled unrefut-ed facts that, if proved, would warrant postconviction relief.

Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Alban PONTE, Appellant.
    No. WD 64106.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Irene C. Earns, State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim and Alison Brown, Assistant Attorneys General, Jefferson City, MO, for Respondent.
    Before: ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   ORDER

PER CURIAM.

Alban Ponte appeals from the judgment entered upon his conviction by a jury of the class D felony of possession of drug paraphernalia with intent to manufacture methamphetamine.

Affirmed. Rule 30.25(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Nedra GARCIA, Claimant/Appellant, v. MIDTOWN HOME IMPROVEMENTS, INC., and Division of Employment Security, Respondents.
    No. ED 85917.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 28, 2005.
    Nedra Garcia, St. Peters, MO, for Appellant.
    Cynthia A. Quetsch, Jefferson, City, MO, for Respondent Midtown Home Improvements.
   GEORGE W. DRAPER III, Chief Judge.

Nedra Garcia (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her unemployment benefits. Claimant’s notice of appeal to this Court is untimely. As a result, we have no jurisdiction and dismiss Claimant’s appeal.

Claimant applied for unemployment benefits after being discharged from her employment with Midtown Home Improvements, Inc. (Employer). A deputy concluded that Claimant was eligible for unemployment benefits, because her discharge was not for misconduct connected with work. Employer appealed to the Appeals Tribunal of the Division of Employment Security, which reversed the deputy’s decision. The Appeals Tribunal concluded Claimant was disqualified for waiting week credit and benefits for five weeks. Claimant appealed to the Labor and Industrial Relations Commission (Commission), which affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified she mailed the Commission’s, decision to Claimant on January 25, 2005. Claimant appealed to this Court by filing a notice of appeal with the Commission by facsimile on February 25, 2005.

Once the Commission’s decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on January 25, 2005. The decision became final ten days later and the notice of appeal was due on February 24, 2005. Section 288.200; Section 288.210. Claimant sent her notice of appeal by facsimile on February 25, 2005. If a notice of appeal is faxed, it is deemed filed on the date the Division’s fax machine receives it. 8 C.S.R. 20-2.010(4). Claimant’s notice of appeal is deemed filed on February 25, 2005, and was untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. Claimant concedes in her response that she faxed the notice of appeal on February 25, 2005, but she believed that it was timely. However, Claimant is mistaken. Despite Claimant’s reasons for filing her notice of appeal late, section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

The Claimant’s appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., CONCUR.


text:
    Fredric MERTELL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85233.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Timothy Forneris, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., LAWRENCE E. MOONEY, J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Frederic Mertell (“movant”) appeals the judgment of the motion court dismissing his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 as untimely. Movant claims the court erred in dismissing his motion because the untimely motion was due to circumstances out of his control, and the court should have considered movant’s motion on the merits.

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

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


text:
    Cheyenne HELMS, by and through her Conservator, John R. GUNN, Appellant, v. ST. JOHN’S MERCY HEALTH SYSTEM d/b/a/ St. John’S Mercy Medical Center, Respondent, and Psych Care Consultants, LLC., Defendant.
    No. ED 84673.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 28, 2005.
    James P. Lemonds, Eric Vieth, St. Louis, MO, for appellant.
    James C. Thoele, St. Louis, MO, for repondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

In this negligence action, the plaintiff, Cheyenne Helms, appeals the judgment following a jury verdict in favor of the defendant, St. John’s Mercy Health System d/b/a St. John’s Mercy Medical Center. The sole issue presented on appeal is whether the jury was properly instructed. We have reviewed the parties’ briefs and the record on appeal and find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided the parties with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment is affirmed. Rule 84.16(b).

      . The underlying action was brought by Cheyenne Helms, by and through John R. Gunn, Conservator of the Estate of Cheyenne Helms.


author: JAMES K. PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry E. MAHONEY, Defendant-Appellant.
    No. 26581.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 2005.

      Mark A. Grothoff, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Assistant Attorney General, Jefferson City,, for Respondent.
   JAMES K. PREWITT, Judge.

Larry E. Mahoney (“Movant”) was charged with two counts of forcible rape (§ 566.030, RSMo 2000), three counts of forcible sodomy (§ 566.060, RSMo 2000), and one count of the class B felony of kidnapping (§ 565.110, RSMo 2000). Following jury trial, Movant was convicted on all six counts and was sentenced to concurrent prison terms of thirty years on the rape and sodomy charges and, consecutive to the other counts, ten years’ imprisonment on the felony kidnapping charge. This Court affirmed his convictions and sentences in State v. Mahoney, 70 S.W.3d 601 (Mo.App.2002).

On July 18, 2002, Movant filed a pro se motion under Rule 29.15. Counsel was appointed, and an amended motion for post-conviction relief was filed on October 21, 2002. An evidentiary hearing was held on February 13, 2004. The motion court entered its findings and conclusions denying Movant’s motion on August 27, 2004. Movant appeals.

Movant claims that he received ineffective assistance of counsel in that his trial counsel failed to call Mark Sears as a witness and failed to cross-examine the victim regarding her description of Mov-ant’s tattoos and her claim that Movant was circumcised. Under his first point, Movant asserts that Sears’ testimony would have contradicted the state’s theory and supported his defense, and had Sears been called and the jury heard Sears’ testimony, there is a reasonable probability that the outcome of Movant’s trial would have been different.

On review of a ruling on a motion for post-conviction relief, this court is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 29.15(k). Findings and conclusions are “clearly erroneous” only if, after a review of the entire record, we are left with a definite and firm impression that a mistake has been made. State v. Smith, 949 S.W.2d 901, 906 (Mo.App.1997).

To prevail on his claim, Movant must establish that counsel failed to exercise the customary skill and diligence that a reasonably-competent attorney would exercise under similar circumstances and that he was prejudiced by such failure. Barnum v. State, 52 S.W.3d 604, 607 (Mo.App.2001). “Prejudice exists only where trial counsel’s acts or failures to act are outcome determinative.” Id. (quoting State v. Harris, 870 S.W.2d 798, 814 (Mo.banc 1994)). Movant must demonstrate that there is a reasonable probability that the outcome of the trial would have been different had counsel not erred. Id. Movant must prove his claims by a preponderance of the evidence. Rule 29.15(i).

The victim testified that when she met Movant and his step-son, Steven Willard, at a Hardee’s restaurant in the early morning hours of April 24, 1999, Movant discharged a handgun from a car window into the air. The victim alleged that Mov-ant later held the gun on her as he ordered her to strip and held it to her neck as he forced her to perform oral sex.

Mark Sears is a Springfield police officer who was working at the Hardee’s restaurant during the hours that victim and Willard testified the gun was discharged in close proximity to the restaurant. Movant claimed that Sears was willing and available to testify that he did not hear the discharge of a weapon on the morning in question. Sears testified at Movant’s evi-dentiary hearing that he would have testified that he did not hear a weapon discharged at the time alleged. On appeal, Movant contends that Sears’ testimony would have contradicted the testimony of “the state’s main witnesses,” challenged their credibility, and “would have likely i’esulted in the jury finding a reasonable doubt and acquitting [Movant].” [AB 20-21]

On cross-examination at Movant’s evi-dentiary hearing, Sears testified that typically at that time of morning, there would be “between [fifty] and a hundred people” inside the restaurant. When asked whether it would be “a pretty noisy, rowdy crowd[,]” Sears responded, “Extremely.” Sears testified that if there was gunfire in the vicinity of the restaurant, it was possible that he might not have heard the shot. [Tr. 11-12]

Springfield police officer Robert Pitts also testified at Movant’s evidentiary hearing and was asked to describe the typical activity in and around the Hardee’s restaurant at two o’clock a.m. on a weekend morning. Pitts stated: “[S]ometimes there are up to 150 to 200 people in and around that Hardee’s, a lot of loud noise. Certainly if you’re inside the restaurant, a large crowd, and then the large crowd outside, there’s a chance that you-wouldn’t have heard the gunshot.” [Tr. 17]

Movant’s trial counsel testified at the evidentiary hearing that it would have been inconsistent with his trial strategy to call Sears to testify at trial, because he did not want to emphasize the use of a gun on a thirteen-year-old girl. Counsel stated that he did not want to “talk about the gun or any part of her story as much as [he] could in the trial and really focused on the jury’s attention on the lack of corroborating evidence, ... which was our primary point of our defense.” [Tr. 66]

The motion court denied relief on Mov-ant’s contention that that counsel’s failure to call Officer Sears to testify was prejudicial, finding, in part, that “[t]he actual likelihood that a gunshot would be heard by someone inside the business at that time was minimal. Officer Sears’ testimony would not have assisted the defense and Movant suffered no prejudice.” [LF 28]

We find no error in the motion court’s findings and conclusions on this point. Movant has failed to demonstrate that he was prejudiced. The selection of witnesses and the introduction of evidence are questions of trial strategy, and counsel’s decision not to call a witness, as a matter of trial strategy, is virtually unchallengeable. Leisure v. State, 828 S.W.2d 872, 875 (Mo.1992). “Where trial counsel decides as a matter of trial strategy to pursue one evidentiary course to the exclusion of another, trial counsel’s informed, strategic decisions not to offer certain evidence is not ineffective assistance of counsel.” State v. Simmons, 944 S.W.2d 165, 181 (Mo.banc 1997). Point I is denied.

Movant’s second point asserts that the motion court erred in denying his Rule 29.15 motion alleging ineffective assistance of counsel, in that counsel failed to question the victim regarding previous statements inaccurately describing tattoos on Movant’s body and inaccurately stating that Movant was circumcised. Movant contends that he is not circumcised and does not have the tattoos described by the victim, and that a reasonably-competent attorney would have brought such errors to the jury’s attention. Movant alleges that counsel’s failure to elicit this testimony at trial clearly prejudiced him “in that such testimony would have affected the jury’s assessment of [victim’s] testimony and would have established [victim’s] allegations against [Movant] as a fabrication.” [AB 23]

At Movant’s criminal trial, the victim was not questioned regarding Movant’s tattoos or whether he was circumcised. Prior to then, she was interviewed by Officer Pitts, who “was the lead follow-up investigator.” [Tr. 14] Pitts testified at Movant’s evidentiary hearing, however he was not questioned regarding the victim’s allegedly inaccurate descriptions. Pitts authored a “Criminal Case Narrative,” marked and admitted as Plaintiffs Exhibit 3, wherein he states that the victim described the tattoos to another officer, Za-netta Gann: Movant “had half of an eagle tattoo on his upper chest, left area. Had ‘Larry’ in cursive on his right shoulder, had a woman Indian head on his upper chest, right area and an unknown tattoo on the back of his right hand.” [Plaintiffs Ex. 3, p. 2]

At the preliminary hearing, the victim described tattoos on Movant: “[H]e has Larry in cursive on his right um upper arm, ... he had an eagle on his chest on one side and I think a head of the lady Indian on the other side.” [Plaintiffs Exhibit 4, p. 25]

Movant displayed his tattoos at the evi-dentiary hearing, and they were photographed. Movant testified that he had two tombstones tattooed on his chest, a rose with two names on his left forearm, “Babe” on the back of his right hand, an eagle on his right upper arm, and “Larry” across his left shoulder. [Tr. 50-51].

At Movant’s evidentiary hearing, when trial counsel was questioned regarding the victim’s inaccurate descriptions of the tattoos, he stated: “To me this was a nonis-sue [sic].” Counsel testified that he did not want the discrepancy in the description of Movant’s tattoos “to be gone into” because:

[Victim] was describing an occurrence that didn’t just last a few minutes or so. She was describing an occurrence that lasted over a period of time and moved from location to location. She was describing having a gun put to her head, forced to perform fallatio on [Movant], ... threats of violence, really emotionally riveting story, aside from the fact that there was little DNA evidence to corroborate it.
With [Movant’s] tattoos, one could imagine that a 13-year-old girl might not accurately recall just exactly what tattoo or what it was looking like in the dark as she’s being repeatedly raped and sodomized at gunpoint in the course of the evening.
One thing that she might recall was that there were, in fact, tattoos on [Mov-ant’s] body. And I recall [Movant] showing me his tattoos and he was describing what his tattoos were and how they were different from what [the victim] was saying. To me this was a nonissue [sic]. It was an issue really I would not want to have a rebuttal from the prosecutor simply because of what I just said. [Tr. 79]

On this issue, the motion court found:

Movant testified at the evidentiary hearing that he did not have an Indian head on his chest, as victim claimed, but rather a set of two tombstones. An eagle tattoo which victim claimed was on his chest, was in fact on his right arm.... As the photographs indicate, the tombstone tattoo on the right side of his chest could easily have been perceived as a head by someone unfamiliar with its precise nature. Had the jury seen the tattoos and heard the victim’s testimony regarding them, it could have reinforced, not contradicted, the witness’ credibility. [LF 32]

In her testimony at the preliminary hearing, the victim also stated that Movant was circumcised, which Movant denies. She was later asked whether she knew “exactly what it means for a guy to be circumcised[,]” and she again responded in the affirmative, stating, “[I]t just means that the extra skin was removed.” [Tr. 38, 39]

At the evidentiary hearing, trial counsel addressed the issue of the victim’s inaccurate claim that Movant was circumcised. Counsel testified:

[T]he issue of circumcision was discussed a great deal. If a man’s penis is erect and he’s uncircumcised, I’m sure the prosecutor would be capable of making an argument that the head ... of the penis would be revealed and I’m sure could be capable of making an argument that a 13-year-old girl would probably not know the difference. And that’s certainly not the kind of argument, because it relates to chastity, that I would want to have entered into this case. [Tr. 78]

The motion court found, in part:

As to the victim’s previous statements regarding circumcision, trial counsel testified that although [victim] knew the technical definition of circumcision, a jury could well believe that an inexperienced thirteen year old might not be able to correctly determine the state in an erect penis. It would obviously not be in his client’s best interest to focus the jury on that possibility. He also testified that as a matter of trial strategy he had elected not to go into the testimonial inconsistencies (which could be explained by her age and the circumstances of the offense) and focus instead on the lack of physical evidence to support her story. By focusing on the evidence rather than the victim herself, counsel avoided the possibility of offending jurors who might become protective of a child’s vulnerability. In this case, trial counsel was at a further disadvantage because the child had testified that she was ill at the time of the trial.... It cannot be said that this was an unreasonable trial strategy. [LF 32]

Again, we find no error in the motion court’s denial of Movant’s claims regarding these issues. Subjects covered during cross-examination are generally matters of trial strategy and left to the judgment of counsel. State v. Whitfield, 939 S.W.2d 361, 370 (Mo.banc 1997). Movant has not demonstrated that the outcome would have been different had counsel brought the discrepancies to the attention of the jury. Point II is denied.

The motion court’s denial of post-conviction relief is affirmed.

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


author: KENNETH W. SHRUM, Judge.

text:
    STATE of Missouri, PlaintiffRespondent, v. Clayton D. PRICE, Defendant-Appellant.
    No. 26318.
    Missouri Court of Appeals, Southern District, Division Two.
    June 29, 2005.

      Thomas D. Carver, Springfield, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Office of Attorney General, Jefferson City, for Respondent.
   KENNETH W. SHRUM, Judge.

A jury found Clayton Price (“Defendant”) guilty of statutory sodomy in the first degree (§ 566.062). On appeal, Defendant charges the trial court committed plain error on four separate occasions when it did not sua sponte exclude certain at-trial testimony. We affirm.

FACTS

Since Defendant does not challenge the sufficiency of the evidence, we view the evidence that the jury heard in the light most favorable to the jury’s verdict, disregarding all contrary evidence and inferences. State v. Lopez, 128 S.W.3d 195, 196[1] (Mo.App.2004).

M.A. (“Victim”), born June 16, 1995, lived primarily with her paternal grandmother, Jeanne Graves (“Graves”), for the first nine months of her life. From approximately March 1996 to March 2002, Victim resided with her mother, Tonya Cavaness (“Mother”).

Mother began dating Defendant in December 2001, and he moved into her home one month later. On the morning of March 11, 2002, Victim called Graves from Mother’s house and asked her “to come and pick me up.” She told Graves that Defendant and Mother had been hurting her.

When Graves arrived, she found Victim crying, shaking, and terrified. After discussions among Graves, Mother and Victim’s maternal grandmother, it was agreed Victim would go to Graves’ house after Graves got off work. That evening, Victim “was still scared” and “would not talk about anything.”

Three days later, Victim told Graves that Defendant touched her vagina and anus. The next morning (Friday), Graves reported this to the Division of Family Services. On Monday (March 18), Victim was examined by Mitzi Huffman (“Nurse Huffman”), a nurse practitioner with the local child advocacy center. After a general physical examination, Nurse Huffman sought to examine Victim via “colposco-py.” This proposed examination upset Victim and she “became extremely hysterical,” exclaiming “you’re not going to touch me, you’re not going to put anything inside of me.”

Ultimately, the procedure began after explanations and other attempts to calm Victim. Even so, Nurse Huffman characterized the examination as “inadequate” in that she was unable to complete it. The colposcopy videotape was reviewed by Dr. Lawrence Huffman (“Huffman”), who also worked at the child advocacy center. He testified that it was “inadequate in many respects in terms you couldn’t see inside [the vagina] very well.” However, he did note a “scratch” that was “inside the outer edge of the vagina.”

After the physical examination, Victim told Nurse Huffman that Defendant “hurt me, he put his fingers inside of me three times.” Victim then recounted, via a diagram, where Defendant touched her.

Due to the inadequacy of the first vaginal examination, Victim was asked to undergo another such examination. She did so on March 27, 2002. After this second procedure, another videotaped interview of Victim was conducted. During this, Victim again told Nurse Huffman Defendant had touched her. When asked to indicate on a diagram of a female body where the touching occurred, Victim marked the genital and rectal part of the diagram.

Victim’s at-trial testimony was that Defendant penetrated her vagina and anus with his fingers. Victim also told the jury that Defendant threatened to kill her and her paternal grandparents if she reported the abuse. She also testified that Cathy Adams, her maternal grandmother, told her to lie by telling the authorities that she made up the abuse allegations.

Defendant testified on his own behalf and told the jury that he did not sexually abuse Victim. Another defense witness (Mother) testified Victim wanted to live with Graves, and this desire was heightened “every time [Victim] would get mad at [Mother], if [Mother] wouldn’t let her do what she wanted to do.” Mother told the jury Victim “was out of control” and a discipline problem. She also said she never saw Defendant inappropriately touch Victim and that Victim was alone with Defendant on only two occasions.

Another defense witness (Victim’s maternal grandmother) testified Victim told her “that she had lied” about the abuse. Finally, Dr. Robert Block, testifying for the defense, stated that the physical findings regarding Victim’s rectum and vagina (as reported by the Huffinans) could not be linked to sexual abuse.

After the case was given to the jury, it deliberated twenty minutes and returned a guilty verdict. The court sentenced Defendant to twelve years’ imprisonment. This appeal followed.

Point I: Testimony Commenting on Victim’s Credibility

Defendant’s first point on appeal maintains the trial court committed plain error when it allowed Nurse Huffman and Dr. Huffman “to offer particularized expert testimony as to the veracity of [Victim’s] testimony that she had been sexually abused.” Defendant claims that their testimony improperly “invaded the province of the jury in violation of [Defendant’s] right to a fair trial.”

As a general rule, “expert witnesses should not be allowed to give their opinion as to the veracity of another witness’s statement, because in so doing, they invade the province of the jury.” State v. Churchill, 98 S.W.3d 536, 538-39[3] (Mo.banc 2003). When an expert witness testi-. fies that a particular witness is telling the truth, prejudice often arises because the expert’s testimony invests scientific cachet to an issue (credibility) that the jury is capable of determining without an expert’s help. State v. Taylor, 663 S.W.2d 235, 240-41 (Mo.banc 1984); State v. Williams, 858 S.W.2d 796, 798-800 (Mo.App.1993).

Even so, credibility assessments of child abuse victims by expert witnesses in criminal cases do not always mandate reversal. Churchill, 98 S.W.3d at 539 n. 8. Moreover, Defendant seeks plain error relief, which requires more than merely showing prejudice; he must show that an “error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.” State v. Rutherford, 967 S.W.2d 679, 682 (Mo.App.1998).

In criminal cases charging sexual abuse of children, there are two types of expert testimony that typically give rise to a challenge: general and particularized. Churchill, 98 S.W.3d at 539. General profile testimony describes a generalization of behaviors and other characteristics commonly found in victims of sexual abuse which is usually admissible. Id.; Williams, 858 S.W.2d at 798-99. “Particularized testimony is that testimony concerning a specific victim’s credibility as to whether they have been abused.” Churchill, 98 S.W.3d at 539. In most instances, this type of testimony, i.e., that which explicitly or implicitly vouches for a victim’s credibility, is inadmissible. Williams, 858 5.W.2d at 799.

In the argument beneath Point I, Defendant claims Nurse Huffman “improperly gave particularized testimony concerning [Victim’s] credibility.” To support that conclusory comment, Defendant asserts that “Nurse Huffman testified ... she believed [Victim] because her ‘injuries’ were consistent with sexual abuse because of the ‘knowledge and experience and history given by the child.’ ” (Emphasis supplied.) This argument fails, however, because it is based on a mischaraeterization of the record. Nurse Huffman never testified she believed Victim. To the contrary, Nurse Huffman’s testimony was that, in her opinion, the injuries noticed on the first examination (rectal scarring) were consistent with sexual abuse. This was based on her knowledge, training, twenty-nine years of experience, Victim’s social and medical history, and the injuries themselves. Such testimony, i.e., the rectal scarring observed on Victim was “consistent” with sexual abuse, was admissible expert testimony. Taylor, 663 S.W.2d at 239; see also State v. Pollard, 719 S.W.2d 38, 41-42 (Mo.App.1986) (finding no manifest injustice when a doctor testified that injuries were earned by sexual abuse rather than stating the injuries were consistent with abuse).

Turning to another part of his first point, the following is an excerpt lifted from the argument section of Defendant’s brief:

“Nurse Huffman was particularly impressed with [Victim’s] ability to discern feelings of anger toward her mother, a skill not normal for a child [Victim’s] age. She testified:
‘There’s a great deal of psychological data behind it, but for a child of that age to be aware of her feelings and be able to separate them, being mad and sad because of the loss of feeling protected by her mother, was profound forme.’
“Nurse Huffman also testified that despite performing 150 to 200 SAFE exams each year, she remember[ed] [Victim] ‘for a lot of personal reasons,’ a fact not relevant for any other purpose other than to convey to the jury that she believed the child.
“Nurse Huffman’s testimony is no different from the particularized expert testimony the court in Churchill found to be reversible error. Her belief that [Victim] was abused was based on the child’s history, demeanor and especially her ability to discern emotion that went beyond the scope of her developmental age.
“Further, Nurse Huffman placed [Victim] at the top of the list of children she had interviewed over the years, which could have no other effect but to convince the jury that more than any other child, [Victim] was telling the truth. This testimony in effect quantified the believability of [Victim’s] testimony because her story stood out more than any other heard by Nurse Huffman.” (Emphasis supplied.)

This “argument” comprises all of Defendant’s reasons regarding why he claims that Nurse Huffman’s “profound” impact observation and her “personal reasons” remark constituted particularized comments about Victim’s veracity and why they led to a miscarriage of justice or manifest injustice. However, it is an argument that gives little or no explanation of why this is so. The need to fully develop such argument is especially important, when as here, much of the questioned testimony was ambiguous at best.

The plain error rule is to be used sparingly, and it does not provide an avenue of relief for every trial court error that has not been properly preserved. State v. Johnson, 150 S.W.3d 132, 136[3] (Mo.App.2004). “Plain errors are evident, obvious, and clear, and we determine such errors exist based on the facts and circumstances of each case.” Id. at 136[4]. A plain error claim must establish on its face substantial grounds for an appellate court to believe a manifest injustice or miscarriage of justice will result if the error is left uncorrected. Id. at 136[5],

Defendant’s arguments about Nurse Huffman’s testimony fall far short of this standard. Her “profound” impact testimony and her “personal reasons” statement are nothing more than isolated, ambiguous comments that were neither highlighted nor stressed by the State. Defendant has not explained how, nor can we discern how, these ambiguous remarks could be interpreted as vouching for Victim’s credibility. Because of the ambiguity of these statements, we decline to review for plain error. This follows because Defendant cannot facially show that the alleged errors were obvious, evident, and clear errors. Johnson, 150 S.W.3d at 136[4].

Defendant’s final claim of trial court error under Point I relates to Dr. Huffman’s testimony about why the col-poscopy videotapes of children are routinely destroyed by the child advocacy center. He testified that destruction of such tapes was not an unusual practice because “[t]he videotapes represent a real pot of gold for anyone who would want to misuse these.” To explain, Dr. Huffman testified:

“Well, they could put them out on the Internet for one thing. They could steal them and put them out on the Internet. They — child abusers and pedophiles delight in having video pictures of what has happened or what they’ve done, and they share these, one with another, and they are able to sort of have sexual stimulation on demand, you would think, by being able to run the video again.”

The following is Defendant’s argument for reversal because of this testimony:

“Dr. Huffman believed that it was necessary to destroy the videotape of [Victim’s] exam to keep the tape out of the hands of her abuser. His statements conveyed to the jury the message that [Victim] was in fact sexually abused and that he protected her from further exploitation by destroying the videotape of her colposcopy exam.”

The subject videotapes were a product of the colposcopy examinations of Victim. They were described as videotapes that magnified the genitalia of the child subject “25 to 50 times” normal size. Also, the center (where the tapes had previously been stored) was subject to break-in attempts. Moreover, in some instances, the faces of the children being examined could be seen in the video. When Dr. Huffman’s comments are read in this context, it becomes clear that he was not referring to Defendant as a sexual abuser. Nor can it be said, via use of this comment, Dr. Huffman believed that abuse actually occurred. With the genitalia magnified on the videotape, any pedophile or child abuser in possession of the tapes might use them to gain sexual gratification regardless of whether the child subject suffered abuse. We find no plain error in the admission of Dr. Huffman’s testimony describing why the videotapes were destroyed.

Defendant’s first point is denied.

Point II: “Adam’s Scale” Testimony

Defendant’s second point charges the trial court plainly erred when it allowed Dr. Huffman to testify about the “Adam’s Scale.” Defendant asserts the trial court should have sua sponte precluded Dr. Huffman from testifying about the scale. He premises this argument on the fact that there was no evidence adduced showing the general scientific acceptance of its use. As such, he claims the testimony was inadmissible because it was not shown that the Adam’s Scale met the standards of admission of scientific evidence in criminal cases. Defendant’s argument fails, however, because he has waived any alleged error stemming from admission of this evidencé.

To explain, Dr. Huffman first testified only to the general nature of the scale, i.e., he told the jury what it was. He then attempted to tell the jury what application of the scale to Victim would show, i.e., testimony about the degree of probability that Victim was abused by use of the scale. Thereon, defense counsel objected that this would impermissibly allow Dr. Huffman to testify about the “ultimate issue” in the case. The prosecutor responded that the testimony did not deal with an ultimate issue, namely, that Defendant committed abuse, but rather dealt with the question of whether abuse in general occurred. At this point defense counsel asked to go “[o]ff the record,” a request the court granted.

Later, the judge announced the end of the off-record session, and the proceedings returned to open court with a discussion among the attorneys and the trial judge outside the hearing of the jury. Then, defense counsel affirmatively stated, “I’ll withdraw the objection.” With the record in that posture, Dr. Huffman told the jury the results of his use of the Adam’s Scale to gauge the probabilities that Victim suffered abuse.

When defense counsel told the court that the objection was withdrawn, he informed the court that he, in fact, had no objection to the evidence. Consequently, this court’s holding in State v. Williams, 118 S.W.3d 308 (Mo.App.2003), resolves the point adversely to Defendant.

“No criminal trial or judgment should be affected, in any manner, by an error committed at the instance of the defendant. State v. Goudeau, 85 S.W.3d 126, 129 (Mo.App.2002); § 545.030.1. As distinguished from a simple failure to object, announcement by the defense of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.”

Id. at 313[10,11].

This hard and fast rule attends even when a defendant seeks plain error review. Id. at 313. The reason for this is explained in State v. Yole, 136 S.W.3d 175 (Mo.App.2004).

“To hold generally that a party does not waive plain error review on direct appeal when affirmatively assenting to the introduction of evidence ... places the trial court in a precarious position. Counsel appropriately resents judicial interference in their appropriate representation of a client during trial. Counsel makes many tactical decisions at trial, and the court is not privy to the mental process in determining the tactical approach employed by counsel. Thus, when counsel affirmatively represents to the court the waiver of any objection to the introduction of evidence, the court can assume that counsel’s decision is reasoned and calculated and that counsel does not want the court to preclude introduction of the evidence.”

Id. at 180.

Point II is denied.

Point III: “Uncharged Bad Conduct” Testimony

Defendant’s third point again seeks plain error review of an alleged trial court error. Specifically, he characterizes certain remarks by Nurse Huffman as “uncharged bad acts” testimony, i.e., that Defendant had sexually abused another child. He insists that such testimony resulted in manifest injustice or a miscarriage of justice. We disagree.

It is axiomatic that the “accused has the right to be tried only for the crimes with which he [or she] has been charged.” State v. Stallings, 957 S.W.2d 383, 390[13] (Mo.App.1997). Consequently, evidence of prior bad acts or misconduct is inadmissible to show that an accused has a propensity to commit the charged crime. State v. Tolliver, 101 S.W.3d 313, 315[2] (Mo.App.2003).

“To violate the rule prohibiting evidence of other crimes or misconduct by the accused, the evidence must show the accused committed, was accused of, was convicted of, or was definitely associated with, the other crimes or misconduct.” State v. Ponder, 950 S.W.2d 900, 911-12[14] (Mo.App.1997). “Vague references are not characterized as clear evidence associating a defendant with other crimes.” State v. Bolds, 11 S.W.3d 633, 638 (Mo.App.1999).

Defendant points to two instances where Nurse Huffman allegedly associated Defendant with other sexual misconduct. The first came as she explained why she initially met with Victim. In that regard, Nurse Huffman testified:

“Part of the protocol for our center is that when a social worker, in this instance, calls in, we ask them to send a written outline declaring the patient’s name, age, insurance numbers, phone numbers and a one-page—one line—and when this child was scheduled not by me, but by our coordinator, it stated that a two and a six-year-old female

Thereon, the prosecutor interrupted her and the court instructed her to only answer the prosecutor’s “very specific question.”

The other alleged “bad conduct” testimony came as Nurse Huffman was describing a State exhibit. This exhibit depicted a female body form on which Victim wrote numbers to indicate how many times she was touched. During this, the prosecutor asked Nurse Huffman about a “backwards 3” on the exhibit and what it was “in response to.” She replied, “[h]ow many times, I believe that her — she stated that her sister had been — .” Thereon, the prosecutor interrupted, saying: “No, no, just talk to me about [Victim.]”

We set out the questioned testimony verbatim because it clearly shows that it did not violate the rule prohibiting evidence of other crimes or misconduct by the accused. Even if viewed most favorably to Defendant’s position, Nurse Huffman’s comments cannot be characterized as dear evidence that definitely linked Defendant to other crimes or bad conduct. Ponder, 950, S.W.2d at 911-12. At most, her comments could only be characterized as “vague references” that do not afford Defendant any relief under the plain error standard. Bolds, 11 S.W.3d at 638. Point III is denied.

Point IV: Testimony About the Colpos-copy Videotape

In his final point, Defendant alleges the trial court committed plain error when it allowed testimony concerning the videotapes made of the colposcopy. He argues that, since the videotapes were destroyed, he was deprived of the opportunity to view them and to effectively challenge testimony concerning them.

In the argument section of his brief, Defendant claims that the State was given an “unfair advantage” during the trial because its experts (the Huffmans) were able to testify that the videotape depicted “injuries.” He argues that his expert’s opinion was devalued by the jury because Dr. Block did not view the tape. As such, Defendant states that the jury was unable to adequately assess whether the depictions of the videotape constituted “injuries” of sexual abuse or merely neutral “findings.” He claims this violated his “due process rights.”

Assuming arguendo that the Huffmans’ acts of destroying the videotapes can be considered subject to constitutional requirements, we note the following. The destruction of “potentially useful evidence” can constitute a violation of due process; however, the defendant must show that the state actor (usually the police or the prosecution) acted in bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004); State v. Burns, 112 S.W.3d 451, 455 (Mo.App.2003).

We find no due process violation here because Defendant has utterly failed to show that the destruction of the videotapes occurred as the result of bad faith. The undisputed evidence showed that Huffmans destroyed the tapes to protect the identity of Victim and to protect the confidentiality of the obvious private nature of the examination. This was done, in part, because the center was subject to break-in attempts to steal such videos. Defendant cannot show that the videotapes were destroyed in bad faith. “Failure to preserve potentially useful evidence does not constitute the denial of due process without a showing of bad faith.” Burns, 112 S.W.3d at 455[7]. Point denied.

The judgment of conviction and sentence is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . "A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” § 566.062.1. Deviate sexual intercourse includes "a sexual act involving the. penetration, however slight, of the male or female sex organ or the anus by a finger ... done for the purpose of arousing or gratifying the sexual desire of any person” or any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person. § 566.010(1).

      .Under Rule 30.20, "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” All rule references are to Supreme Court Rules (2005).

      . This was explained as a "video physical exam” with a "very magnified view of the female genitalia.”

      . Dr. Huffman and Nurse Huffman were husband and wife.

      . Victim also testified that Defendant touched her with a knife and that "[h]e shoved it [the knife] in my butt and my pee-pee.” Inexplicably, the knife "touching” was left unexplained and unexplored by either the State or the defense.

      . The last paragraph we have quoted from Defendant’s brief seems to imply that the "top of the list” comment was part of Nurse Huffman’s testimony; that Huffman made some "top of the list” remark which tended to quantify the believability of Victim’s testimony. This simply did not happen, that is to say, Nurse Huffman did not make a "top of the list” remark. Apparently, Defendant chose "top of the list” language as his characterization of the other remarks by Huffman about which Defendant complains.

      . Assuming, arguendo, we had exercised our discretion to review for plain error, Defendant's arguments would still fail. Nurse Huffman's testimony took up eighty pages of trial transcript and we are persuaded that her comments about which Defendant complains could have had virtually no effect on the jury. Moreover, to the extent that Nurse Huffman's testimony could be interpreted as commenting on Victim’s veracity, it is reasonable to infer she was simply saying she believed Victim's statements to her. When thus interpreted, such testimony was admissible. See State v. Tyra, 153 S.W.3d 341, 349 (Mo.App.2005); State v. Cone, 3 S.W.3d 833, 843 (Mo.App.1999).

      . At trial, this scale was described as "objective” and "sorts out physical and historical findings, and then gives us a level of certainly about abuse having happened." Essentially, the scale uses a number of factors, including physical findings, social history, and medical history, to place into a category a case of alleged abuse. There are three levels of categories indicating the degree of probability that abuse occurred.

      . Implicitly, Defendant argues that his complaint on appeal is different from that voiced in the objection at trial, i.e., a comment on Victim’s truthfulness versus a lack of foundation. We do not know if the foundational argument was put before the court off the record. Regardless, Defendant's argument on appeal focuses on the prejudicial nature of the testimony as one involving a comment on Victim’s credibility which is precisely the objection raised at trial. That certainly has been waived; thus, Defendant’s point is without merit. Moreover, even if we could review for plain error, we could make no determination as to the scientific foundation for the scale because no record was made tending to show whether the scale met the admissibility requirements.