author: EDWIN H. SMITH, Chief Judge.

text:
    John Kent FLAIZ, Respondent, v. DIRECTOR OF REVENUE FOR the STATE OF MISSOURI, Appellant.
    No. WD 64637.
    Missouri Court of Appeals, Western District.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.

      Jeffrey S. Eastman, Gladstone, MO, for respondent.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Don Willoh, Assistant Attorney General, Jefferson City, MO, for appellant.
    Before: HOWARD, P.J., EDWIN H. SMITH, C.J., and NEWTON, J.
   EDWIN H. SMITH, Chief Judge.

The Director of Revenue (Director) appeals from the judgment of the Circuit Court of Platte County setting aside the Director’s revocation of the driver’s license of respondent, John Flaiz, pursuant to § 577.041, for his refusal to submit to a Breathalyzer test, authorized by § 577.020.

In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent’s driver’s license because she made a -prima facie case for revocation, in accordance with § 577.041, which was not rebutted by the respondent.

We affirm.

Facts

At approximately 12:30 a.m. on March 22, 2004, Trooper John W. Dick, Jr., of the Missouri State Highway Patrol, was just finishing up a traffic stop near the 64th Street exit of Interstate 29 in Kansas City, Missouri, when he noticed a black Acura approaching from the south, with one headlight out. Trooper Dick pursued the Acura and eventually stopped it. At the time, it was being driven by the respondent. Trooper Dick’s vehicle was equipped with a video camera, which recorded the stop and arrest.

After stopping the respondent’s vehicle, Trooper Dick exited his vehicle and approached the driver’s side window of the Acura. He explained to the respondent that he had stopped him because of an inoperable headlight. After engaging the respondent in conversation, Trooper Dick noticed that his speech was slurred and that his eyes were bloodshot and watery. He also smelled an odor of alcohol emanating from the respondent’s vehicle. Trooper Dick asked the respondent for his driver’s license and proof of insurance. The respondent handed him his license and registration. The respondent continued to look for his proof of insurance, but was unable to locate it.

Trooper Dick requested that the respondent have a seat in his patrol vehicle. The respondent complied and sat in the front passenger seat, but did not close the door. Trooper Dick and the respondent continued to converse while sitting in the patrol vehicle. Trooper Dick asked the respondent why he was on the road at this time of night. The respondent explained that he had just driven from St. Louis. Trooper Dick asked him whether he had stopped anywhere along the way, and the respondent said, “No.” A few minutes later, the respondent mentioned that he had stopped to eat. When Trooper Dick confronted him with this apparent inconsistency in his story, the respondent stated that “he may have just driven through.” Trooper Dick asked him whether he had anything to drink that night, and he said, “No.” He then asked him if he would submit to a Breathalyzer test. The respondent refused “because it wasn’t fair to him.” Trooper Dick then requested him to submit to field sobriety tests, which the respondent refused. At that juncture, Trooper Dick informed him that he would be arrested if he continued to refuse to submit to field sobriety tests. The respondent continued to refuse, and he was arrested for driving while intoxicated, DWI.

Having arrested the respondent for DWI, Trooper Dick transported him to the Platte County Jail where he read him the implied consent advisory and again asked him to submit to a Breathalyzer test, which the respondent refused. The respondent was then given Revenue Form 4323, advising him that his driving privileges were being revoked for a one-year period for a Breathalyzer refusal.

Pursuant to § 577.041.3, the Director revoked the respondent’s driver’s license for his refusal to submit to the Breathalyzer test requested by Trooper Dick. Pursuant to § 577.041.4, the respondent appealed his revocation to the Circuit Court of Platte County. The appeal was heard by the Honorable Daniel Czamanske on August 19, 2004. At the hearing, the only witness to testify on behalf of the Director was Trooper Dick. Trooper Dick’s report was introduced into evidence. The respondent did not testify nor call any witnesses on his behalf. The only evidence he offered was the Patrol’s videotape of the incident, which was admitted without objection and played in open court. At the close of the evidence, the trial court took the matter under advisement. On August 23, 2004, the trial court, not finding all of the issues specified in § 577.041 to be in the affirmative, specifically, the issue of probable cause to believe that the respondent was DWI, entered judgment for the respondent, ordering the Director to reinstate his driver’s license.

This appeal follows.

Standard of Review

We must affirm the judgment of the trial court setting aside the revocation of the respondent’s driver’s license by the Director, in accordance with § 577.041, unless we find that there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). We will set aside a judgment on the basis that it is against the weight of the evidence only when there is a firm belief that the judgment is wrong. Wilson v. Dir. of Revenue, 35 S.W.3d 923, 926 (Mo.App.2001).

When the Director’s “evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.” Hinnah, 77 S.W.3d at 620. We cannot disregard the Director’s uncontro-verted evidence and presume that the trial judge found a lack of credibility in order to affirm the judgment. Hockman v. Dir. of Revenue, 103 S.W.3d 382, 386 (Mo.App.2003).

But, where evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the judge to resolve the factual issues, including determining the credibility of witnesses. So long as its determination is supported by substantial evidence, we will affirm, regardless whether we would have reached the same result.

Hampton v. Dir. of Revenue, 22 S.W.3d 217, 220 (Mo.App.2000).

In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge. Such deference is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court. Appellate courts view the evidence in the light most favorable to the trial court’s judgment, and we deem all facts to have been found in accordance with the result reached by the trial court. A trial court is accorded wide discretion even if there is evidence that would support a different result. In a driver’s license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness.

Long v. Dir. of Revenue, 65 S.W.3d 545, 548 (Mo.App.2001) (internal citations omitted).

I.

In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent’s driver’s license because she made a prima facie case for revocation, in accordance with § 577.041, which was not rebutted by the respondent. Specifically, she claims that the trial court’s reinstatement of the respondent’s driver’s license was not supported by substantial evidence and was against the weight of the evidence in that the respondent did not present any evidence controverting the evidence, on which her prima facie case for revocation was based.

Section 577.041.3 mandates that the Director revoke, for one year, the driver’s license of a person under arrest for DWI for refusing, when requested by the arresting officer, to submit to a chemical test, authorized by § 577.020. Pursuant to § 577.041.4, “[i]f a person’s license1 has been revoked because of the person’s refusal to submit to a chemical test, [as authorized by § 577.020], such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.”

In order to make a prima facie case for upholding a § 577.041 revocation for a refusal in a DWI case, the Director is required to show that: (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was DWI; and (3) the driver refused to submit to an authorized chemical test as requested. § 577.041.4; Hinnah, 77 S.W.3d at 620. If the court determines any of the three elements of the Director’s case for revocation not to be in the affirmative, it shall order the Director to reinstate the driver’s license. § 577.041.5; Hinnah, 77 S.W.3d at 620. “The director, thus, has the burden of proof at the hearing.” Hinnah, 77 S.W.3d at 620.

While the respondent did not contest at the § 577.041 hearing that he was arrested and refused to submit to the Breathalyzer test, as requested by the arresting officer, Trooper Dick, he did contest the fact that Trooper Dick had reasonable grounds to believe he was DWI. On appeal, the respondent does not contest the fact that the Director made a prima facie case for revocation. However, he contends that the evidence was sufficient for the trial court to find that the Director’s prima facie case was rebutted; specifically, that the evidence was sufficient for the trial court to find that Trooper Dick did not have reasonable grounds to believe the appellant was DWI. The Director claims that such a finding was not supported by substantial evidence and was against the weight of the evidence in that the respondent failed to controvert the evidence on which the Director’s prima facie case was based.

“Reasonable grounds to arrest a driver for DWI to support a revocation for refusal is virtually synonymous with probable cause to arrest a driver.” Roberts v. Wilson, 97 S.W.3d 487, 492 (Mo.App.2002); see also Hinnah, 77 S.W.3d at 620. “Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.” Hin-nah, 77 S.W.3d at 621. In determining whether there were reasonable grounds to arrest a driver for DWI, the trial court must evaluate the situation from the viewpoint of a cautious, trained, and prudent police officer at the time of the arrest. Roberts, 97 S.W.3d at 492. There is no precise test for determining whether reasonable grounds existed; rather, it is based on the particular facts and circumstances of the individual case. Hinnah, 77 S.W.3d at 621. “[W]hat is at issue in a refusal case is whether the officer had reasonable grounds to believe [d]river was intoxicated, not whether [he] was actually intoxicated.” McCarthy v. Dir. of Revenue, 120 S.W.3d 760, 763 (Mo.App.2003).

Here, at the § 577.041.4 hearing, the Director, in making a case for revocation of the respondent’s license for a refusal, relied solely on the testimony of Trooper Dick. In that regard, he testified, concerning the issue of probable cause to arrest the respondent for DWI, that there was a strong odor of alcohol emanating from both the respondent’s vehicle and his person. The odor of alcohol is one of the classic indicia of intoxication. Saladino v. Dir. of Revenue, 88 S.W.3d 64, 71 (Mo.App.2002). Trooper Dick also testified that the respondent’s eyes were “watery” and “bloodshot,” and his speech was slurred, which are sufficient indicators of intoxication and provide reasonable grounds for the officer to believe that the driver was DWI. Norris v. Dir. of Revenue, 156 S.W.3d 786, 788 (Mo.App.2005). He testified that when he asked the respondent for his driver’s license and proof of insurance, he gave him his driver’s license and registration. It is well settled that the failure to follow instructions can be a factor in establishing a reasonable belief that a driver is intoxicated. Roberts, 97 S.W.3d at 493. Trooper Dick testified, further, that the respondent made inconsistent statements regarding whether he had stopped on his way back from St. Louis. In addition, Trooper Dick observed that when the respondent entered the trooper’s vehicle, he did not close the door. Trooper Dick testified that in his experience, when a person does this, it usually means he is under the influence of alcohol. Finally, the respondent refused to submit to any field sobriety tests, which can also be used as evidence for a reasonable belief of intoxication. Edmisten v. Dir. of Revenue, 92 S.W.3d 270, 274 (Mo.App.2002). Thus, the testimony of Trooper Dick was sufficient to make a prima facie case for revocation for a refusal with respect to the issue of whether Trooper Dick had reasonable grounds to believe that the respondent was DWI.

The respondent did not testify or call any witnesses at the hearing. Rather, the only evidence he offered was the Highway Patrol’s videotape of his stop and arrest, shot from Trooper Dick’s patrol vehicle. The videotape was offered and admitted without objection, and was played in open court. The videotape shows first the respondent pulling his vehicle to the side of the road, after being stopped by Trooper Dick for having an “inoperable headlight.” It shows next Trooper Dick leaving his vehicle and approaching the driver’s side window of the respondent’s vehicle. Trooper Dick can be heard asking the respondent several questions; however, for the most part, the respondent’s answers to those questions are inaudible. The tape shows the respondent exiting his vehicle and walking back to Trooper Dick’s vehicle, after being asked to do so. The respondent’s face is shown on the tape for a brief moment. Although Trooper Dick and the respondent are not visible on the tape while seated in the trooper’s vehicle, due to the position of the camera, the conversation between the two is clearly audible. Trooper Dick questioned the respondent about his job and his itinerary that night. The tape also includes the auditory portion of the respondent’s refusal to submit to a Breathalyzer test, as requested by Trooper Dick, and being placed under arrest for DWI. The respondent contends that the videotape clearly demonstrates that he was not intoxicated, and, therefore, constituted substantial evidence that controverted the Director’s evidence of probable cause for Trooper Dick to arrest the respondent for DWI and was sufficient for the trial court to find that he did not have such probable cause in support of its judgment ordering his operator’s license reinstated.

As we note in our standard of review, supra, if the Director’s evidence is uncon-troverted, such that the “real issue is a legal one as to the legal effect of the evidence,” then we do not defer to the trial court’s judgment. Hinnah, 77 S.W.3d at 620. We cannot disregard the Director’s uncontroverted evidence and presume that the trial judge found a lack of credibility in order to affirm the judgment. Hockman, 103 S.W.3d at 386. From this, the Director contends that the videotape was not sufficient to controvert her evidence supporting a reasonable belief by Trooper Dick that the respondent was DWI, such that the trial court was bound to accept it and affirm the revocation of the respondent’s license.

In contending as she does, the Director is arguing, necessarily, that to constitute evidence sufficient to controvert her evidence of Trooper Dick’s reasonable belief that the respondent was DWI, sufficient, in turn, to allow the trial court’s reinstatement of the respondent’s driver’s license, the videotape had to expressly controvert the Director’s evidence of the underlying facts or “indicia” establishing such a belief, rather than merely controverting the issue of whether Trooper Dick had a reasonable belief that the respondent was DWI. In other words, she is arguing that the videotape was irrelevant to the trial court’s determination of whether Trooper Dick had a reasonable belief that the respondent was DWI in that it did not controvert the fact that the respondent refused to submit to requested field sobriety tests; his eyes were bloodshot and watery; his speech was slurred; there was an odor of an alcoholic beverage emanating from his vehicle and person, etc. We disagree.

The Director does not cite any authority for her argument that to controvert her evidence, supporting a probable cause finding for Trooper Dick to arrest the respondent for DWI, so as to require us to defer to the judgment of the trial court, the respondent had to introduce evidence controverting the facts on which she relied to show probable cause to arrest for DWI, and we can find none. In fact, the case law holds otherwise. In Hinnah, the Missouri Supreme Court was confronted with the same issue that confronts us here: whether the evidence was sufficient for the trial court to find, in reinstating the driver’s license, in accordance with § 577.041, that the arresting officer did not have probable cause to arrest the driver for DWI. 77 S.W.3d at 621.

In Hinnah, the Court acknowledged that the Director had introduced evidence, which if believed by the trial court, was sufficient to support a finding of reasonable grounds to believe the driver was DWI. Id. In that regard, the Court pointed to the arresting officer’s testimony that he found the driver “alone inside a truck with its engine running, parked alongside the interstate, that he had a strong odor of alcohol on his breath, had watery, glassy, bloodshot eyes, had difficulty maintaining his balance, and that he admitted to driving the vehicle, striking a concrete barrier and flattening the tire.” Id. The Court, however, found that there was evidence in the record that controverted the Director’s evidence of probable cause and supported the trial court’s finding that the arresting officer lacked probable cause to arrest the driver for DWI, stating:

The trial court had evidence to support a finding of probable cause, but was free as well to draw the conclusion that there was no probable cause. Either conclusion was sustainable under the record, depending upon the trial court’s assessment of the credibility of the officer’s testimony that Hinnah said he was driving or upon the court’s assessment of the evidence of probable cause as to intoxication.

Id. at 622. In finding that the record supported the conclusion reached by the trial court, the Court pointed to the admissions of the arresting officer on cross-examination that he did not see the driver in the driver’s seat; that he could not determine from the odor of alcohol the “number, recency, quantity or quality of that alcohol and that he could not determine whether [the driver] was intoxicated from it”; that the [driver’s] bloodshot eyes could not lead him to the conclusion that [he] was intoxicated; and, that the driver’s balancing himself with the truck door may have been caused by his having just woke up, and the inclement weather and questionable footing. Id. at 621. The Court also pointed to the testimony of the driver’s two witnesses, who testified that he was not driving. Id.

While there was evidence that controverted the Director’s evidence that the driver was driving the vehicle, there was no evidence to controvert the fact that there was an odor of alcohol on the driver’s breath; that the driver had bloodshot, watery eyes; or that he had to balance himself using the truck door. Rather, the Court, in finding that there was sufficient evidence for the trial court to conclude that the arresting officer did not have probable cause to arrest the respondent for DWI, relied on competing inferences from the same evidence relied upon by the Director to show probable cause to arrest for DWI. This approach was soundly condemned by then Chief Justice Limbaugh in his dissent, arguing that: “The points made on cross-examination are in the nature of mere inconsistencies that do not effectively rebut what the majority agrees is prima facie proof of reasonable grounds to believe that Hinnah was intoxicated.” Id. at 623. With respect to these “points,” he went on to say:

[T]he points made were 1) that the officer could not determine the ‘number, recency, quantity or quality’ of the alcohol he smelled on Hinnah’s breath, 2) that he could not determine solely from the odor of alcohol whether Hinnah was intoxicated, 3) that he could not determine solely from Hinnah’s bloodshot eyes whether Hinnah was intoxicated, 4) that Hinnah did not have slurred speech, and 5) that Hinnah’s instability in exiting the pick-up might have been due to the fact that he had just awakened and needed time to balance himself. None of these points controverts the evidence that Hinnah had alcohol on his breath and that his eyes were watei'y, glassy and bloodshot Although the officer conceded that neither the smell of alcohol nor the appearance of Hinnah’s eyes was alone sufficient to determine that Hinnah was intoxicated, those factors, when combined with the other circumstances surrounding the arrest — that there had been an accident and that Hinnah had fallen asleep with the engine running — were more than enough to establish reasonable grounds that Hinnah was intoxicated.

Id. (emphasis added).

It is crystal clear to us that Hinnah stands for the proposition that, in order to controvert the Director’s case for revocation for a refusal, pursuant to § 577.041, requiring us to defer to the trial court with respect to its conclusions and its resolution of factual issues, including credibility determinations, the driver need only present evidence that is inconsistent with a reasonable belief of the arresting officer that the driver was DWI. There does not have to be evidence controverting each and every indicia of intoxication on which the Director has introduced evidence in support of a finding of probable cause. That being the case, the issue then for us becomes whether the videotape of the respondent’s stop and arrest constituted evidence that was inconsistent with a reasonable belief of Trooper Dick that the respondent was DWI.

As noted supra, the issue in a refusal case is not whether the driver was actually intoxicated, but whether he had reasonable grounds to believe that he was. McCar thy, 120 S.W.3d at 763. Thus, to the extent that the videotape showed that the respondent was not actually impaired or intoxicated, it is largely irrelevant as to the issue we must decide. Hinnah, 77 S.W.3d at 621; Cain v. Dir. of Revenue, 130 S.W.3d 1, 7 (Mo.App.2004). However, it is relevant in deciding whether the record, here, was sufficient to support the trial court’s finding that Trooper Dick did not have reasonable grounds to believe that the respondent was DWI, which would support reinstatement of his license. Cain, 130 S.W.3d at 7.

The videotape shows that the respondent was able to walk quickly and steadily to the Trooper’s vehicle. The tape shows that the respondent was able to answer questions from Trooper Dick and carry on a coherent conversation with him. Specifically, the tape shows the respondent coherently answering questions about his whereabouts earlier in the evening, his job selling medical products, and the amount of time he spends on the road because of his job. In addition, through the admission of Trooper Dick, the trial court was informed that the respondent was driving carefully and under the speed limit. All these facts could lead the trial court to believe that Trooper Dick did not have reasonable grounds for believing that the respondent was DWI. Thus, it appears that there was evidence in the record sufficient to controvert the issue of whether Trooper Dick had reasonable grounds to believe that he was DWI.

Since the Director’s evidence of probable cause to arrest for DWI was controverted and there was no request for findings of fact and conclusions of law, in accordance with Rule 73.01(c); and none were made, we must consider all the relevant factual issues to have been found by the trial court in accordance with the result reached. Rule 73.01(c); Hinnah, 77 S.W.3d at 621. “Accordingly, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prevailing party[, the respondent,] and must give due regard to the trial court’s credibility determinations.” Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.2003) (citations omitted).

Viewing the evidence in a light most favorable to the respondent and considering the facts to have been found by the trial court in accordance with its judgment, we conclude that the trial court could have reasonably determined, from the videotape, that the respondent was not slurring his words. Likewise, we can conclude that the trial court did not interpret the failure of the respondent to give the trooper proof of insurance, as requested, rather than his registration, as being indicative of DWI in that the tape has him apologizing for not having his insurance card with him. In other words, it was not a matter of failing to follow instructions, but simply a matter of not having the requested document. Further, we can infer that the trial court found that the respondent’s bloodshot, watery eyes were not caused from intoxication, but being tired, having driven all night. As to the apparent inconsistent statements of the respondent concerning whether he stopped during his trip to eat, the trial court may have interpreted that as simply a slip of the tongue. These findings, coupled with what the trial court learned from the videotape, were sufficient for it to find that the trooper did not have reasonable grounds to believe the respondent was DWI.

Based on the foregoing analysis, it is clear that the trial court had evidence to support a finding that the trooper had reasonable grounds to believe that the respondent was DWI or a contrary finding, which was sufficient to rebut the Director’s prim a facie case for revocation of the respondent’s driver’s license for a Breathalyzer refusal. Because the trial court was free to find either way based on the record, depending on the trial court’s assessment of the credibility of Trooper Dick’s testimony, we cannot find that the trial court’s judgment was not supported by substantial evidence or was against the weight of the evidence.

Conclusion

The judgment of the trial court, setting aside the Director’s revocation of the respondent’s driver’s license and ordering its reinstatement, is affirmed.

HOWARD, P.J., and NEWTON, J., concur.

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

      . All rule references are to the Missouri Rules of Civil Procedure, 2005, unless otherwise indicated.


source: Caselaw Access Project

author: BOOKER T. SHAW, Judge.

license: Public Domain

text:
    Antoine BANKHEAD, Respondent, v. STATE of Missouri, Appellant.
    No. ED 84879.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 10, 2006.

      Leslie E. McNamara, Jefferson City, MO, for appellant.
    Craig Allan Johnston, Columbia, MO, for respondent.
   BOOKER T. SHAW, Judge.

State of Missouri (“State”) appeals from the motion court’s judgment granting Antoine Bankhead’s (“Bankhead”) Rule 29.15 post-conviction relief motion awarding him a new trial. Bankhead was convicted after a jury trial of second degree murder, Section 565.021, RSMo 2000, first degree robbery, Section 569.020, and two counts of armed criminal action, Section 571.015. Bankhead was sentenced to forty years’ imprisonment. The motion court granted Bankhead a new trial after finding State violated Bankhead’s due process rights by presenting inconsistent prosecutorial theories during his trial and the prosecution of two co-defendants.

Statement of Facts and Procedural History

On July 30, 2000, Demetrius Pascal (“Victim”) was leaving a Schnucks grocery store (“Schnucks”) parking lot around 10:00 p.m. He stopped his car in the parking lot to speak to two women. Two men approached Victim in his car to rob him. During the robbery, Victim exited his car and a scuffle ensued. One of the men, Martez Shadwick (“Shadwick”), shot Victim. Victim then ran toward the front of Schnucks. Shadwick and the other man with him entered Victim’s car and drove out of the parking lot. Shortly thereafter, a black SUV on Schnucks parking lot sped away and left through another parking lot exit. These two vehicles were then seen speeding away from the scene side-by-side. Victim subsequently died.

The next day, Alvin Washington (‘Washington”) was found driving a 2000 Nissan Pathfinder (“Pathfinder”) that was stolen from Trisha Rush (“Rush”). The Pathfinder matched the description of the SUV that left the scene shortly after Shadwick and the other man sped away in Victim’s car. Police officers stopped the Pathfinder and found a gun, later determined to be the murder weapon, and a hat that fit the description of that worn by the two men in the Pathfinder. The officers also found Victim’s car, which had been stripped and burned. Two weeks later, the officers arrested I.V. Simms (“Simms”) and Antoine Bankhead (“Bankhead”).

Three men, Shadwick, Washington and Bankhead were charged with the robbery and murder of Victim, along with related armed criminal action counts, before three different judges. All three men were prosecuted by the same Assistant Circuit Attorney (“Prosecutor”). Simms was not charged with a crime relating to Victim.

Washington’s Guilty Plea

On September 21, 2001, before Judge Jimmie M. Edwards, Washington pled guilty to murder in the second degree, Section 565.021, robbery in the first degree, Section 569.020, and two counts of armed criminal action, Section 571.015. At Washington’s guilty plea hearing, the Prosecutor stated the following:

If this matter had went to trial, the State would show beyond a reasonable doubt that ... this defendant and others, specifically Martez Shadwiek, Antoine Bankhead and a third person, I.V. Simms, went onto the parking lot at the Schnucks store located at that location
... and while at that location, this defendant [Washington] and Martez Shadwiek decided to take it upon themselves to rob one Demetrius Paschall [sic]. They approached Mr. Paschall [sic] and, after they approached Mr. Paschall [sic] and announced a robbery and took property from him, this defendant [Washington], acting with Martez Shadwiek, Martez Shadwiek pulled out a gun and shot Mr. Paschall [sic], Mr. Paschall [sic] died of his injuries. This defendant left the scene with Mr. Shad-wick in the victim’s car. The other two people with him, I.V. Simms and Antoine Bankhead, also left the scene.

(Emphasis added). When asked by Judge Edwards, “Did that happen, Mr. Washington?,” Washington replied, “Yes, sir.” Washington admitted that he drove Victim’s car away from the scene after the robbery. He also admitted that he was in possession of the murder weapon, a .380 automatic handgun. He identified Shad-wick as the one who “pulled the trigger.” Washington was sentenced to four concurrent terms of twenty-five years’ imprisonment for these crimes.

Shadwick’s Trial

On June 20, 2002, Shadwiek was convicted of first degree murder, Section 565.020, first degree robbery, Section 569.020, and two counts of armed criminal action, Section 571.015, after a bench trial by Judge Joan L. Moriarty. Shadwiek was sentenced to two concurrent terms of life imprisonment and two concurrent terms of thirty years’ imprisonment. During opening statement, the Prosecutor stated the following:

And as [Victim] conversed with Ms. Brown and Ms. Perkins about this, that and the other, this Defendant [Shad-wick] happened to be on that parking lot also, along with Alvin Washington, I.V. Simms and Antoine Bankhead, and they were on that parking lot having gotten there driving Trisha Patton’s [stolen] 2000 Nissan Pathfinder.
And as the victim was in his car talking to these two young ladies, this Defendant [Shadwiek] and Alvin Washington approached his car, and they put on ball hats and they put on gold or yellow bandanas to help cover their face, and they approached from two different areas the victim’s car. And the girls saw this coming up here, so they pulled away in their car to get out of danger.
And the Defendant and Mr. Washington approached [Victim], and they were armed with weapons. And we believe that Martez Shadwiek was the one who had the gun.
And there were other people on the car lot on that particular night. And they approached the Defendant [sic], they demanded of him certain personal property, and when he refused to give them that property and attempted to run away, they shot him.
I believe two shots rang out. And as [Victim] ran away from them, he ran towards the front door of the Schnuck’s [sic] store. They were still in business and operating on that particular evening. And he ran from his car away from the Defendants, they shot at him. He got to the door, basically to the door of the Schnuck’s [sic] store where he collapsed. He had a bullet wound to Ms chest, and he died of his injuries.
The Defendant and Mr. Washington then got into [Victim’s] car, the Lincoln Continental, and drove it off the lot. And they were followed off of that lot by two other individuals, I.V. Simms and “Antuwan” [sic] Bankhead, still driving the stolen Pathfinder.
Not only were there witnesses on the particular parking lot that saw this particular event happen, and they were at various and sundry different angles and will be able to testify to what they saw, but five of those individuals identified the Defendant as being the person who drove the victim’s car off the lot, and several of them mil identify Mr. Washington as being the passenger. And they will also identify the Defendant as being the shooter of [Victim].

(Emphasis added).

At Shadwick’s trial, Rush testified that on July 23, 2000, her Pathfinder was stolen while she was at a gas station. Rush saw two men drive away in her Pathfinder. She identified Shadwick as the driver of her Pathfinder and Washington as the passenger. Two other African-American men had been with Shadwick and Washington, but they drove off in another vehicle.

Six eyewitnesses testified at Shadwick’s trial. Tonya Otto (“Otto”) and Jamaica Frazier (“Frazier”) witnessed the robbery and murder of Victim. Otto testified that Shadwick was the accomplice who drove away in Victim’s car. The Prosecutor did not ask her to specifically identify the photograph of the other suspect with Shad-wick. On cross-examination, Otto identified Washington as the other suspect in Victim’s car. Frazier was unable to make any identification of the suspects.

Ella Bingham (“Bingham”) identified Shadwick and Washington as the two men in Victim’s car. She was unable, however, to make a courtroom identification of Shadwick. Joseph Alexander (“Alexander”) testified that Shadwick and Washington were the two suspects involved in the crimes against Victim.

Norvette Brown (“Brown”) and Aisha Perkins (“Perkins”) were in a parked vehicle on Schnucks’ parking lot when the crimes occurred. Brown identified Shad-wick as the suspect who shot Victim. She was not asked by the Prosecutor to identify the other suspect. Perkins, too, identified Shadwick as one of the suspects, but was not asked by the Prosecutor to make an identification of the other suspect. On cross-examination, Perkins testified she was not able to make an identification of anyone else.

During closing argument, the Prosecutor made the following statement:

What did Joseph Alexander say? Joseph Alexander said I saw the flash of a gun. These two guys were in the car, same identification: I don’t know who the driver was, who the passenger was. This guy [Shadwick] and Washington were the guys. What did he say about the shooting? “I don’t know which one did the shooting, but there were two guys there, and it was this guy [Shad-wick] and Washington.”

(Emphasis added). Later the Prosecutor added, “Yeah, Alvin Washington got caught in the Pathfinder, but who is Alvin Washington? The guy that was with [Shadwick] when he did the shooting.” (Emphasis added).

Bankhead’s Trial

In July of 2002, before Judge Joan M. Burger, Bankhead proceeded to trial by jury on the robbery and murder charges. The following evidence was presented by the State at Bankhead’s trial. Four of the eyewitnesses who testified at Shadwick’s trial also testified at Bankhead’s trial: Otto, Perkins, Frazier, and Brown. Notably, neither Bingham nor Alexander testified at Bankhead’s trial.

At Bankhead’s trial, Otto identified Shadwick as the driver of Victim’s car and Bankhead as the passenger of the car. At Shadwick’s trial, the Prosecutor did not ask her to identify anyone other than Shadwick. On cross-examination at Shad-wick’s trial, however, Otto identified Washington as the passenger of Victim’s car.

Perkins testified at Bankhead’s trial that the two men involved in the crimes against Victim were Shadwick and Bankhead. At Shadwick’s trial, however, Perkins only identified Shadwick as one of the suspects, but said she was not able to make an identification of anyone else. Frazier was again unable to make any identification of the suspects.

Brown identified Shadwick as the suspect who shot Victim in Schnucks’ parking lot and identified Bankhead as the other suspect with him. At Shadwick’s trial, she also identified Shadwick as the man who shot Victim, but she was not asked by the Prosecutor to identify the other suspect. Although on cross-examination at Shad-wick’s trial Brown testified she also made an identification of the other suspect when she reviewed lineup photographs, she was not asked to give that man’s identity.

At the close of the evidence, the Prosecutor stated to the jury in pertinent part:

Now, you heard uncontradicted evidence from the witness stand that there were two people that went to Demetrius Paschal [sic] on that parking lot, uncon-tradicted evidence. Uncontradicted evidence as to who those two people were, Martez Shadwick and the defendant [Bankhead]. Absolutely nothing that you heard in this courtroom would contradict that these are the two people that approached Demetrius Paschal [sic] after he went onto the Schnucks’ parking lot and started a conversation with Norvette Brown and Aisha Perkins. In fact, you heard from those two particular people, and those two particular people on August the 1st, two days later, identified the defendant [Bankhead] as one of those two people. Didn’t just say he was one of them. Here’s the other one. Martez Shadwick and the defendant [Bankhead]. Absolutely there can be no doubt these are the people they identified....

(Emphasis added). Later, the Prosecutor added:

That is the truth, ladies and gentlemen. The truth is [Bankhead] was the second guy, not that he was on the parking lot. He was the second guy. He was one of the two guys that drove away in the victim’s car.... There can he no doubt from these witnesses [Bank-head] was the second guy with Martez Shadwick.

(Emphasis added).

On July 3, 2002, Bankhead was convicted of second degree murder, Section 565.021, first degree robbery, Section 569.020, and two counts of armed criminal action, Section 571.015, Bankhead was sentenced to a term of thirty years’ imprisonment for first degree robbery and a consecutive term of ten years’ imprisonment for armed criminal action. He was also sentenced to a concurrent term of ten years’ imprisonment for second degree murder and a consecutive term of ten years’ imprisonment for armed criminal action. This Court affirmed Bankhead’s convictions in State v. Bankhead, 114 S.W.3d 432 (Mo.App. E.D.2003). After his convictions were affirmed by this Court, Bankhead filed an amended Rule 29.15 motion for post-conviction relief. The motion court granted Bankhead a new trial based upon his claim that State violated his due process rights by presenting contradictory prosecutorial theories during his trial and the prosecution of two co-defendants. State appeals.

Analysis

In its only point on appeal, the State argues the motion court erred in finding it violated due process of law by presenting inconsistent prosecutorial theories during Bankhead’s trial and the prosecution of two co-defendants because the State’s core theory was that Shadwick was the principal actor who shot Victim during the robbery, and the State consistently argued that Bankhead and Washington were involved with Shadwick as accomplices. We disagree.

Our review of a motion court’s Rule 29.15 proceeding is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 29.15(k). Findings of fact and conclusions of law are clearly erroneous only if, after review of the entire record, the court is left with a definite and firm impression that a mistake has been made. Lyons v. State, 39 S.W.3d 32, 36 (Mo. banc 2001), cert, denied, 534 U.S. 976, 122 S.Ct. 402, 151 L.Ed.2d 305 (2001).

The State’s fundamental interest in criminal prosecutions is “not that it shall win a case, but that justice shall be done.” Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir.2000), cert, denied, 531 U.S. 985, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). “Although the prosecutor must prosecute with earnestness and vigor and 'may strike hard blows, he is not at liberty to strike foul ones.’ ” Id. “[Our criminal] system is poorly served when a prosecutor, the [S]tate’s own instrument of justice, stacks the deck in his favor. The State’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth.” Id. at 1051.

While prosecutors are not required to present precisely the same evidence and theories in trial for different defendants involved in the same crimes, the use of theories that are factually contradictory to secure convictions against two or more defendants in prosecutions for the same offenses arising out of the same event violates the principles of due process. Id. at 1052; State v. Carter, 71 S.W.3d 267, 271-72 (Mo.App. S.D.2002) (“ ‘the use of inherently factually contradictory theories [by the prosecutor] violates the principles of due process.’ ”) (quoting Groose, 205 F.3d at 1052); See In re Sakarias, 35 Cal.4th 140, 25 Cal.Rptr.3d 265, 106 P.3d 931, 947 (2005), petition for cert, filed, (U.S. June 30, 2005) (No. 05-5114) (explaining “the prosecutor’s unjustified use of inconsistent and irreconcilable factual theories to convict two people of a crime only one could have committed ... violates due process because in those circumstances the state has necessarily convicted or sentenced a person on a false factual basis.”)

We find the Prosecutor’s conduct in this case similar to the conduct of the prosecutor in the Groose case. In Groose, the Eighth Circuit Court of Appeals granted a writ of habeas corpus because the prosecutor’s use of inconsistent theories to convict two defendants of murdering the same person violated the defendant Jon Keith Smith’s (“Smith”) due process rights. Groose, 205 F.3d at 1047. The same prosecutor prosecuted Smith and Michael Cunningham (“Cunningham”) for murder. Id. at 1050. A state’s witness, Anthony Lytle (“Lytle”) had given two contradictory statements to police, one on November 30, 1983, and the other on December 2, 1983. During Smith’s trial, the prosecutor asserted that Lytle’s statement to the police on December 2, 1983 was the truth. Id. Later, during Cunningham’s trial, the prosecutor argued that Lytle’s November 30, 1983 statement was the truth and did not introduce evidence of Lytle’s December 2, 1983 statement to the police. In other words, the prosecutor selectively chose to use Lytle’s December 2, 1983 statement to convict Smith and then subsequently at Cunningham’s trial, selectively chose to use Lytle’s contradictory November 30,1983 statement to convict Cunningham of the same crime. Id. at 1051. “In short, what the State claimed to be true in Smith’s case it rejected in Cunningham’s case, and vice versa.” Id. at 1050. Lytle’s testimony at these trials was the only evidence of the murders that took place and constituted the sole basis for Smith and Cunningham’s two different convictions on two contradictory theories. Id. at 1051.

On appeal, Smith argued the prosecutor’s manipulation of the evidence presented at trial violated his due process rights and caused his trial to be fundamentally unfaiiv Id. The Eighth Circuit agreed with Smith and held that the State’s use of factually contradictory theories in his case constituted error that “fatally infected Smith’s conviction.” Id. Specifically, the Court held that “the State’s zeal to obtain multiple murder convictions on diametrically opposed testimony renders Smith’s conviction infirm.” Id. at 1052.

Here, similar to Groose, the Prosecutor selectively presented contradictory evidence and arguments in three different cases depending upon which defendant was before the trial court. The only consistent theory argued by the Prosecutor in all three cases was that Shadwick was Victim’s shooter. It was the identity of the accomplice who accompanied Shadwick that varied, depending upon which defendant was being prosecuted.

In Washington’s guilty plea, Washington admitted to being the accomplice and the Prosecutor told the trial court that Washington was the person who, along with Shadwick, robbed and killed Victim.

In Shadwick’s trial, the Prosecutor told the jury in opening statement that it was Washington who approached Victim with Shadwick. Consistent with that theory, the Prosecutor questioned two witnesses, Bingham and Alexander, regarding the identity of Shadwick and Washington as the two men involved in the crimes. Three other eyewitnesses, Brown, Perkins, and Otto, identified Shadwick but the Prosecutor did not question them about the identity of the accomplice.

Less than two weeks after Shadwick’s trial, Bankhead was tried by the Prosecutor before a jury for Victim’s robbery and murder. At Bankhead’s trial, however, the Prosecutor presented evidence and argued that the two men who robbed and killed Victim were Shadwick and Bank-head. In Bankhead’s trial, the Prosecutor questioned Brown, Perkins, and Otto regarding the identity of Shadwick’s accom plice, and they identified Bankhead. The Prosecutor did not call as witnesses either Bingham or Alexander, who testified at Shadwick’s trial that Washington was his accomplice.

In conclusion, the same Prosecutor used two contradictory theories to obtain convictions against three individuals before three trial judges. The State’s evidence proved the complicity of only two individuals in these crimes, however, three were charged and convicted. Based upon this evidence, we agree with the motion court’s granting of Bankhead’s Rule 29.15 motion, finding “[t]he [S]tate’s use of inconsistent prosecutorial theories violated [Bank-head’s] due process rights in a way that rendered his conviction fundamentally unfair.” Following the holding of Groose, we hold that while the Prosecutor was not required to present the same evidence and theories in pursuing the convictions of Shadwick, Washington and Bankhead, the use of theories that were factually contradictory to secure the convictions in this case for the same robbery and murder violated the principles of due process. See Groose, 205 F.3d at 1052. Point denied.

AFFIRMED.

GLENN A. NORTON., C.J., and LAWRENCE E. MOONEY, J., Concur.

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

      . Bankhead cross-appeals and argues the motion court erred in denying his claims for ineffective assistance of trial counsel because his counsel failed to object to or present certain evidence at trial. Because we affirm the motion court's judgment, we need not address Bankhead’s cross-appeal requesting the same relief.

      .At the time of the crimes, Rush was not yet married and her name was Trisha Patton.

      . There appears to be some discrepancy in the testimony of the witnesses as to which suspect was the "darker-skinned” suspect and which suspect was the "lighter-skinned" one. Regardless of this discrepancy, however, the testimony elicited by the Prosecutor at Shad-wick’s trial was that the two suspects involved in these crimes against Victim were Shadwick and Washington.

      . Again, it appears a discrepancy exists in the testimony of the witnesses as to which suspect was the "darker-skinned” suspect and which suspect was the "lighter-skinned” one. Regardless of this discrepancy, however, the testimony elicited by the Prosecutor at Bank-head’s trial was that the two suspects involved in these crimes against Victim were Shadwick and Bankhead.


author: KENNETH W. SHRUM, Judge.

text:
    John William ETHETTON, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
    No. 26614.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 10, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., and Cheryl Caponegro Nield, Office of the Attorney General, Jefferson City, for Appellant.
    No Brief filed for Respondent.
   KENNETH W. SHRUM, Judge.

Citing part of Missouri’s Implied Consent Law, specifically section 577.041.3, Missouri’s Director of Revenue (“Director”) revoked the license of John William Ethetton (“Ethetton”) to operate a motor vehicle. Director based the revocation on Ethetton’s refusal to submit to a chemical test of his breath pursuant to section 577.020.1, RSMo Cum.Supp.2001.

Ethetton petitioned the circuit court for review of Director’s decision, per section 577.041.4. After an evidentiary hearing, the court entered a judgment that set aside the revocation and ordered Ethet-ton’s license reinstated. Director appeals. We reverse and remand.

The parties submitted the case to the judge by using Director’s records. Included was a written report of a motor vehicle accident prepared by a highway patrolman (“Mitchell”) and an alcohol influence report (“AIR”) filed by Mitchell. Ethetton presented no evidence at trial. Evidence from Mitchell’s reports includes the following.

On May 9, 2003, at 2:48 a.m., Mitchell was sent to investigate a motor vehicle accident where the driver had left the scene. He got to the accident scene at 3:11 a.m. There, he learned it was a single vehicle accident involving a pick-up truck. He ultimately learned the truck was owned by Ethetton.

From the physical evidence, Mitchell concluded the truck crossed the highway centerline as it rounded a curve. It then ran off the left side of the highway, struck a guardrail, returned to the right side of the road, and struck a guardrail there.

Earlier, as Mitchell headed to the accident, he overheard a radio message relating to the accident. Specifically, a county dispatcher stated a. towing company employee had called to report he was going to tow the subject truck and the person who requested the tow was “at the Table Rock Inn, Room 16.”

Armed with this information, Taney County deputies went to the motel, found Ethetton, and took him to the accident scene. Once Ethetton arrived, Mitchell asked him what had happened. Ethetton answered: “Driving along an animal ran out. I dodged it hit the guardrail, went over to the other side hit it and went up on it.”

As Mitchell talked with Ethetton, he noticed Ethetton smelled strongly of “intoxicants,” that his eyes were “watery, bloodshot and glassy,” and he “almost fell over several times.” Mitchell’s request of Ethetton that he do field sobriety tests was refused. At 3:25 a.m. Mitchell arrested Ethetton, read him his Miranda rights, and took him to the Taney County sheriffs office.. Once there, Mitchell.again gave Ethetton his Miranda rights. Moreover, he read to Ethetton the implied consent form before asking him to take the breathalyzer test. However, Ethetton refused to take the test.

When Director received this information, she revoked Ethetton’s driver’s license. Ethetton appealed from that decision and the judge ordered Ethetton’s license reinstated. Director’s appeal to this court followed.

There are three requirements that must be met before a trial court can uphold Director’s decision to revoke a person’s driving privileges based on section 577.041: Director must show (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) the driver refused to submit to a chemical test. Jarrell v. Director of Revenue, 41 S.W.3d 42, 43[1] (Mo.App.2001); § 577.041.4. If the trial court finds that one of the three requirements has not been met, then the court must order the director to reinstate a driver’s privileges. Id. at 43[2]; § 577.041.5.

The trial court here found Director presented sufficient evidence to carry her burden as to arrest and refusal, but failed to meet her burden of showing Mitchell had reasonable grounds to believe Ethetton had been driving while intoxicated. The court explained as follows:

“[T]he record reflects that no officer or any other witness saw [Ethetton] driving the motor vehicle nor did any witness comment on [Ethetton’s] condition immediately following the accident. The Trooper’s first encounter with [Ethet-ton] was ... approximately 45 minutes to one hour after the accident and there is no evidence on the record indicating [Ethetton’s] condition at the time of the accident was anything but normal. The evidence only demonstrates that [Ethet-ton] appeared to be intoxicated one hour after the accident.... The Court finds that the evidence demonstrates that the Trooper did not have reasonable grounds to believe that [Ethetton] was in an intoxicated condition while driving at the time of the accident and therefore the Director failed to present a prima facie case and [Ethetton] was not required to present rebuttal evidence.”

Director’s only point relied on urges reversal of the judgment reinstating Ethetton’s driving privileges. She argues that despite the court’s ruling to the contrary, substantial uncontroverted evidence in the record shows Mitchell had reasonable grounds to believe Ethetton was driving while intoxicated when the accident occurred. In support, Director points to evidence that (1) Ethetton left the accident site; (2) Mitchell learned Ethetton went to a motel following the accident; (3) Mitchell learned Ethetton called a towing company to have his truck moved; (4) Ethetton admitted to Mitchell he was driving when the accident happened; (5) when Ethetton was brought to the accident site, he smelled strongly of “intoxicants,” his eyes were “watery, bloodshot and glassy,” he “almost fell over several times;” and (6) Ethetton refused to perform field sobriety tests.

Appellate review of judgments relating to revocation of driving privileges for failure to take a chemical test is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See, e.g., Berry v. Director of Revenue, 885 S.W.2d 326, 328 (Mo.banc 1994); Jarrell, 41 S.W.3d at 46. Consequently, we review to determine if there was substantial evidence to support the trial court’s judgment, whether the judgment was against the weight of the evidence, and whether the judgment erroneously declared the law or erroneously applied the law. Calicotte v. Director of Revenue, 20 S.W.3d 588, 591 (Mo.App.2000).

When determining sufficiency of evidence pursuant to the Murphy v. Carron standard, appellate courts accept as true the evidence and inferences favorable to the trial court’s judgment, disregarding all contrary evidence. Jarrell, 41 S.W.3d at 46[8]. However, “[i]f the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 620[8] (Mo.banc 2002).

The salient issue here is whether Mitchell had reasonable grounds (as contemplated by section 577.041) to believe Ethetton drove a motor vehicle in an intoxicated condition during the early morning of May 9, 2003. Missouri courts treat the “reasonable grounds” requirement in section 577.041 as being virtually synonymous with probable cause to arrest. Id. at 620[3]. Thus, in Hinnah the director revoked a driver’s license because of his noncompliance with Missouri’s implied consent law, yet the court used “probable cause” principles to describe the “reasonable grounds” standard of section 557.041, saying:

“ ‘Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.’ Whether there is probable cause to arrest depends on the information in the officer’s possession prior to the arrest. There is no precise test for determining whether probable cause exists; rather, it is based on the particular facts and circumstances of the individual case.”

Id. at 621[9 — 11] (citations omitted).

Just as “[i]t is not necessary for an officer to actually observe a person driving to have probable cause to arrest the person for driving while intoxicated,” McCabe v. Director of Revenue, 7 S.W.3d 12, 14[5] (Mo.App.1999), it is equally true that a “reasonable grounds” finding in a section 577.041 case is not precluded solely because the reporting officer never saw the revoked person drive a motor vehicle in an intoxicated condition. Swanberg v. Director of Revenue, 122 S.W.3d 87, 90-91 (Mo.App.2003). As stated in Howard v. McNeill, 716 S.W.2d 912 (Mo.App.1986), “[i]t is not necessary that the arresting officer possess all of the information concerning the offense and the arrestee’s participation in it, in order to form a belief amounting to probable cause.” Id. at 915[2]. All that is required is that an officer be “possessed of facts which would justify a person of reasonable caution to form a belief that an offense has been committed and that the person to be arrested committed it.” Id. at 915[1],

Here, the uncontroverted record shows that Ethetton wrecked his truck while driving it at approximately 2:16 a.m. in a rural area of Taney County; that the accident happened as Ethetton drove into a curve, crossed the centerline and the left lane of the highway, struck a guardrail on the wrong side of the road, and then returned back across the highway where the truck struck the guardrail on the right side of the roadway. Both the truck and guardrail sustained damage, yet Ethetton never contacted any law enforcement official. Instead, he went to a motel. There he called a towing company to have his truck taken from the accident scene. When Ethetton was found and returned to the scene (approximately one hour after the accident), Mitchell detected a strong order of alcohol about him and saw other indicia of intoxication as earlier described. When Mitchell asked Ethetton to perform field sobriety tests, he refused. Further, the record is devoid of any showing that Mitchell had any knowledge that Ethetton consumed any alcohol after the accident. See Swanberg, 122 S.W.3d at 91; McNeill, 716 S.W.2d at 914-15.

These are uncontroverted facts that we must consider as part of our review. Our standard of review simply does not permit the disregard of any uncontroverted evidence that supports Director’s claim that all elements of the revocation case were proven. Swanberg, 122 S.W.3d at 91[9]. Moreover, we must constantly bear in mind that the dispositive issue is not whether Ethetton actually drove a motor vehicle while in an intoxicated condition, but whether Mitchell had reasonable grounds to believe Ethetton had done so. Hinnah, 77 S.W.3d at 622.

With the foregoing in mind and looking at the uncontroverted facts from the perspective of a prudent, cautious, and trained law enforcement officer, we find that Mitchell’s observations of Ethetton and the information he had about the accident were sufficient to establish reasonable grounds to believe that Ethetton was driving his vehicle in an intoxicated condition at the time of the accident. See Swanberg, 122 S.W.3d at 91; McNeill, 716 S.W.2d at 915.

The hearing court’s finding that no reasonable grounds existed for Mitchell to conclude Ethetton had driven while intoxicated is against the weight of the evidence and is not supported by substantial evidence. See Swanberg, 122 S.W.3d at 91. The trial court erred when it ordered Eth-etton’s license reinstated. Point granted.

The judgment is reversed and the cause remanded for a new trial.

GARRISON and BARNEY, JJ„ Concur.

      . All statutory references are to RSMo Cum. Supp.2002, unless otherwise indicated.

      . In McNeill and Swanberg, the respective arrestees left an accident scene before the arresting officer arrived. In each case the officer first saw the arrestees approximately an hour after their respective motor vehicle accidents. Unlike this case, in McNeill and Swanberg evidence was presented to each hearing court about post-accident drinking by the arrestees, although that information was not given the officers before the respective arrests. In both cases, the hearing courts found the officers lacked reasonable grounds for reporting the arrestees had driven motor vehicles while intoxicated. On appeal, those decisions were reversed. We have relied heavily on McNeill and Swanberg because the facts are similar, yet were less favorable to finding "reasonable grounds” than are the facts here. This follows because of the post-accident drinking evidence in McNeill and Swanberg that is not in this case.

      . We have not ignored Pontius v. Director of Revenue, 153 S.W.3d 1 (Mo.App.2004), an eastern district case that arguably reached a different result on similar facts. Although Pontius appears to conflict with McNeill (also an eastern district opinion), the Pontius opinion does not discuss McNeill. McFall v. Director, Dept, of Revenue, 162 S.W.3d 526, 533-34 n. 8 (Mo.App.2005). To the extent, if any, that Pontius cannot be distinguished factually from this case, note 2 explains why we rely heavily on McNeill and Swanberg and not Pontius.


author: PER CURIAM.

text:
    In the Interest of D.D.D., Appellant, v. JUVENILE OFFICER, Respondent.
    No. WD 64680.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Curtis G. Hanrahan, Jefferson City, MO, for appellant.
    Renee L. Godbee, Jefferson City, MO, for respondent.
    Before: SMITH, C.J., and LOWENSTEIN and HOWARD, JJ.
   Order

PER CURIAM.

D.D.D. appeals the judgment of disposition of the Juvenile Division of the Circuit Court of Cole County, in which he was adjudicated as having committed the class A misdemeanor of stealing, in violation of § 570.030. Pursuant to § 211.181.3, the appellant was made a ward of the court and placed in the custody of his mother, and was placed on probation and ordered to complete 20 hours of community service.

In his sole point on appeal, the appellant claims that the juvenile court erred in finding him guilty of stealing, in violation of § 570.030, because the evidence was insufficient to prove, beyond a reasonable doubt, that he committed that offense, as alleged in the petition filed by the Juvenile Officer of Cole County.

We affirm pursuant to Rule 84.16(b).


text:
    Christopher KUEHNE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64543.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   ORDER

PER CURIAM.

Christopher Kuehne appeals the denial, after an evidentiary hearing, of his Rule 29.15 motion for relief from his convictions by a Jackson County jury on two counts of statutory rape in the first degree (§ 566.032, RSMo 1994) and four counts of statutory sodomy in the first degree (§ 566.062, RSMo 1994), for which he was sentenced to two consecutive terms of life imprisonment, plus twenty-five years. As the motion court’s findings and conclusions are not clearly erroneous and no jurisprudential purpose would be served by a formal written opinion, we affirm pursuant to Rule 84.16(b).


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Mary Ann WALKER, Respondent, v. Cheryl D. ANDERSON, Appellant.
    No. WD 65189.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.

      William E. Shull, Jr., Liberty, MO, for appellant.
    Jerome E. Brant, Liberty, MO, for respondent.
    Before ULRICH, P.J., BRECKENRIDGE and SMART, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Cheryl D. Anderson appeals the trial court’s grant of summary judgment in favor of Mary Ann Walker in this unlawful detainer action. In her sole point on appeal, Ms. Anderson asserts the trial court erred in granting summary judgment in favor of Ms. Walker because a material dispute exists regarding whether Ms. Walker lawfully possessed the premises. In particular, Ms. Anderson claims that Ms. Walker acquired possession of the premises by fraud, misrepresentation, and tortious conduct and, therefore, she did not lawfully possess the property. Because Ms. Anderson’s claim is, in essence, a challenge to Ms. Walker’s title, a claim that is not cognizable in an unlawful detainer action, the trial court did not err in granting summary judgment in favor of Ms. Walker. Accordingly, the trial court’s judgment is affirmed.

Factual and Procedural Background

On January 29, 2004, Ms. Anderson signed a warranty deed transferring the property located at 11023 N. Locust Street in Kansas City to Ms. Walker. The next day, Ms. Anderson and Ms. Walker entered into a lease agreement for the same property whereby Ms. Anderson agreed to pay Ms. Walker $720 a month as rent, with the first month’s rent due on February 1, 2004. Ms. Anderson paid Ms. Walker monthly rental payments from February 2004 through May 2004. Beginning in June 2004, however, Ms. Anderson failed to make any further monthly rental payments.

On August 30, 2004, Ms. Walker made written demand upon Ms. Anderson that she was to deliver possession of the premises to Ms. Walker by September 30, 2004. Ms. Walker’s written demand also notified Ms. Anderson that she was formally terminating the lease, effective September 30, 2004. After receiving Ms. Walker’s notice, however, Ms. Anderson refused to vacate the premises. Thereafter, on October 12, 2004, Ms. Walker filed a petition for unlawful detainer.

On November 17, 2004, Ms. Anderson filed her answer in which she denied that Ms. Walker was the true owner of the property. In addition, Ms. Anderson claimed that she held both legal and equitable title to the property and that Ms. Walker’s title and possession of the property were procured by fraud and misrepresentation. In addition, Ms. Anderson filed a two-count counterclaim for declaratory judgment and fraud and misrepresentation. On December 15, 2004, Ms. Walker filed a motion in limine to prevent Ms. Anderson from submitting any evidence relating to the issue of title to the property in question and a motion to dismiss Ms. Anderson’s counterclaims. Thereafter, Ms. Walker filed a motion for summary judgment on her unlawful detainer claim, including a supporting affidavit, copies of the pertinent documents related to transfer of the property, the lease agreement, and the demand for possession.

On January 28, 2005, the trial court heard arguments on Ms. Walker’s motion for summary judgment. Thereafter, the trial court granted Ms. Walker’s motion for summary judgment and ordered Ms. Anderson to pay restitution in the amount of $11,520, which represented double damages for past rent due, plus further damage in the amount of $1440 per month, until restitution is made. Ms. Anderson filed this appeal.

Standard of Review

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This court’s criteria for ascertaining the propriety of summary judgment are the same as those that a trial court uses initially. Id. This court does not defer to the trial court’s order granting summary judgment because the trial court’s initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate where the moving party establishes that no genuine issue of material fact exists and the party has a right to judgment as a matter of law. Id. at 378.

Challenge to Legal Title Not Cognizable in Unlawful Detainer Action

In her sole point on appeal, Ms. Anderson asserts the trial court erred in granting summary judgment in favor of Ms. Walker because a material dispute exists concerning whether Ms. Walker lawfully possessed the premises. Ms. Anderson claims that Ms. Walker did not lawfully possess the premises because she acquired title to the property by fraud, misrepresentation, and tortious conduct. In particular, Ms. Anderson contends that Ms. Walker procured the warranty deed to the property at issue in this case by fraud, misrepresentation, coercion, and duress because Ms. Anderson was on “significant pain medication” at the time she executed the warranty deed and was unable to understand the legal ramifications of the transaction.

In an unlawful detainer action, under section 534.200, RSMo 2000, “[t]he complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same.” “[T]he principal issue in an unlawful detainer action is the immediate right of possession.” S.L. Motel Enters., Inc. v. E. Ocean, Inc., 751 S.W.2d 114, 117 (Mo.App. E.D.1988). “Issues relating to title or matters of equity ... cannot be interposed as a defense in unlawful detainer actions.” Id. See also Section 534.210, RSMo 2000 (“The merits of the title shall in nowise be inquired into, on any complaint which shall be exhibited by virtue of the provisions of this chapter.”). In addition, “ ‘counterclaims are also prohibited in unlawful detainer proceedings, regardless of the subject matter, unless permitted by statute. Missouri statutes do not so permit.’ ” Cent. Bank of Kansas City v. Mika, 36 S.W.3d 772, 774 (Mo.App. W.D.2001) (quotation omitted).

While recognizing that issues regarding title are not cognizable in an unlawful detainer action, Ms. Anderson nevertheless attempts to craft her claim in such a manner that it is not barred by these legal principles. Ms. Anderson characterizes her claim not as a challenge to legal title but, rather, as a challenge to the “mode” of obtaining possession. In particular, Ms. Anderson claims the “mode” whereby Ms. Walker obtained possession of the property at issue in this case was fraudulent and such an issue is a legitimate question in an unlawful detainer case. Ms. Anderson, however, fails to cite any authority to support her argument that the “mode” of obtaining possession is a distinct and cognizable issue in an unlawful detain-er action. The true nature of Ms. Anderson’s claim is that Ms. Walker does not have a right to possess the property at issue in this case because she procured the warranty deed by fraud and, therefore, Ms. Walker is not the owner of the property. Such a claim is, in essence, a challenge to Ms. Walker’s title to the property and, therefore, is not cognizable in an unlawful detainer action. Mika, 36 S.W.3d at 774-75.

This court’s decision in Mika, is particularly instructive. In that case, the plaintiff, a bank, filed an unlawful detain-er action to remove the defendants from property the bank purchased at a foreclosure sale. Id. at 773. The defendants argued that the trial court erred in granting summary judgment in favor of the bank because the bank did not acquire “legal title” to the property. Id. at 773-74. Specifically, the defendants argued the bank “defrauded them into agreeing to the foreclosure sale by falsely representing it as a ‘friendly foreclosure.’” Id. at 774. Thus, the basis of the defendants’ argument in Mika was that the “mode” whereby the bank obtained possession of the property was fraudulent, i.e., a fraudulent foreclosure sale. This court, however, rejected the defendants’ claim finding such an issue not cognizable in an unlawful detainer action. Id. at 774-75.

Likewise, in this case, Ms. Anderson argues that the underlying transaction whereby Ms. Walker obtained possession of the property, or the “mode” whereby she obtained possession, was fraudulent. Specifically, she claims that Ms. Walker defrauded her into agreeing to transfer the property because she was on “significant pain medication” at the time of the transaction. This is, in essence, the same argument this court rejected in Mika and is prohibited by section 534.210. Consequently, Ms. Anderson’s claim is not cognizable in an unlawful detainer action and, therefore, this court finds no genuine issue of material fact. Ms. Anderson’s point is denied.

In sum, the relevant issue in an unlawful detainer action is the immediate right of possession. S.L. Motel Enters., 751 S.W.2d at 117. In this case, Ms. Anderson transferred the property to Ms. Walker by signing a warranty deed. Then, Ms. Anderson was a month-to-month tenant under a lease agreement with Ms. Walker. Ms. Anderson paid monthly rent under the terms of the lease agreement for four months. Beginning in June 2004, however, Ms. Anderson failed to make any additional rental payments. On August 30, 2004, Ms. Walker provided notice to Ms. Anderson that she was terminating her tenancy effective September 30, 2004. Ms. Anderson, however, remained in possession of the premises after September 30, 2004, at which time she became a holdover tenant. See Section 534.030, RSMo 2000. Consequently, at that time, Ms. Walker had the immediate right to possession of the property. Accordingly, the trial court did not err in granting summary judgment to Ms. Walker.

The trial court’s judgment is affirmed.

All concur.

      . In addition, on July 6, 2004, Ms. Walker filed a rent and possession action against Ms. Anderson. In response, Ms. Anderson filed a two-count counterclaim for declaratory judgment and fraud and misrepresentation surrounding the transfer of the property at issue in this case to Ms. Walker. On November 16, 2004, Ms. Walker dismissed her rent and possession claim. Ms. Anderson’s claims, however, are still pending.

      . The trial court’s judgment did not specifically address Ms. Anderson’s counterclaims or Ms. Walker’s motion to dismiss. In granting Ms. Walker the relief she requested, however, the trial court implicitly held that Ms. Anderson could not challenge Ms. Walker’s title in an unlawful detainer action. "If a judgment, by implication, necessarily carries with it a finding upon a counterclaim, the judgment will be sustained as final even though the counterclaim is not mentioned.” Martin v. Lorren, 890 S.W.2d 352, 359 (Mo.App. S.D.1994). The trial court's judgment is sufficient to deny Ms. Anderson’s counterclaims and, therefore, is a final judgment.

      . Section 534.030, RSMo 2000, provides:
      When any person willfully and without force holds over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to the person, or the person under whom such person claims; or after a mortgage or deed of trust has been foreclosed and the person has received written notice of a foreclosure; or when premises are occupied incident to the terms of employment and the employee holds over after the termination of such employment; or when any person wrongfully and without force, by disseisin, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made, in writing, for the delivery of such possession of the premises by the person having the legal right to such possession, or the person’s agent or attorney, shall refuse or neglect to vacate such possession, such person is guilty of an "unlawful detainer”.


text:
    E.W., Respondent, v. KANSAS CITY MISSOURI SCHOOL DISTRICT, Appellant.
    No. WD 64943.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Charles R. Brown, Kansas City, MO, for appellant.
    Dean L. Christianson, St. Louis, MO, for respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

The Kansas City Missouri School District appeals the Labor and Industrial Relations Commission’s Order finding that it was responsible for some of the medical expenses of E.W., a former high school teacher in the District, and that because it refused to pay certain medical expenses of E.W., without reasonable grounds, it was liable for E.W.’s attorney’s fees in the amount of $1000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Aaron M. GROVES, Appellant.
    No. WD 64695.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Mark C. Prugh, Waynesville, MO, for appellant.
    Robert J. Seek, Tuscumbia, MO, for respondent.
    Before LOWENSTEIN, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Aaron M. Groves was convicted, after a jury trial, of the traffic offense of faffing to drive on the right half of a highway, under section 304.015, RSMo Cum.Supp.2004. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Leslie TAYLOR, Appellant.
    No. WD 64638.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Jeannie M. Willibey, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JJ.
   ORDER

PER CURIAM.

Leslie Taylor appeals his conviction following a jury trial for first-degree murder, section 565.020, RSMo 2000, and armed criminal action, section 571.015, RSMo 2000, and sentences of concurrent terms of life without the possibility of probation or parole for first-degree murder and ten years for armed criminal action.

For reasons stated in the memorandum provided to the parties, the judgment is affirmed. Rule 30.25(b).


author: MARY K. HOFF, Presiding Judge. CLIFFORD H. AHRENS, Judge,

text:
    STATE of Missouri, Plaintiff/Respondent, v. Edwin L. METCALF, Defendant/Appellant.
    No. ED 85803.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 24, 2006.

      Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
   OPINION

MARY K. HOFF, Presiding Judge.

Edwin L. Metcalf (Defendant) appeals the trial court’s judgment and sentence imposed following a jury verdict convicting him of Class C felony possession of a controlled substance, in violation of Section 195.202 RSMo 2000. The trial court sentenced Defendant, as a prior and persistent offender in accordance with Section 558.016, to a term of ten years’ imprisonment. We reverse.

Facts

The State presented the testimony of Warrenton Police Officer Eric Schleuter (Schleuter) and Missouri Highway Patrol Crime Laboratory (Lab) Criminalist Supervisor Sid Popejoy (Popejoy). Schleuter testified as follows: On March 3, 2003, Schleuter and two other police officers, pursuant to a search warrant, requested entry to a Budget Host Inn hotel room occupied by Defendant and his wife (Wife). When Wife opened the door to admit the officers, Schleuter observed Defendant sitting on a bed in the room.

After entering the room, Schleuter read the warrant to Defendant and Wife. Wife and Defendant were cooperative with the officers. The officers patted down Defendant and Wife and asked them to empty their pockets; both complied. The officers seized from Wife’s person a piece of aluminum foil with burned residue. The officers seized a notebook from one of Defendant’s pockets. The notebook was turned to a page containing a partial list of items used in the production of methamphetamine: one bowl, two small jars, one big jar, hose, muriatic, filters, Dremel. One item on the list, “hose” was scratched off, and a hose was found on a table in the hotel room.

During their subsequent search of the room, the officers found a second piece of aluminum foil containing burned residue and a straw with residue in it. When Schleuter performed field tests on these retrieved items, the tests indicated a positive result for methamphetamine. The second piece of aluminum foil was found next to or in a trash can next to one of the beds in the room, and the straw was found near a black bag on a dresser countertop. The black bag contained women’s clothing, a box of aluminum foil, a bag of individual packets of salt, and six straws. The officers also retrieved two additional pieces of aluminum foil and a mirror with residue from the room.

After the officers received permission to search a vehicle located in front of the hotel room, they seized a digital scale, two walkie-talkie radios, and a night-vision device from the vehicle. Schleuter testified that these items are often found on individuals who steal anhydrous ammonia, which is used in manufacturing methamphetamine.

Following their search and seizure of items in the room and vehicle, the officers arrested Defendant and Wife for possession of a controlled substance. Wife subsequently pleaded guilty to her possession charge.

Popejoy testified that his Lab received from the Warrenton police agency a packet of four items: the mirror, the straw, and the two pieces of foil containing burned residue. However, Popejoy tested only the mirror and straw. He indicated that his testing confirmed that the straw contained methamphetamine residue which “was too small to weigh with the balance that we routinely use.”

Defendant moved for a judgment of acquittal at the close of the State’s evidence due to failure to prove the element of possession, which was denied. Defendant presented no evidence. The jury returned a verdict finding Defendant guilty of possession of a controlled substance. Defendant again challenged the sufficiency of the evidence in his motion for new trial, which was denied. This appeal follows.

Analysis

Defendant raises three points on appeal. Because we find Defendant’s first claim of error dispositive, we need not address his remaining points, which claim error in the trial court’s admission of certain testimony and evidence. In his first point, Defendant contends the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to establish beyond a reasonable doubt that Defendant’s mere presence in the hotel room showed that he had the power and intention to exercise dominion or control over the controlled substances found in the room, and, thus, the jury could not have reached a “subjective state of near certitude” that Defendant was in constructive possession of any controlled substance.

When a defendant challenges the sufficiency of the evidence to support his conviction, we review to determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty of the charged offense beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). Taking the evidence in the light most favorable to the State and granting the State all reasonable inferences, we must consider whether a reasonable juror could find each of the crime’s elements beyond a reasonable doubt. Id.

To sustain a conviction for possession of a controlled substance under Section 195.202, the State must prove that Defendant knowingly and intentionally possessed the illegal substance. State v. Morris, 41 S.W.3d 494, 497 (Mo.App. E.D. 2001). When, as here, actual possession is not present, the State must prove constructive possession and must show other facts that buttress the inference of possession. Id. A person constructively possesses a substance when he “has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons[.]” Section 195.010(32).

At a minimum, constructive possession necessitates proof that a defendant had access to and control over the premises where the drugs were discovered. Moms, 41 S.W.Sd at 497. In cases where a premises is jointly possessed, further evidence is required to connect a defendant to the controlled substance. Id. Such evidence might include routine access to the area where the substances are kept, the presence of large quantities of the substance at the arrest scene, admissions by the accused, being in close proximity to the substances or drug paraphernalia in plain view of the law enforcement officers, the mixing of defendant’s personal belongings with the drugs, or flight by a defendant upon realizing the presence of law enforcement officials. Id. In making our determination as to whether sufficient additional incriminating circumstances have been proven, we consider the totality of the circumstances. Id.

The State’s evidence failed not only to prove control, a necessary element to prove constructive possession, but also to show sufficient facts to establish an inference of possession. Id. Here, although Defendant had access to the area where the residue was found, he possessed the premises jointly with Wife, who pleaded guilty to possession of methamphetamine. Only Wife, not Defendant, had actual, physical possession of any item containing the controlled substance. Defendant’s personal belongings were not commingled with the items containing residue. Although cooperative with the law enforcement officers, Defendant made no incriminating admissions.

Furthermore, only methamphetamine residue was retrieved during the search. Considering the minute quantity of methamphetamine residue actually retrieved and the fact this residue was found in a straw, we cannot conclude that the substance was in plain view of Schleuter and that Defendant’s relatively close proximity to these items established an inference of possession.

As to the notebook found in Defendant’s pocket and containing a partial list of items used in methamphetamine production, this evidence, while possibly relevant to a charge of manufacturing, did not show Defendant’s knowledge of the presence of or control over a controlled substance. Thus, the notebook was not an additional incriminating factor that would buttress the inference of possession.

Considering the totality of the circumstances, we conclude the State failed to produce sufficient evidence from which a reasonable juror could have found Defendant guilty beyond a reasonable doubt. Whalen, 49 S.W.3d at 184. We reverse and order that Defendant be discharged.

PATRICIA L. COHEN, Judge, concurs.

CLIFFORD H. AHRENS, Judge, Dissents in separate opinion.

CLIFFORD H. AHRENS, Judge,

dissenting.

I respectfully dissent. The majority concludes that the state failed to produce sufficient evidence from which a reasonable juror could find guilt beyond a reasonable doubt on the charge of possession of a controlled substance. However, I believe there was evidence of defendant’s constructive possession of methamphetamine, and therefore, the state presented sufficient evidence to support defendant’s conviction.

Pursuant to section 195.010(34), “a person, with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance.” The majority notes that only wife, and not defendant, had actual physical possession of a controlled substance. However, pursuant to section 195.010(34), actual possession is not required. The statute states that a person, not in actual possession, may be in constructive possession where that person has the power and intention to exercise dominion .or control over the substance. “ ‘Constructive possession requires, at a minimum, evidence that [defendant had access to and control over the premises where the drugs were found.’” State v. Bacon, 156 S.W.3d 372, 378; (quoting State v. Morris, 41 S.W.3d 494, 497 (Mo.App.2000)).

As the majority notes, where the premises are jointly possessed, there must be additional evidence of other incriminating circumstances to permit an inference of knowledge or control over the substance. Bacon, 156 S.W.3d at 378 (citation omitted). This includes, “ ‘routine access to an area where such substances are kept, the presence of large quantities of the substance at the scene where [defendant] is arrested, admissions of the accused, ... being in close proximity to drugs or drug paraphernalia in plain view of the police, [and the] mixture of defendant’s personal belongings with the drugs.’ ” Id.; (quoting Morris, 41 S.W.3d at 497).

In the present case, defendant was in joint control of the hotel room with his wife, and as the majority notes, there was only a small quantity of the substance found on the premises. Moreover, defendant did not make any admissions to incriminate himself. However, there is sufficient additional evidence to support an inference that he had knowledge of and control over the substance found in the room.

The majority concludes that the small quantity of methamphetamine found in the straw, and the fact that the residue was found in a straw, requires a conclusion that the substance was not in plain view and that defendant’s close proximity to the straw did not establish an inference of possession. I disagree. The straw, containing residue of a substance in it, was found on top of a dresser in the hotel room, which also held the television. There were no separate areas in the room, other than the bathroom, and defendant was sitting on one of the beds in the hotel room. Regardless of the amount of substance contained in the straw, defendant was in close proximity to the straw which contained the substance, and the straw containing the substance was in plain view of the police. The officers also found a piece of aluminum foil with burned residue either next to or in a trash can in the room. Field tests on the foil indicated a positive result for methamphetamine. The foil was also in plain view of the police, and in close proximity to defendant.

In addition to defendant’s proximity to the controlled substance and the fact that the substance was in plain view, Officer Schleuter testified that they found several other items in the room which were associated with the manufacture of methamphetamine. A list was found in a notebook in defendant’s pocket which contained items used in the production of methamphetamine. One of the items had been crossed off the list, and that item was found in the hotel room. Additionally, Officer Schleu-ter testified that a box of aluminum fob and a bag containing individual packets of salt were found in the room. He stated that the foil can be used to package methamphetamine or to use it. Officer Schleu-ter also noted that salt can be combined with muriatic acid, an item on the list in defendant’s notebook, as part of the process of manufacturing methamphetamine.

The majority determined that the evidence of the list found in defendant’s pocket may possibly be relevant to a charge of manufacturing, but did not show defendant’s knowledge of the presence of or control over a controlled substance. However, given the evidence regarding the items listed in the notebook found in defendant’s pocket, coupled with the additional evidence of other items found in the room which were associated with the manufacture of methamphetamine, sufficient additional evidence of “incriminating circumstances” was presented to raise an inference of defendant’s knowledge and control over the controlled substance in the hotel room.

Based upon the evidence of defendant’s constructive possession of methamphetamine, the state presented sufficient evidence to support a conviction of possession of a controlled substance. Therefore, the trial court did not err in denying defendant’s motion for judgment of acquittal. I would affirm the judgment of the trial court.

The majority’s review of defendant’s first claim on appeal was dispositive, and therefore, the majority does not reach the two remaining points on appeal. Because I believe the judgment of the trial court should be affirmed, I will briefly address each point. Neither point was preserved for review, and therefore they may be reviewed only for plain error. State v. Presberry, 128 S.W.3d 80, 85 (Mo.App.2003); (citing Supreme Court Rule 30.20).

In his second point on appeal, defendant claims that the trial court erred in admitting the testimony of Officer Schleuter regarding his observations of defendant pri- or to the execution of the search warrant at the Budget Host Inn. The evidence of Officer Schleuter’s observations of defendant prior to his arrest was part of the sequence of events which led to the securing of the search warrant for the Budget Host Inn. Its probative value in explaining the events outweighs any potential prejudice. Thus, the trial court did not err, plainly or otherwise, in admitting such testimony.

In his third point on appeal, defendant claims the trial court erred in admitting evidence of items seized from his car and in admitting testimony concerning the potential use of the items. As the majority notes, a digital scale, a night vision device, and two radios were found in the vehicle. Officer Schleuter testified that the digital scale is often used in the weighing of different items “indicative with drug use.” With respect to the night vision device and the radios, Officer Schleuter testified that these items were seized because they have been used in the past by people stealing anhydrous ammonia, which is used in the manufacture of methamphetamine.

Here, the evidence of the items recovered from the vehicle, and the testimony regarding their potential use in obtaining materials to produce methamphetamine, was relevant to the crime with which defendant was charged. Additionally, while Officer Schleuter’s testimony concerning the potential for use of the items to steal material used for production of methamphetamine may have been prejudicial, its probative value outweighed any potential prejudicial effect. Thus the trial court did not err, plainly or otherwise, in admitting such testimony.

As a result of the foregoing, I would affirm the judgment of the trial court.

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