text:
    Cindy FIRESTONE, Appellant, v. Anthony VANHOLT, Diane VanHolt, and Susan VanHolt, Defendants, Matthew VanHolt and Jim Akers, Respondents.
    No. WD 64523.
    Missouri Court of Appeals, Western District.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11, 2006.

      Jeffery T. Adams, Clinton, MO, for Appellant.
    James C. Johns, Clinton, MO, for Respondent VanHolt.
    Michael X. Edgett and Audara L. Charl-ton, Clinton, MO, for Respondent Akers.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.
   EDWIN H. SMITH, Chief Judge.

Cindy Firestone appeals the summary judgments of the Circuit Court of Henry County for respondents, Matthew VanHolt (M. VanHolt) and Jim Akers (Akers), on the appellant’s first amended wrongful death petition filed against them, seeking to hold them vicariously liable in damages for the death of her husband, Paul Firestone (P. Firestone). He died from injuries he sustained when the motor vehicle he was driving was struck from behind by a motor vehicle being driven by Anthony VanHolt (A. VanHolt), M. VanHolt’s brother. At the time of the accident, A. Van-Holt, who owned Tony’s Roofing, was traveling to a roofing job at the Greyhound Apartments in Windsor, Missouri. The job was secured by Akers, d.b.a. Akers Home Improvement, pursuant to a competitive bid. The appellant alleged in Count III of her first amended petition that M. VanHolt was vicariously liable for the wrongful death damages caused by Anthony’s negligence based upon a joint venture or partnership theory with respect to the Greyhound Apartments roofing job. She alleged in Count IV that Akers was vicariously liable for her alleged wrongful death damages based upon a joint venture or agency theory with respect to the roofing job. M. VanHolt and Akers filed separate motions for summary judgment. In their motions, they alleged that they were entitled to summary judgment on the appellant’s claims against them because the undisputed facts alleged in their motions negated one or more of the essential proof elements of the appellant’s claim against them on any theory pled.

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in granting Akers’ motion for summary judgment on Count IV of her amended petition, as to both theories of her claim, joint venture and agency, on the basis that the undisputed facts alleged by Akers in his motion: (1) negated the essential proof element of the appellant’s claim, pled on a joint venture theory, that Akers had an equal right of control with respect to the shingling job; and (2) negated the essential proof element of her claim, pled on an agency theory, that Akers had the right to control the shingling job, because the summary judgment record supports inferences other than the inferences on which Akers relied for summary judgment, as to both theories of the appellant’s claim pled. In Point II, she claims that the trial court erred in granting M. Van-Holt’s motion for summary judgment on Count III of her amended petition, as to both theories of her claim, joint venture and partnership, on the basis that the undisputed facts alleged in M. VanHolt’s motion negated each of the essential proof elements of the appellant’s claim, pled on a joint venture or partnership theory, because there is a genuine dispute as to the material facts on which M. VanHolt relied to negate the proof elements of the appellant’s claim, on either theory pled, entitling him to summary judgment.

We reverse and remand.

Facts

On January 14, 2002, A. VanHolt was traveling, in his pickup truck, north on Missouri 13 Highway in St. Clair County, Missouri, to a roofing job at the Greyhound Apartments in Windsor, Missouri. A. VanHolt was doing business as Tony’s Roofing. Traveling with him was Lynn Christensen, who had been hired by A. VanHolt to work on the roofing job. Christensen was riding in the front passenger seat and was repairing an air hose for A. VanHolt’s nail gun. When Christensen returned the hose to the back seat, A. VanHolt turned to make sure that he did not place it on top of his bow and arrow. By the time he returned his attention to the road, it was too late to prevent his vehicle from colliding with the rear end of a vehicle being driven by the appellant’s husband, Paul Firestone. As a result of the collision, Firestone suffered injuries resulting in his death on January 16, 2002.

The appellant filed a petition in St. Clair County for damages for the wrongful death of her husband. On September 27, 2002, after a change of venue, the appellant filed a first amended petition in the Circuit Court of Henry County. In Count I of her petition, she sought damages from A. VanHolt, alleging that his negligence caused the accident that caused her husband’s death. In Count II, she sought damages from A. VanHolt’s wife, Diane, alleging that she was a partner with her husband in Tony’s Roofing and, therefore, was vicariously liable for his negligent acts in causing the death of the appellant’s husband, because they were done in the ordinary course of business of Tony’s Roofing. In Count III, she sought damages from M. VanHolt and his wife, Susan VanHolt, alleging that, as partners in the roofing business, they were vicariously liable for A. VanHolt’s negligent acts in causing the death of the appellant’s husband, because they were done in the ordinary course of business of either a joint venture or partnership entered into with A. Van-Holt to complete the Greyhound Apartments roofing job. In Count IV, she sought damages from Akers, alleging that he was vicariously liable for A. VanHolt’s negligent acts in causing the death of the appellant’s husband, because they were done in the ordinary course of business of either a joint venture or an agency agreement with Akers to complete the Greyhound Apartments roofing job.

On May 7, 2003, Akers filed a motion for partial summary judgment. In the motion, he alleged uncontroverted facts which he claimed negated one or more of the proof elements of the appellant’s claim pled against him, in Count IV, on either a joint venture or agency theory. On November 18, 2003, M. VanHolt and his wife filed a motion for summary judgment. In their motion, they alleged uncontroverted facts which they claimed negated one or more of the proof elements of the appellant’s claim against them, in Count III, pled on either a joint venture or partnership theory.

On February 10, 2004, the trial court entered summary judgment in favor of Akers, M. VanHolt, and Susan VanHolt, which was amended on August 20, 2004. Both judgments were certified for early appeal, the court stating, “there is no just reason for delay pursuant to Rule 74.01(b) and states such Judgment shall be final and subject to appeal.”

This appeal follows.

Summary Judgment Standard of Review

In reviewing the grant of a summary judgment, we review de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

Id. (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380.

When considering appeals from summary judgments, the [cjourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

In Point I, the appellant claims that the trial court erred in granting Akers’ motion for summary judgment on Count IV of her amended petition, as to both theories of her claim, joint venture and agency, on the basis that the undisputed facts alleged by Akers in his motion: (1) negated the essential proof element of the appellant’s claim, pled on a joint venture theory, that Akers had an equal right to control the Greyhound Apartments roofing job; and (2) negated the essential proof element of her claim, pled on an agency theory, that Akers had the right to control the Greyhound Apartments roofing job, because the summary judgment record supports inferences other than the inferences on which Akers relied for summary judgment, as to both theories pled as to the appellant’s claim. We agree.

Pursuant to Rule 74.04, to be entitled to summary judgment, the movant must show that: (1) there is no genuine dispute as to the material facts on which the movant is relying for summary judgment; and (2) based on those undisputed facts, the movant is entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp., at 380; Childress Painting & Assocs., Inc. v. John Q. Hammons Hotels Two L.P., 106 S.W.3d 558, 561 (Mo.App.2003).

If the movant is a defending party, ... a prima facie case for summary judgment can be established by employing one or more of three means: (1) showing undisputed facts that negate any one of the plaintiffs required proof elements; (2) showing that the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiffs proof elements; or (3) showing that there is no genuine dispute as to the existence of the facts necessary to prove the movant’s properly pleaded affirmative defense. Regardless of which of these three means is employed by the defending party, each establishes a right to judgment as a matter of law.

Childress Painting, 106 S.W.3d at 561 (citations omitted). A defending party is not entitled to full summary judgment, unless he alleges undisputed facts “demonstrating that the plaintiff cannot recover on any theory pled.” Id.

Although the appellant, in her Point Relied On in this point, claims error with respect to summary judgment for Akers, on Count IV, as to both theories of her claim, joint venture and agency, she fails to make any argument in the argument of her point as to why it was error to grant Akers summary judgment on her claim, pled on a theory of agency. While there is no requirement that the argument section of an appellate brief be perfect, it must adequately present and address the issues to be decided. State v. Hendricks, 944 S.W.2d 208, 210 (Mo. banc 1997). Hence, the appellant must develop, in the argument section of the brief, error raised in the point relied on. Eagle ex rel. Estate of Eagle v. Redmond, 80 S.W.3d 920, 923-24 (Mo.App.2002). “An argument is not properly before an appellate court if it merely makes bald assertions of general principles of law and never develops how such principles mandate reversal in the factual context of the particular case.” Id. at 924. It is not within the appellate court’s province to speculate about and then decide arguments that are not asserted or that are merely asserted, but not developed. Id. A submission of error, being without reasoned argument does not require, or even allow, a decision. Id. “Thus, errors raised in the points relied on, which are not supported by argument, are deemed abandoned and present nothing for appellate review.” Id.

Because the appellant failed to develop any argument in Point I as to why summary judgment for Akers on Count IV, on an agency theory of her claim against him, was improper, her claim of error in that respect in Point I is deemed abandoned. Id. As such, we will only address her claim in Point I that the trial court erred in granting summary judgment to Akers on Count IV, with respect to her claim pled on a joint venture theory.

A joint venture is a species of partnership. Johnson v. Pac. Intermoun-tain Express Co., 662 S.W.2d 237, 241 (Mo. banc 1983). The distinction between a joint venture and a conventional partnership is that the former exists for a particular, defined purpose. Id. Although a joint venture is a consensual arrangement, no particular formalities are necessary. Id. There is a mutual agency among the ven-turers for activities within the scope of the venture, and all have equal right of control. Id. Joint venturers are jointly and severally liable for torts committed within the scope of the joint venture. Id. at 241-42.

To succeed on her claim against Akers, on Count IV of her amended wrongful death petition, that he was vicariously liable for the wrongful death damages caused by A. VanHolt’s negligence in killing her husband, Paul, based on a joint venture theory, the appellant has to show, inter alia, that Akers and A. VanHolt had: (1) an express or implied agreement; (2) a common purpose in carrying out the Greyhound Apartments job; (3) a community of pecuniary interest in that common purpose; and, (4) an equal voice, giving an equal right of control in the direction of the enterprise. Inauen Packaging Equip. Carp. v. Integrated Indus. Servs., 970 S.W.2d 360, 371 (Mo.App.1998). Employing the first means available to a defending party for summary judgment, Akers alleged in his motion material facts, which he contended were undisputed and negated the essential proof element of the appellant’s joint venture claim, that he and A. VanHolt had an equal right of control over the Greyhound Apartments job, to which he was en route at the time of the accident that killed the appellant’s husband. The appellant contends that the facts on which Akers relied for summary judgment on her claim against him on a joint venture theory, were in genuine dispute, such that it was error for the trial court to grant Akers summary judgment on that theory of her claim against him.

As noted, supra, to make a prima facie case for summary judgment, pursuant to Rule 74.04, the movant must allege material facts, which if true, would entitle him to judgment as a matter of law. ITT Commercial Fin. Corp., 854 S.W.2d at 380. Thus, once a prima facie case is made, the only way the non-movant can defeat summary judgment is to place in genuine dispute one or more of the material facts on which the movant relies for summary judgment. Id. at 381. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. at 382. A general denial, by the non-movant in his response, is not sufficient to place a material fact in genuine dispute sufficient to rebut a prima facie case for summary judgment. Id. To place a fact in genuine dispute, for purposes of summary judgment, the non-movant, in denying the fact, must make “specific references to the discovery, exhibits or affidavits that demonstrate the specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2).

A genuine issue exists where the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts.” ITT Commercial Fin. Corp., 854 S.W.2d at 382. “If movant requires an inference to establish his right to judgment as a matter of law, and the [summary judgment record] reasonably supports any inference other than (or in addition to) the movant’s inference, a genuine dispute exists,” and thus, the movant is not entitled to summary judgment. Id.

The facts, on which Akers relied for summary judgment on the appellant’s claim against him, on a joint venture theory, to negate the essential element of the appellant’s claim that he and A. VanHolt had an equal right of control over the Greyhound Apartments job, are as follows: (1) A. VanHolt had his own roofing business known as Tony’s Roofing; (2) the only instruction Akers gave A. VanHolt was which building he wanted done first; (3) Akers did no work on the job site with A. VanHolt; (4) A. VanHolt made the decision as to what time work would start in the morning and what time it would stop; (5) Akers did not restrict how many employees A. VanHolt hired to do the job; (6) A. VanHolt had control over when he would start or finish the job and over what days and hours he worked; (7) A. VanHolt made the decisions as to how to install the shingles; (8) A. VanHolt decided when he would take breaks, how long the breaks would be, and whether and how long they would stop for lunch; (9) A. VanHolt would decide if the roof was safe to walk on considering moisture, frost or ice; (10) A. VanHolt made the decisions about how he drove on his way to and from the job site; (11) Akers had no control over A. VanHolt with respect to how he operated his vehicle in relation to the job; and (12) Akers did not supervise A. VanHolt at the job site when he was there. Akers contends, and we would agree, that it can be inferred reasonably from these facts that he did not have an equal right of control with A. VanHolt with respect to the Greyhound Apartments roofing job, such that he made a prima facie case for summary judgment as to the appellant’s claim against him, pled on a joint venture theory, by negating an essential proof element of that claim.

The appellant contends that a genuine dispute of material fact exists as to whether Akers negated the control element of her claim, pled on .a theory of joint venture. In that regard, she does not directly dispute the facts alleged by Akers. Rather, she essentially contends that based on the additional facts she pled in her response, as provided by Rule 74.04(c)(2), a reasonable inference could be drawn that Akers and A. VanHolt had an equal voice in the Greyhound Apartments job. In so contending, she alleged, as additional facts, that: (1) A. VanHolt was not .covered under Akers’ city permit to allow him to perform work on the Greyhound Apartments job; (2) the job required the successful bidder to have or to be able to obtain a license to work in the City of Windsor, Missouri; (3) Akers called the lumberyard to have the shingles delivered to the job site; (4) Jeremiah Christensen, an employee of Akers, was at the job site helping load shingles on the roof; (5) A. VanHolt did not obtain the required city license to work in the City of Windsor, Missouri; (6) Akers told A. VanHolt which building he wanted completed first; (7) the Greyhound Apartments job required the successful bidder to have a current $300,000 minimum general liability policy, which Akers had, but A. VanHolt did not; and (8) the Greyhound Apartments job required the successful bidder to have three personal or business references, which Akers provided, but A. VanHolt did not. In compliance with Rule 74.04(c)(2), the appellant’s additional facts were supported by specific references to the depositions of A. and M. VanHolt.

As required by Rule 74.04(c)(2), Akers admitted all the appellant’s additional facts, except the fact that Akers called the lumberyard to have the shingles delivered to the job site. However, whether admitted or denied, once the appellant complied with the rule with respect to specific references to the record in support of her additional facts, it mattered not in that even if denied by the movant Akers, the appellant, as the non-movant without the burden of proof as to the motion, is entitled to rely on disputed facts to defeat a motion for summary judgment. This would logically be true in the case of the movant’s facts or the non-movant’s additional facts.

From the appellant’s additional facts and the facts alleged by Akers not in dispute, it is reasonable to infer that A. VanHolt could not work independently of Akers with respect to the Greyhound Apartments job — that both he and Akers exercised some degree of control over various aspects of the job, indicative of the requisite control necessary to find a joint venture. Thus, even if the record would support the inference relied upon by Akers for summary judgment, that there was not the control required for a claim based on a joint venture theory, it would also support the contrary inference. And, because the summary judgment record would support competing inferences, with respect to the negation of the control proof element of the appellant’s claim, pled on a theory of joint venture, the basis on which summary judgment for Akers was granted, there is a genuine dispute of material fact, requiring us to reverse the summary judgment for Akers on the appellant’s claim in Count IV of her amended wrongful death petition, pled on a joint venture theory. And, because there is no longer a full summary judgment for Akers on which to base a final judgment, in that he, as a defending party/movant, has to defeat the appellant’s claim on all theories pled to be entitled to full summary judgment, we must reverse and remand for further proceedings. Childress Painting, 106 S.W.3d at 561-62.

II.

In Point II, the appellant claims that the trial court erred in granting M. VanHolt’s motion for summary judgment on Count III of her amended wrongful death petition, as to both theories of her claim, joint venture and partnership, on the basis that the undisputed facts alleged in M. Van-Holt’s motion negated each of the essential proof elements of the appellant’s claim, pled on either theory, because there is a genuine dispute as to the material facts on which M. VanHolt relied to negate the proof elements of the appellant’s claim, on either theory pled, entitling him to summary judgment. We agree with respect to the appellant’s claim against M. VanHolt, based on a partnership theory.

Although the appellant, in her Point Relied On in this point, claims error with respect to summary judgment for M. VanHolt, on Count III of her amended petition as to both theories of her claim, joint venture and partnership, she fails to make any argument in the argument of Point II as to why it was error to grant M. VanHolt summary judgment on her claim pled on a theory of joint venture. Because the appellant failed to develop any argument in Point II as to why summary judgment for M. VanHolt on Count III, on a joint venture theory of her claim against him, was improper, her claim of error in that respect in Point II is deemed abandoned. Eagle, 80 S.W.Bd at 924. As such, we will address only her claim in Point II, that the trial court erred in granting summary judgment to M. VanHolt on Count III of her amended petition with respect to her claim based on a partnership theory.

To succeed on her claim against M. Van-Holt on Count III of her amended petition, alleging that he was vicariously hable for the wrongful death damages caused by A. VanHolt’s negligence in killing her husband, based on a partnership theory, the appellant had to show, inter alia, that M. VanHolt and his brother, A. VanHolt: (1) made an agreement, either express or implied, to “place their money, effects, labor and skill, or some or all of them, in lawful commerce or business” (associating to do business); (2) agreed to divide the profits of that commerce or business (dividing profits); and, (3) agreed to bear the loss of that commerce or business in a specified proportion (sharing losses). Morrison v. Labor & Indus. Relations Comm’n, 23 S.W.3d 902, 908 (Mo.App.2000). Employing the first means available to a defending party for summary judgment, M. VanHolt alleged in his motion material facts, which he contended were undisputed and negated each of these essential proof elements of the appellant’s partnership claim.

The appellant contends that the facts on which M. VanHolt relied for summary judgment on her claim against him on a partnership theory, were in genuine dispute such that it was error for the trial court to grant him summary judgment on that theory of her claim against him. In that regard, she does not directly dispute the facts relied upon by M. VanHolt for summary judgment. Rather, she essentially contends that based on the additional facts she pled in her response, as provided by Rule 74.04(c)(2), a reasonable inference could be drawn that the VanHolt brothers were acting as partners with respect to the Greyhound Apartments roofing job. For clarity’s sake, we will discuss each of the three proof elements of the appellant’s partnership claim in that M. VanHolt would be entitled to summary judgment on that claim if he negated one or more of those elements. Childress Painting, 106 S.W.3d at 561.

A. Associating To Do Business

In order to negate this proof element, M. VanHolt alleged in his motion that: (1) A. VanHolt had his own separate roofing business known as Tony’s Roofing; (2) M. VanHolt had his own separate roofing business known as VanHolt Roofing, which had been in existence for eighteen years; (3) M. VanHolt first became aware of the Greyhound Apartments job in 2002 when A. VanHolt called him and asked him to help lay shingles on the job. There was no discussion at that time about what M. Van-Holt’s role in the project would be and there was no discussion about what his compensation would be; and (4) the relationship between the VanHolt brothers, with respect to the job, was solely that of one brother helping another. Even assuming, arguendo, that these facts and all reasonable inferences therefrom negate the first partnership proof element, the appellant contends that a genuine dispute existed as to those facts, such that M. VanHolt was still not entitled to summary judgment on that basis.

In support of her contention that there exists a. genuine dispute of material fact as to M. VanHolt’s negation of the proof element, that the VanHolts had agreed to “place their money, effects, labor and skill, or some or all of them, in lawful commerce or business,” the appellant alleged in her response additional facts, referencing the depositions of the VanHolt brothers, that: (1) the percentage of money paid to M. VanHolt by A. VanHolt for the Greyhound Apartments job was based upon their prior relationship that they would split earnings; (2) M. VanHolt was not paid by the number of shingle squares he installed or by the number of hours he worked; and, (3) M. VanHolt had an ongoing agreement with A. VanHolt that each would be paid “fairly” for the work performed on a bid secured by the other.

From the appellant’s additional facts in her reply, it is reasonable to infer that the VanHolt brothers had agreed to “place their money, effects, labor and skill, or some or all of them, in lawful commerce or business” for the purpose .of doing business as a roofing partnership, including completing the Greyhound- Apartments job. Thus, even if the record would support the inference relied upon by M. Van-Holt for summary judgment with respect to the partnership proof element in question, it would also support the contrary inference favored by the appellant. And, because the summary judgment record would support competing inferences, with respect to that proof element, we find that there is a genuine dispute of material fact with respect thereto such that summary judgment on that basis was error.

B. Dividing Profits

In order to negate this proof element of the appellant’s partnership claim, M. Van-Holt alleged in his motion that: (1) he had no right to demand any particular percentage of the proceeds of the Greyhound Apartments job from A. VanHolt and A. VanHolt had no obligation to pay him any percentage of the income from the job; (2) despite A. VanHolt’s deposition testimony that it was his intention to give M. Van-Holt one-half the proceeds from the job, he had not made an agreement with him to give him that or any other percentage of the proceeds; and (3) he was paid $1,000 for his work on this job and that did not represent one-half or any other percentage of the job proceeds. Even assuming, ar-guendo, that these facts would negate the proof element in question, the appellant contends that they were in dispute sufficient to defeat M. VanHolt’s motion for summary judgment on that basis.

In support of her contention that there exists a genuine dispute of material fact as to the dividing-of-profits proof element of her partnership claim, the appellant alleged in her response .additional facts, referencing the depositions of the VanHolt brothers, that: (1) A. VanHolt did not pay M. VanHolt by the number of squares installed or the number of hours worked; (2) A. VanHolt intended to pay M. VanHolt a percentage of the money earned from the Greyhound Apartments job; (3) the percentage paid to M. Van-Holt was based upon his prior relationship with A. VanHolt, that they would split earnings from their roofing jobs; (4) M. VanHolt would not be paid until A. Van-Holt was paid; (5) the agreement between the brothers was that M. VanHolt would get paid one-half of the amount paid to A. VanHolt; and (6) the agreement was that M. VanHolt would get paid one-half of the proceeds regardless of how much work he performed. From these additional facts, it is reasonable to infer that the VanHolt brothers had a prior agreement to share the profits of their roofing jobs performed by their companies, including the Greyhound Apartments job. Thus, even if the record would support the inference relied upon by M. VanHolt for summary judgment with respect to the partnership proof element in question, it would also support the contrary inference favored by the appellant. And, because the summary judgment record would support competing inferences, with respect to that proof element, we find that there is genuine dispute of material fact with respect thereto such that summary judgment on that basis was error.

C. Sharing Losses

In order to negate this proof element of the appellant’s partnership claim, M. Van-Holt alleged in his motion that if A. Van-Holt lost money on the Greyhound Apartments job, he had no right to ask M. VanHolt to contribute to the loss. Even. assuming, arguendo, that this fact, if true, would negate the proof element in question, the appellant contends that it was in dispute sufficient to defeat M. VanHolt’s motion for summary judgment on that basis.

In support of her contention that there exists a genuine dispute of material fact as to the sharing-of-losses proof element of her partnership claim, the appellant alleged in her response the additional fact, referencing the deposition of A. Van-Holt, that if A. VanHolt had not been paid for the Greyhound Apartments job, then M. VanHolt would not have been paid. From this additional fact, it is reasonable to infer that the VanHolt brothers had a prior agreement to share the losses of their joint roofing jobs, including the Greyhound Apartments job. Thus, even if the record would support the inference relied upon by M. VanHolt for summary judgment with respect to the partnership proof element in question, it would also support the contrary inference favored by the appellant. And, because the summary judgment record would support competing inferences, with respect to that proof element, we find that there is genuine dispute of material fact with respect thereto such that summary judgment on that basis was error.

Because the record does not support the fact that M. VanHolt properly negated one or more of the essential proof elements of the appellant’s claim against him in Count III of her amended petition, pled on a partnership theory, it was error for the trial court to grant summary judgment on that basis, requiring us to reverse summary judgment for M. VanHolt. And, because there is no longer a full summary judgment for M. VanHolt on which to base a final judgment, in that he, as a defending party/movant, has to defeat the appellant’s claim on all theories pled to be entitled to full summary judgment, we must remand for further proceedings. Id. at 561-62.

Conclusion

The circuit court’s summary judgment for Akers on Count IV of the appellant’s amended wrongful death petition and for M. VanHolt on Count III of the petition are reversed and the causes remanded for further proceedings consistent with this opinion.

LOWENSTEIN and ULRICH, JJ., concur.

      . Summary judgment was entered against both VanHolt and his wife, Susan VanHolt. However, the appellant does not appeal the summary judgment for Susan VanHolt.

      . The summary judgments for the respondents were certified for early appeal by the trial court, pursuant to Rule 74.01(b), Missouri Rules of Civil Procedure, 2005.


source: Caselaw Access Project

author: LAWRENCE E. MOONEY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Timothy M. PROSSER, Defendant/Appellant.
    No. ED 85733.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 6, 2006.
    Application for Transfer Denied April 11, 2006.
    Ellen H. Flottman, Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The question presented for our determination is whether, under Missouri’s recently adopted bifurcated trial procedure for non-capital criminal cases, the issue of parole ineligibility is' a matter for the jury’s consideration. The defendant, Timothy M. Prosser, argues in the affirmative, and thus appeals the judgment entered upon his convictions, alleging the trial court erred in denying his requests to inform the jury that any sentence imposed for first-degree trafficking would be served without parole. The defendant argues that, by bifurcating trials, the legislature intended to allow juries to make more informed decisions about the appropriate punishment, and that, in accord with that intent, the jury had the right to know that any sentence imposed would be served without parole. We hold that there is nothing in the new bifurcation statute that justifies a departure from the settled law that issues of probation and parole are not for the jury’s consideration. Thus, we affirm.

Factual Background

The defendant was charged, in part, with first-degree trafficking, in violation of Section 195.222 RSMo.2000, for knowingly manufacturing ninety grams or more of a compound or mixture containing methamphetamine. As mandated by statute, the sentence for first-degree trafficking of ninety grams or more of methamphetamine is to be served without probation or parole. Section 195.222.8(2). The defendant sought during the punishment phase of trial to submit a modified jury instruction on the range of punishment or, in the alternative to such instruction, to be able to argue to the jury that the defendant would not be eligible for parole on any sentence imposed on the first-degree trafficking count. The trial court denied the defendant’s requests. The jury returned a verdict of guilty on the first-degree trafficking charge, as well as the charges of possession of a chemical, pseudoephedrine, with intent to create a controlled substance, and possession of paraphernalia with intent to make methamphetamine. The trial court sentenced the defendant, in accordance with the jury’s recommendation, to consecutive terms of life imprisonment for first-degree trafficking, seven years for possession of a chemical, and four years for possession of paraphernalia. The defendant appeals, alleging the trial court abused its discretion in denying the defendant’s motions and in refusing to inform the jury that any sentence imposed for first-degree trafficking would be served without parole.

Discussion

It is well-established law in Missouri that it is not error for the trial court to fail or refuse to inform the jury that no parole, probation, suspended sentences, or any other form of judicial clemency would be exercised in the event of conviction. State v. Rollins, 449 S.W.2d 585, 591 (Mo. 1970). “Issues such as parole, probation, suspended sentences, or any other form of judicial clemency are considered extraneous to the jury’s determination of guilt and punishment.” Deckard v. State, 110 S.W.3d 891, 895 (Mo.App.S.D.2003) citing State v. Massey, 60 S.W.3d 625, 628-29 (Mo.App.W.D.2001). (Emphasis added). These matters are of “no concern” to the jury. State v. Olinghouse, 605 S.W.2d 58, 69 (Mo. banc 1980); see also, State v. Cornett, 381 S.W.2d 878, 881-2 (Mo.1964).

The defendant acknowledges this established precedent, but contends that by bifurcating criminal trials, the Legislature must have intended that the jury have a broader range of evidence during the penalty phase of trial, thus allowing for an accurate and knowledgeable assessment of the appropriate punishment. The defendant argues that, in accord with the Legislature’s intent, the jury had the right to know that any sentence imposed for first-degree trafficking in this case would be served without parole.

This Court’s primary goal in construing a statute is to ascertain the intent of the legislature from the language used in the statute, and, whenever possible, give effect to that intent. In re Boland, 155 S.W.3d 65, 67 (Mo. banc 2005). The Legislature amended section 557.036 in 2003 and, in so doing, provided for bifurcated trials in non-capital criminal cases. Under this newly adopted procedure, if an offense is submitted to a jury, trial is held in two stages — a guilt stage and a punishment stage. Section 557.036.2 RSMo. (Cum. Supp.2004). If the jury at the first stage of trial finds a defendant guilty of the submitted offense, the second stage proceeds for the jury to assess and declare punishment. Section 557.036.3. This represents a change from prior law, which provided that the jury assess and declare the punishment in the same proceeding during which the defendant’s guilt was found.

The Legislature provided in the amended statute that evidence supporting or mitigating punishment may be presented during the punishment stage. Id. The Legislature then listed representative examples of what evidence may be presented, within the court’s discretion. Such evidence may include victim-impact evidence, as well as evidence of the nature and circumstances of the offense, and the history and character of the defendant. Id. It is clear from the nature of the examples that such evidence may be relevant to punishment but logically and legally irrelevant to guilt and, thus, kept from the jury’s consideration under the former unitary trial system. An examination of the new bifurcation statute leads this Court to conclude that the purpose of having a separate penalty phase in non-capital trials, as in capital trials, is to permit a broader range of evidence relevant to the appropriate punishment to be imposed. See State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998)(eapital trials).

There is scant reason to believe, however, that in amending the statute the Legislature intended the jury to be instructed differently than it had been prior to the statute’s amendment. The amended statute provides that “[t]he court shall instruct the jury as to the range of punishment authorized by statute for each submitted offense” and that “[t]he jury shall assess and declare the punishment as authorized by statute.” Section 557.036.3. These statutory provisions are substantially identical to the language of the statute prior to amendment. Although we acknowledge that a jury is best-equipped to assess and declare punishment when it is accurately informed as to both the facts of the case and the law to be applied, we see nothing in the new bifurcation statute that justifies a departure from the settled law that issues of probation and parole are not for the jury’s consideration. If the Legislature intended such a significant departure from established practice to be accomplished by the bifurcation statute, surely it would have done so explicitly. Therefore, we hold that it was not error for the trial court to refuse to inform the jury that any sentence imposed for first-degree trafficking would be served without parole. Point denied.

Judgment affirmed.

KATHIANNE KNAUP CRANE, P.J., and BOOKER T. SHAW, J., concur.

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

      . The defendant was also charged with possession of a chemical, pseudoephedrine, with intent to create a controlled substance, section 195.420; possession of paraphernalia with intent to make methamphetamine, section 195.233; possession of a chemical, red phosphorous, with intent to create a controlled substance, section 195.420; and possession of a chemical, iodine, with intent to create a controlled substance, section 195.420.

      .The defendant raises a total of four allegations of trial-court error. We summarily deny three of these claims and find that no jurisprudential purpose would be served by an exposition of the facts and law. Rule 30.25(b). The.parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

      .Section 557.036.3, as amended in 2003, provides:
      If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim’s family and others, the nature and circumstances of the offense, and the history and character of the defendant. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. The court shall instruct the jury as to the range of punishment authorized by statute for each submitted offense. The attorneys may argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The jury shall assess and declare tire punishment as authorized by statute.

      . All further statutory references to Section 557.036 are to RSMo. (Cum.Supp.2004).

      . The second stage of trial does not proceed in certain exceptions, as set forth in Section 557.036.4. That section provides as follows:
      A second stage of the trial shall not proceed and the court, and not the jury, shall assess punishment if:
      (1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or
      (2) The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, RSMo, a persistent sexual offender as defined in section 558.018, RSMo, or a predatory sexual offender as defined in section 558.018, RSMo.

      . Before 2003, Section 557.036 provided as follows:
      2. The court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict....


author: ROBERT G. ULRICH, Judge.

text:
    STATE of Missouri, Respondent, v. Fred E. CROMER, Appellant.
    No. WD 64674.
    Missouri Court of Appeals, Western District.
    Dec. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied April 11,2006.

      Irene C. Earns, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Judge.

Fred E. Cromer appeals his convictions of two counts of possessing chemicals with the intent to manufacture methamphetamine, section 195.420, two counts of possession of drug paraphernalia with the intent to manufacture methamphetamine, section 195.233, one count of possession of pseudoephedrine, section 195.246, RSMo Cum Supp.2001, and one count of manufacturing a controlled substance, methamphetamine, section 195.211. Mr. Cromer’s sole point on appeal is that the trial court erred in overruling his motion to suppress and admitting over his objection evidence of items seized from his garage. Mr. Cromer claims the police arrested him in his home without consent or the presence of exigent circumstances and that the subsequent consent to search was not voluntary as it was the product of his unlawful seizure, all in violation of the Fourth Amendment, the Fourteenth Amendment, and Article I, Section 15 of the Missouri Constitution. Mr. Cromer’s point is partially granted, and the judgment of convictions is reversed and remanded for a new trial.

Facts

On December 7, 2001, Lt. Howard Judd of the Buchanan County Drug Strike Force received a tip from a confidential informant that Christopher Allen Barker was involved with a man named Fred in the making of methamphetamine. The informant told Lt. Judd that he had been to an address in St. Joseph, Buchanan County, Missouri, within the past couple days and had observed what he or she believed to be a methamphetamine lab and the finished product of methamphetamine. The informant further told Lt. Judd that Fred lived with a woman named Donna, but did not know Fred or Donna’s last name. Finally, the informant gave Lt. Judd a description of the vehicles driven by Donna, Fred, and Mr.'Barker and gave Lt. Judd and Lt. Shawn Collie, another Strike Force member, directions regarding how to get to the address where the lab was located. From this description, Lt. Judd and Lt. Collie determined that the residence was located on Riverview Drive in St. Joseph, Missouri.

After receiving this tip, Lt. Judd and Lt. Collie discussed the information with the rest of the Strike Force. Sgt. Tiger Parsons, another Strike Force member, informed the other officers that he knew Fred and Donna. He identified them as Fred E. Cromer and Donna L. Todd. Upon further checking, the Strike Force learned that Mr. Barker was currently on parole for possession of methamphetamine. The officers spoke with Mr. Barker’s parole officer, who stated that Mr. Barker gave his current address as 722 Riverview in St. Joseph. A CAD check revealed that Fred E. Cromer and Donna L. Todd were also residents of 722 Riverview in St. Joseph. Sgt. Parsons further informed the Strike Force that he had information from the past that Mr. Cromer and Ms. Todd were methamphetamine users and that Mr. Cromer was a methamphetamine cook. Sgt. Parsons told the other officers that, based on his past dealings with Ms. Todd, he believed that if he approached her she would allow the officers to search the residence.

At approximately 10:30 that night, Sgt. Parsons, Lt. Collie, Lt. Judd, and Investigator Tammy Mann drove to the neighborhood, parked the Strike Force vehicles a block or two away from the residence located at 722 Riverview Drive, and walked to the residence. They planned to do a “knock and talk,” i.e., knock on the front door of the residence and ask for authorization to enter and search the residence. They were dressed in civilian clothes. Sgt. Parsons and Lt. Collie knocked on the residence’s front door. Lt. Judd and Investigator Mann went into the backyard in case the occupants attempted to flee; the officers believed that Mr. Barker had a history of running from the police.

Holly Todd, Mr. Cromer, and Ms. Todd’s twelve-year-old daughter answered the door. Sgt. Parsons asked Holly if her parents were home; she told him that her mother was at work and her father was working on a car in Savannah, Missouri. Sgt. Parsons asked Holly if they could come inside and she allowed them to enter the home. Once inside, he obtained Ms. Todd’s work phone number from Holly. The officers called Jesse Todd, Holly’s fourteen-year-old brother, into the living room. Without consent, they quickly walked through the rest of the house to determine whether other people or hazardous chemicals were present, and, finding none, then waited in the living room. Mr. Cromer has not argued that this search violated his rights. Lt. Judd and Investigator Mann were informed by radio that the other two officers were inside; they then entered the house through the back door.

Sgt. Parsons called Ms. Todd at work and told her that the police were at her house due to a citizen’s report and were concerned about a situation there. He asked that she come home immediately. Ms. Todd told him that she would seek permission from her boss to go home, and she would call him back. Ms. Todd called and informed Sgt. Parsons that she could leave work in about twenty minutes. Sgt. Parsons asked for permission to search the house, and Ms. Todd replied that the officers could search the house but not until she arrived at the home. Ms. Todd told the officers they could wait inside the residence until she arrived.

Lt. Judd left the living room and entered Ms. Todd’s bedroom, which was at a corner of the house, where he could observe events occurring at the front of the house. He saw a car back into the driveway and notified the other officers of this event with his radio. Mr. Cromer and Mr. Barker were in the vehicle, although the officers only knew two men were in the car and did not yet know their identities. Mr. Cromer and Mr. Barker sat in the car for fifteen to twenty minutes; they then took items from the trunk of the car and carried them toward the garage attached to the house. Lt. Judd observed that the items were a white five-gallon bucket and a couple of bags. He could not see what was in the bucket or the bags.

Lt. Judd advised the other officers when the two men had exited the car. Lt. Collie and Sgt. Parsons left the living room and went into Jesse’s room, which led to the garage through a connecting door. The officers heard the overhead garage door open and then close behind Mr. Cromer and Mr. Barker. Upon hearing the garage door close, Lt. Collie and Sgt. Parsons opened the connecting door and stepped into the garage. Both Lt. Collie and Sgt. Parsons testified that they did not know the identities of the two men in the garage at that time. Neither Lt. Collie nor Sgt. Parsons could identify Mr. Barker, and only Sgt. Parsons could identify Mr. Cromer. Sgt. Parsons did not see Mr. Cromer to identify him until both he and Lt. Collie were in the garage with Mr. Cromer and Mr. Barker.

Mr. Barker had several backpacks in his hands, and Mr. Cromer was carrying two five-gallon plastic buckets. The officers testified that they were concerned about their safety as they could not see Mr. Cromer and Mr. Barker’s hands, they understood Mr. Barker to have a history of violence including weapons possession, and the officers believed the men might be holding hazardous chemicals related to methamphetamine production. The officers ordered the two men to put their hands on their heads and then patted both men down for weapons. Lt. Collie observed plastic bottles containing a clear liquid on a bed of dry ice in one of the buckets Mr. Cromer had been carrying and knew this to be a step in the manufacture of methamphetamine. Lt. Judd entered the garage and also observed the buckets. The garage smelled of ether and anhydrous ammonia, both of which the officers knew are used in the production of methamphetamine.

Mr. Cromer and Mr. Barker were then arrested. After visually inspecting the chemicals in the bucket to ensure that they were stable, the officers left things where they were on the garage floor; they did not look in the backpacks. The officers determined to wait until they had proper equipment before going near the potentially hazardous chemicals. Lt. Judd took Mr. Cromer to Ms. Todd’s bedroom, and Sgt. Parsons took Mr. Barker into the living room in order to question them separately. Lt. Judd attempted to obtain Mr. Cromer’s consent to a search, but he refused at that time, stating that it was not his residence. When Mr. Cromer was informed that his Probation and Parole officer had stated Mr. Cromer’s address was 722 Riverview Drive, Mr. Cromer responded that it was his ex-wife’s house and admitted that he stayed there. Mr. Cromer denied knowing what was in the buckets and stated that he was just carrying them for Mr. Barker.

Ms. Todd arrived home thirty minutes to an hour after Mr. Cromer and Mr. Barker were taken from the garage. Ms. Todd did not consent to a search of the residence when she first arrived home. She was concerned about Mr. Cromer, whom she considered upset and confused. She asked and was permitted to go into the bedroom where Lt. Judd was questioning him. Sgt. Parsons joined them there a few minutes later, and Ms. Todd consented to a search of the home. Shortly thereafter, Mr. Cromer consented to a search. During the search, neither Ms. Todd nor Mr. Cromer revoked their consent.

Lt. Collie retrieved protective gear from one of the Strike Force vehicles, and he and Lt. Judd returned to the garage after Ms. Todd consented to a search. Lt. Judd and Investigator Mann cataloged the evidence as it was found. Inside the bag Mr. Barker had carried into the garage, the officers found methamphetamine in chunky form. The bucket carried in by Mr. Cromer contained dry ice, muriatic acid, and methamphetamine not yet distilled from liquid form. The inventory also listed “trash” — the remnants of manufacturing methamphetamine, “bubblers” — small pop bottles that had been used with a mixture of acid and salt, empty cans of starting fluid, starting fluid, ephedrine, a coffee grinder with white residue, acetone, face masks, gloves, coffee filters, an electric skillet, a portable scale, glass baking dishes, lithium batteries, and camp stove fuel. Lt. Collie and Sgt. Parson’s searched the house but found nothing of evidentiary value. All of the items inventoried and later admitted into evidence came from the garage.

After he was charged, Mr. Cromer filed a motion to suppress the evidence seized during the search. Following a suppression hearing, the court denied the motion. Samples were extruded from various exhibits and were submitted to the Missouri Highway Patrol for analysis. The Patrol chemist testified at trial that tests performed on three exhibits showed a mixture of methamphetamine and pseudoephedrine totaling 302 grams. Another exhibit contained 22 grams of methamphetamine. Mr. Cromer waived his right to a jury trial, the case proceeded to conclusion, and the court found him guilty. He was sentenced to fourteen years imprisonment for the manufacture of a controlled substance and five sentences of four years imprisonment for the other offenses pertaining to the incident. The four year terms are concurrent but are consecutive to the fourteen year sentence, for a total sentence of eighteen years imprisonment. This appeal followed.

Standard of Review

Review of a “trial court’s decision to deny a motion to suppress is limited to a determination of whether there is substantial evidence to support the decision.” State v. Mahsman, 157 S.W.3d 245, 248 (Mo.App.E.D.2004). The facts and any reasonable inferences drawn from the facts are viewed in the light most favorable to the trial court’s decision and any evidence or inferences to the contrary are disregarded. Id. Deference is given to the trial court’s factual findings and credibility determinations. State v. Newberry, 157 S.W.3d 387, 397 (Mo.App.S.D.2005). The ruling will be reversed only if it is clearly erroneous. Mahsman, 157 S.W.3d at 249. The trial court ruling is clearly erroneous if this court is left “with a definite and firm belief a mistake has been made.” State v. Rowland, 73 S.W.3d 818, 821 (Mo.App.S.D.2002). Nevertheless, whether the trial court properly applied Fourth Amendment precepts must be considered. Mahsman, 157 S.W.3d at 249. Testimony from both the suppression hearing and the actual trial is considered because the defendant timely moved to suppress the evidence and then timely objected to its admission at trial. State v. Simmons, 158 S.W.3d 901, 906 n. 2 (Mo.App.S.D.2005). When “there is little or no dispute about the facts, the question of whether the Fourth Amendment has been violated is a question of law and is therefore reviewed de novo.” Id. at 907.

Parties’ Arguments

In his sole point on appeal, Mr. Cromer claims that the seizure of his person inside his garage violated his Fourth Amendment rights because the police had neither a warrant for his arrest nor a search warrant and no exceptions to the warrant requirement existed when police officers entered the garage. Both Mr. Cromer and the State agree that if the police officers were in the garage lawfully, they could have legally seized Mr. Cromer under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the contraband in the buckets was in his possession, was in plain view, and constituted an exception to the warrant requirement. Under the plain view exception to the warrant requirement, once officers are lawfully in a place, any evidence that is readily observable and immediately recognizable as evidence of a crime may be seized without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564, (1971); State v. Bibb, 922 S.W.2d 798, 802 (Mo.App.E.D.1996). Thus, the only disputed issue is whether the officers were inside the garage lawfully. Mr. Cromer asserts that, although the officers may have been inside the living room lawfully, they needed a warrant or an exception to the warrant requirement to enter the garage.

The State claims that the exigent circumstance exception to the warrant requirement applies. It argues that taking the time to obtain a warrant would have endangered the fives of the four officers and two children waiting inside the living room. This danger, according to the State, stems from Mr. Barker’s history of violence and the - dangerous nature of chemicals used in the production of methamphetamine. Thus, the State claims exigent circumstances allowed the warrant-less entry into the garage and, once there, evidence of criminal conduct was in plain view. Further, the State argues that the rest of the evidence found in the garage was located only after Ms. Todd consented to a search, and Ms. Todd’s consent to search the house was freely and voluntarily given.

Entry into the Home

Lt. Collie testified that the officers went to Ms. Todd’s residence to do a “knock and talk.” He explained at trial that a “knock and talk” is employed when law enforcement officers receive information relating to illegal drug activity that they believe has merit but is insufficient to obtain a warrant; they go to the residence, knock on the door, talk to whomever answers the door, try to identify who is there, and try to obtain consent to search the residence. Prior cases have examined and approved the police technique called “knock and talk.” State v. Kriley, 976 S.W.2d 16, 22 (Mo.App.W.D.1998). Law enforcement officers are legally permitted to knock on the door of a private residence and seek consent to enter and search without probable cause or a warrant. Id. A suspect’s consent to law enforcement’s entry into his or her home to permit officers to search or make an arrest without a warrant does not violate the law. State v. Rank, 849 S.W.2d 230, 232 (Mo.App.W.D.1993)(citing State v. Peters, 695 S.W.2d 140,144 (Mo.App.W.D.1985)).

When the officers knocked at the front door of the residence the informant had mentioned, Holly Todd, twelve-year-old daughter of Ms. Todd and Mr. Cromer, answered the door, informed them that her parents were absent, and consented to the officers’ entry. All of the officers testified that they were aware that Holly and Jesse were minors. Although no bright line rule exists regarding whether a minor may consent to a search of his or her parent’s home, in this case Holly Todd consented only to the police officers’ entry into the home. See Abdella v. O’Toole, 343 F.Supp.2d 129, 135-38 (D.Conn.2004)(noting the ongoing discussion in the courts regarding whether a minor may consent to a search of parent’s home); Holman v. State, 816 N.E.2d 78, 81-82 (Ind.Ct.App.2004)(discussing various state approaches to allowing minors to consent to searches of parent’s home). A minor can consent to entry of the police into the common areas of the shared home. See State v. Tomlinson, 247 Wis.2d 682, 635 N.W.2d 201, 208-09 (Ct.App.2001); State v. Tomlinson, 254 Wis.2d 502, 648 N.W.2d 367, 376-77 (2002)(noting the various states that allow minors to consent to entry); U.S. v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230-31 (10th Cir.l998)(dis-cussing the federal approaches to allowing minors to consent to police entry). Thus, the officers’ entry into the home upon Holly Todd’s consent to enter was permissible.

After Ms. Todd received permission from her employer to go home, she informed the police officers that she would arrive home in about twenty minutes. Ms. Todd told Sgt. Parsons that the officers could wait inside the residence until she arrived. She stated that she would consent to the requested search but only when she was present. If consent is given, law enforcement must remain within the “scope of the consent.” State v. Garcia, 930 S.W.2d 469, 472 (Mo.App.S.D.1996). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness, i.e., what the typical person would have understood by the exchange between the officer and the suspect.” State v. Hofmann, 895 S.W.2d 108, 114 (Mo.App.W.D.1995). When Sgt. Parsons concluded his phone conversation with Ms. Todd, the scope of Ms. Todd’s consent was limited to the officers waiting for her arrival, and it did not include searching the home or entering any room except that where the officers were received when they entered the house. Yet, Lt. Judd went into her bedroom to permit his observation of anyone approaching the front of the house. He did not have permission to enter Ms. Todd’s bedroom.

Seizure of Mr. Cromer in the Garage

Lt. Collie testified that Lt. Judd conducted surveillance by watching from Ms. Todd’s bedroom window to protect and maintain officer safety. He testified that the officers did not want to be startled or startle anyone who happened to enter the residence. When the car with Mr. Cromer and Mr. Barker backed into the driveway, Lt. Judd notified the other officers. Lt. Judd watched the two men sit in the car for fifteen to twenty minutes, then get out of the car and take some items from the trunk. Lt. Judd informed the other officers when the two men began walking toward the garage with the items. At that time, according to Sgt. Parson’s testimony, he and Lt. Collie proceeded to the door that connected Jesse’s room with the garage, which was closed. The two police officers opened the door and waited. They could not see inside the garage when standing in the open doorway, but they could hear events occurring in the garage after the overhead garage door was opened and the two men entered the garage. Lt. Collie testified that he and Sgt. Parsons waited until after the two men had entered the garage and closed the overhead garage door before they entered the garage because they wanted to be in close proximity to the two men when they confronted them. Upon entering the garage, the officers observed what Mr. Cromer and Mr. Barker were carrying, recognized it as contraband, and arrested the men.

The Fourth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 15 of the Missouri Constitution guarantee the right of citizens to be free from unreasonable searches and seizures. Simmons, 158 S.W.3d at 906 (citing State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002)). The Fourth Amendment is applicable to the states through the Fourteenth Amendment due process clause. State v. Werner, 9 S.W.3d 590, 599 (Mo. banc 2000). Missouri’s prohibition against unreasonable searches and seizures is coextensive with the protection provided by the Fourth Amendment. Ashworth v. City of Moberly, 53 S.W.3d 564, 579 (Mo.App.W.D.2001). The purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Id. (quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935 (1967)). Arresting a person in his or her home without a warrant, even if the law enforcement officer has probable cause, is impermissible under the Fourth Amendment unless proper consent is granted to enter the home or exigent circumstances exist. State v. Adams, 791 S.W.2d 873, 877 (Mo.App.W.D.1990); State v. Murray, 744 S.W.2d 762, 771 (Mo. banc 1988), cert, denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988).

Exigent Circumstances

The State asserts that exigent circumstances existed justifying the officers’ entry into the garage and Mr. Cromer’s subsequent arrest. A search or seizure that occurs on a person’s premises without a warrant is presumptively unreasonable. Simmons, 158 S.W.3d at 906. The state can overcome this presumption by demonstrating that the search or seizure “falls within one of a carefully defined set of exceptions, many of which are based on the presence of exigent circumstances.” Id. These exigent circumstance exceptions include pursuing a fleeing felon, preventing the imminent destruction of evidence, preventing a suspect’s escape, or mitigating the risk of danger to law enforcement or other persons inside or outside of the dwelling. Id. If exigent circumstances justified entry into the garage and the police inadvertently observed the drug paraphernalia in plain view, the evidence could have been seized without a warrant. State v. Marquess, 988 S.W.2d 123, 125 (Mo.App.W.D.1999)(citing State v. Taylor, 857 S.W.2d 482, 485 (Mo.App.S.D.1993), cert, denied, 510 U.S. 1056, 114 S.Ct. 719, 126 L.Ed.2d 683 (1994)).

There is no absolute test for exigent circumstances; the determination that exigent circumstances are present is made on a case-by-case basis. State v. Glisson, 80 S.W.3d 915, 919 (Mo.App.S.D.2002). “In assessing circumstances to determine if they were exigent, the circumstances are evaluated on the basis of how they would have appeared to prudent, cautious and trained officers.” Id. “The justification for the exigency exception is time related, i.e., there is a need that will not brook the delay incident to obtaining a warrant.” Simmons, 158 S.W.3d at 908. Exigent circumstances “exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk the destruction of evidence.” Mahsman, 157 S.W.3d at 249.

Several factors are considered when deciding whether exigent circumstances exist [and thus justify warrantless arrests and warrantless searches]. They include: (1) that a grave offense is involved, particularly a violent crime; (2) the suspect is reasonably believed to be armed; (3) a clear showing of probable cause to believe the suspect committed the offense; (4) strong reason to believe the suspect is in the premises to be entered; (5) a likelihood the suspect will escape if not swiftly apprehended; (6) the entry, though not consented, is made peaceably.

State v. Varvil, 686 S.W.2d 507, 512 (Mo.App.E.D.1985)(citing State v. Timmons, 574 S.W.2d 950, 955 (Mo.App.1978)).

The State argues that the exigent circumstance that justified the officers’ entry into the garage was their fear for their safety and the safety of the two children inside the home. This fear, the State asserts, stemmed from the officers’ inability to see what was occurring in the garage, Mr. Barker’s history of violence and use of weapons, and the officer’s knowledge that some of the chemicals used to manufacture methamphetamine are volatile and highly explosive. While all this may be true, the officers could justify their presence only because they had been granted limited consent, and to determine whether circumstances enhanced their authority to exceed that consent this court is required to consider what the officers had reason to believe when they placed themselves in a location within the house and when they entered the garage. State v. Smith, 926 S.W.2d 689, 693 (Mo.App.S.D.1996). Facts learned after the entry into the garage cannot justify the entry. Id. At the time Lt. Collie and Sgt. Parsons departed the living room, and placed themselves in a location to enter the garage and entered the garage, they did not know who the men were or what they carried into the garage. Lt. Judd testified that when he was watching the two men in the driveway, he did not know their identities. Lt. Collie testified that, when he entered the garage, he and Sgt. Parsons did not know the identity of the two men inside the garage. He further testified that, based upon the information he had, he believed the only residents of the home were Mr. Cromer, Ms. Todd, and the two children, not Mr. Barker.

The question now presented is whether the law enforcement officers could reasonably assume that the two men were Mr. Cromer and Mr. Barker and that the materials they carried were methamphetamine or used to manufacture methamphetamine. The informant, which without additional information about the informant or the validity of prior information provided by him simply constituted a tipster, mentioned the residence’s address and Mr. Cromer and Mr. Baker’s names, and the two men entered the garage as though they freely accessed the premises. None of the officers stated that they assumed or thought that the two men were Mr. Cromer and Mr. Barker, however. When explicitly asked who the two men were, the officers stated that they did not know at that time. Further, Lt. Collie did not think Mr. Barker lived at the house as he testified that he believed only Mr. Cromer, Ms. Todd, and the two children lived there. The officers did not think that the two men were Mr. Cromer and Mr. Barker.

The officers were lawfully inside the living room because their entry into the residence had been in response to the consent of one with authority to admit them. The consent to enter did not extend to entering any other room or the garage. Their activity and presence in the home was even explicitly limited when Ms. Todd conversed by telephone with Sgt. Parsons. Neither did events that occurred after entry present exigent circumstances to justify the law enforcement officers’ entry into any other place in the house. And absent other circumstances, not even was a “walk through” of the house justified to determine the absence of dangerous conditions or other persons simply because consent to enter the premises had been granted. The police officers were present in the living room because they had been permitted to enter only it. They had no other legal basis to justify their presence in the residence. They were not given consent to enter the garage, to proceed to a position to permit entry into the garage, or to Ms. Todd’s bedroom, and no exigent circumstances occurred to change that. They were not pursuing a fleeing felon, and evidence of a crime was not being destroyed. Mr. Cromer and Mr. Barker were not aware the police were inside the house; they had no motive to destroy evidence, and the police did not believe evidence was being destroyed. As discussed, supra, neither did the officers have a reasonable basis to believe that they or other persons were in danger necessitating their entry into the garage, the only other category of exigent circumstances. The officers had no reasonable belief that the men were armed, and before entering the garage the officers were without probable cause to believe the men had committed a crime. Thus, no exigent circumstances existed to justify the law enforcement officers’ entry into any part of the residence except the living room, and their “walk through” entry into Ms. Todd’s bedroom to better observe anyone approaching the house, their placing themselves at the location to enter the garage, and their entry into the garage were in violation to the Fourth Amendment, the Fourteenth Amendment, and Article I, Section 15 of the Missouri Constitution. See, e.g., State v. Varvil, 686 S.W.2d 507 (MoApp. E.D. 1985)(no exigent circumstances where suspect was inside building and had been there for several hours, the entire area was staked out and there was little likelihood suspect could have escaped, the police had time to obtain warrant, and there were no victims in need of help inside the building, even though suspect was armed); State v. Diaz, 134 N.H. 662, 596 A.2d 725 (1991)(no exigency justifying police entry into motel room where defendant was found at site of drug deal, returned with police to hotel room to get identification, and spoke in foreign language to other occupant of room); U.S. v. Garza, 125 Fed.Appx. 927 (10th Cir.2005)(no exigency justifying police entry into bathroom where police went to motel to do “knock and talk” because of suspicion of drug trafficking, woman answered door and invited them inside, police heard bathroom door shut and woman said her boyfriend was in the bathroom, and man in bathroom would not answer police).

The legal situation the police officers experienced in this case is not unlike the hypothetical where the police department sends an officer into a neighborhood to foster goodwill and to improve community relations by knocking on a door and inviting people present to a social function sponsored by the police department. The officer knocks at the door of a resident and a person answers and invites her inside into the front living room. While inside talking to the person about the social event, the police officer notices a car being driven into the driveway. Its occupants, two men, take some unidentifiable items from the trunk of the vehicle and enter the garage. Few would dispute that the law would not permit the law enforcement officer in that situation, on her own initiative and with no more authority, to move from the living room through the house to entry to the garage and to enter the garage to see what the men are doing. The uncorroborated informant’s tip and Mr. Barker’s known history of violence do not grant any greater authority under the facts presented in this case than the police officer attempting to create goodwill would posses in the hypothetical. In both situations, the law enforcement officers were permitted entry into a restricted area of the residence by the consent of a resident. In neither situation did law enforcement authorities have probable cause and no exigent circumstances existed to justify entry into the residence. And in neither did the situation change giving greater authority while the officers were inside the residences. The absence of a warrant or probable cause along with absence of exigent circumstances legally justifying the police officers movement about the house in search of a person or evidence of a crime, which would include authority to control the environment for their own safety and that of others, is precisely why the officers did a “knock and talk.”

Protective Sweep

The State’s brief frequently mentions that the officers were conducting a protective sweep of the residence after the initial entry into the house. “A protective sweep is a ‘quick and limited search of the premises, incident to the arrest and conducted to protect the safety of police officers and others.’ ” Mahsman, 157 S.W.3d at 250 (quoting Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). There can be no protective sweep when “police enter a home where no one is under arrest and there is not even probable cause to arrest anyone.” Id. (citing United States v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir. 2002)). A protective sweep is “justified in connection with an in-home arrest if an officer reasonably believes that the area to be swept harbors an individual posing a danger to those at the arrest scene.” Rut-ter, 93 S.W.3d at 725 (quoting United States v. Boyd, 180 F.3d 967, 975 (8th Cir.1999)). A protective sweep “occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime.” State v. Roberts, 957 S.W.2d 449, 453 (Mo.App.W.D.1997) (quoting Buie, 494 U.S. at 333, 110 S.Ct. ,1093). “The critical inquiry is whether a reasonably prudent person in similar circumstances would be warranted in the belief that his safety or that of others was in danger.” State v. Howes, 150 S.W.3d 139, 144 (Mo.App.E.D.2004). The officer’s reasonable belief “must be based on specific and articulable facts.” Rutter, 93 S.W.3d at 725. The sweep may not be an in-depth search. It must only be a cursory inspection of spaces where a person might be hiding and must last no longer than necessary to dispel the suspicion of danger. Id.

At the time the officers entered the garage, there had not yet been an arrest. Thus, their walking through the house upon entry by consent cannot be construed a legal protective sweep. Missouri cases seem to allow a protective sweep without an arrest, but these cases reveal that what the court calls a protective sweep is really the officers entering pursuant to exigent circumstances. See State v. Glisson, 80 S.W.3d 915 (Mo.App.S.D.2002)(extreme exigent circumstances justified protective sweep without an arrest); State v. Rowland, 73 S.W.3d 818 (Mo.App.S.D.2002)(protective sweep allowed without prior arrest because police were searching for victims).

Consent to Search the Home

The State further contends that the evidence was admissible because Ms. Todd consented to a search of the home. In addition to the exigent circumstance exception to the warrant requirement, “a warrantless search conducted with proper consent, voluntarily given, is constitutionally valid.” State v. Smith, 134 S.W.3d 35, 37 (Mo.App.E.D.2003). This is true even if “the search is not otherwise supported by probable cause or a reasonable suspicion of criminal activity.” Garcia, 930 S.W.2d at 472. “ ‘Consent is freely and voluntarily given if, considering the totality of all the circumstances, ... the objective observer would conclude that the person giving consent made a free and unconstrained choice to do so.’ ” State v. Faulkner, 103 S.W.3d 346, 355 (Mo.App.S.D.2003)(quoting State v. Sullivan, 49 S.W.3d 800, 813 (Mo.App.W.D.2001)). “ ‘A court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have been communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ ” Id. (quoting State v. Solt, 48 S.W.3d 677, 680-81 (Mo.App.S.D.2001)). Factors used to determine whether consent to a search was given voluntarily include, but are not limited to: (1) the number of officers present; (2) the degree to which the officers emphasized their authority; (3) whether weapons were displayed; (4) whether the officers were misleading or fraudulent; and (5) evidence regarding what was said or done by the person giving the consent. Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814, 822 (Mo.App.E.D.2002). The State has the burden of proving consent was voluntarily and freely given. Faulkner, 103 S.W.3d at 355. Consent cannot be coerced, either implicitly or explicitly. State v. Earl, 140 S.W.3d 639, 641 (Mo.App.W.D.2004).

Ms. Todd initially consented by telephone to a search of the home but insisted that the search not occur until she arrived home from work. When Ms. Todd arrived home, she did not immediately consent to the search. Instead, she was concerned about her children and Mr. Cromer, who she believed was confused and upset and being questioned in her bedroom. She spoke with her children and then asked to speak with Mr. Cromer. She was allowed to go into the bedroom where he was being questioned. After talking with Mr. Cromer, Ms. Todd verbally consented to a search of the residence, which included the garage.

Ms. Todd testified that she was afraid that if she did not cooperate with the police that her children would be taken away from her and placed in the custody of the Department of Family Services (DFS). According to her, this fear motivated her consent and made it involuntary. Ms. Todd further testified that when she returned home, the officers never threatened her with anything, never said they were going to arrest her, and never said that DFS would take her children away if she did not consent to a search. No evidence shows that when Ms. Todd consented to the search she was mistreated or inappropriately intimidated by law enforcement officers. Her fear alone, without more, is not enough to render her consent involuntary to an objective observer.

When Ms. Todd arrived home, she spoke with Mr. Cromer and her children. Having been fully apprised of the situation, she chose to consent to a search of her home. As noted, supra, there was no indication of police coercion or intimidation. Ms. Todd’s constitutional rights had not been violated, and the illegal seizure of Mr. Cromer did not impact on the voluntariness of her consent. She consented to a search of her home, her primary residence. Because it was an area over which she had authority, she could legally consent to a search even if Mr. Cromer would not or had not. See State v. Smith, 850 S.W.2d 934, 941 (Mo.App.S.D.1993); State v. Smith, 966 S.W.2d 1, 7 (Mo.App.W.D.1997). Her consent was valid and the evidence seized by the police in the subsequent search of the home was properly admitted at trial.

The illegal entry into and seizure of Mr. Cromer in the garage by the police, however, does require that the items carried into the garage by Mr. Barker and Mr. Cromer be suppressed. Despite the fact that the items then being carried by Mr. Cromer and Mr. Barker were in plain view, the police were illegally in the garage at the time they viewed the items. The subsequent seizure of Mr. Cromer breached the Fourth Amendment, as the police had neither a warrant nor an exception to the warrant requirement at the time the arrest occurred. The evidence carried into the garage by Mr. Barker and Mr. Cromer was in the plain view of law enforcement only because law enforcement violated Mr. Cromer’s constitutional rights.

Ms. Todd’s subsequent consent to search the home does not render the evidence carried into the garage admissible. Without the illegal interruption of the law enforcement officers, what Mr. Barker and Mr. Cromer would have done with the items they carried into the garage is unknown. Any number of scenarios is plausible; perhaps had Mr. Barker and Mr. Cromer left the items in the garage and entered the house and observed the police officers present they would have left through the garage with the items covered. The items carried into the garage by Mr. Barker and Mr. Cromer were still present in the garage at the time the law enforcement officers searched the residence pursuant to Ms. Todd’s valid consent because the officers illegally entered the garage, recognized the items as drug paraphernalia, ordered Mr. Barker and Mr. Cromer to put the items down on the garage, floor, illegally seized Mr. Barker and Mr. Cromer, and prevented them from moving the items elsewhere. The law en-forcemént officers found the items on the garage floor when they were conducting the consent search because that is where the officers ensured the items would be when they illegally entered the garage and seized Mr. Barker and Mr. Cromer. If the guarantees of the Fourth Amendment are to have any meaning, the items carried into the garage must be suppressed.

The record is not clear regarding exactly what items were carried into the garage by Mr. Cromer and Mr. Barker, except for the two buckets of dry ice and a clear liquid, and what items were found elsewhere in the garage during the consent search. On remand, the trial court is instructed to make a finding regarding what evidence was carried into the garage by Mr. Barker and Mr. Cromer and what evidence was located elsewhere in the garage. It is further instructed to suppress the evidence carried into the garage by Mr. Barker and Mr. Cromer on the occasion of the seizure of the two men.

Conclusion

The seizure of Mr. Cromer in his garage was in violation of law. The officers did not have a warrant, no exigent circumstances existed, and they did not have permission to enter the garage. Because of this, the items carried into the garage by Mr. Barker and Mr. Cromer on this occasion must be suppressed as law enforcement officers were not legally in the garage when the items were in their plain view. However, Ms. Todd subsequently consented to a search of her home. This consent was valid and the evidence found in the garage during the course of this legal search, with the exception of the items carried into the garage by Mr. Barker and Mr. Cromer, was properly admitted at trial.

The motion to suppress should have been granted with respect to the evidence Mr. Barker and Mr. Cromer carried into the garage on the occasion of their seizure. The judgment of convictions is reversed and the cause is remanded for action consistent with this opinion and for a new trial.

All concur.

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

      . Investigator Tammy Mann later married Sgt. Parsons and testified as Investigator Parsons at trial.

      . Because Ms. Todd's consent was valid, this court need not address the effect of the illegal seizure of Mr. Cromer on his consent with respect to the search of the home.