author: PHILLIP R. GARRISON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Shawn D. DAGGETT, Defendant-Appellant.
    No. 26157.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 1, 2005.
    Rehearing Denied Aug. 23, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      John M. Albright, Daniel T. Moore, Poplar Bluff, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Shawn D. Daggett (“Appellant”) was charged, as a prior and persistent offender, with the class D felony of possession of drug paraphernalia with intent to use the paraphernalia in combination with each other to manufacture methamphetamine, pursuant to Section 195.233. Following his conviction by a jury, he was sentenced to four years imprisonment.

The facts of the case are as follows: Deputy Sheriff Craig Bohn (“Deputy Bo-lin”) was patrolling in Stoddard County, Missouri, during the night of July 24, 2003, and the early morning of July 25, 2003. At about 11:30 P.M. on July 24, he noticed a small, gray GMC pickup truck traveling east on U.S. Highway 60, west of Dexter, Missouri, cross the center line several times. He also noticed that the truck’s license plate light was not working. Deputy Bolin stopped the vehicle that was occupied by Appellant and Amy Guzman (“Guzman”).

Deputy Bohn told Appellant why he had stopped them, and asked Appellant where they were going. Appellant replied that he and Guzman were going to Saxton, Missouri to stay all night with a friend. Deputy Bohn testified that Appellant spoke with a nervous, shaky voice and that he noticed a propane cylinder without a valve sitting in the bed of the pickup truck. He also noticed a large brass valve sitting in the bed beside the cylinder. Deputy Bohn asked Appellant if he could search the vehicle and Appellant gave him permission to do so, but the search produced no additional items. When Deputy Bohn asked Appellant about the propane tank, Appellant told him that he had not had time to get the valve replaced on the tank. Deputy Bohn also asked about the brass valve, and Appellant stated that it was his father’s and that it had something to do with anhydrous ammonia, but he was not sure what. In responding to Deputy Bo-lin’s question about whether he thought the items were suspicious, Appellant told him that he knew that people used the items to steal anhydrous ammonia, but that he did not do that sort of thing. Deputy Bolin asked both Appellant and Guzman if they had come to Stoddard County to steal anhydrous ammonia, and both replied that they had not. He then told them that they were free to go.

Deputy Bolin continued his patrol on Highway 60, and about thirty minutes later arrived in Essex, Missouri. He regularly patrolled Essex because of thefts of anhydrous ammonia at the Ross Cotton Gin. As he approached the gin, he saw some headlights come on behind a building and saw a vehicle moving near the anhydrous ammonia storage area. Deputy Bo-lin turned around in a driveway and faced the opposite direction, so as to face the vehicle as it came toward him. The vehicle approached the intersection near where Deputy Bolin sat, stopped for an unusual length of time, and turned left. Deputy Bohn noticed that it was the same vehicle that he had stopped earlier, and he followed the truck as it made another turn and then stopped in the roadway. Deputy Bolin activated his emergency lights, got out of his vehicle, and noticed that Appellant was approaching his car. Although he told Appellant to go back and get into his vehicle, Appellant went back and stood by the driver’s side door. Guzman remained in the truck.

Deputy Bolin approached the truck and asked Appellant what he was doing stopped in the road. Appellant replied that he was looking for “Mary’s house.” He said that he thought she lived in Essex, but he was not sure where and he did not know her last name. Deputy Bolin noticed that the propane cylinder and the brass valve were still in the back of Appellant’s pickup truck. Appellant said, “Well, if this is about the tank and valve, I’m not — we weren’t going to steal anything. We weren’t going to do anything over there. And if you want to, you can just have that tank and valve and take it with you.”

Deputy Bohn returned to his car, contacted his dispatcher regarding the stop, and asked the dispatcher to contact Deputy Dennis Fowler (“Deputy Fowler”) of the SEMO Drug Task Force. Deputy Fowler arrived about fifteen minutes later. He recognized Appellant’s vehicle as one he had seen on May 7, 2003, in Butler County, Missouri, when he and Deputy Scott Johnston, a narcotics officer with the SEMO Drug Task Force, (“Deputy Johnston”) were serving an arrest warrant. Deputy Fowler noticed that the propane cylinder had the valve removed and testified that in his investigation of methamphetamine laboratories, he had seen many tanks similar to this one with the valves taken off. He also stated that he had seen many valves similar to the brass valve in the back of Appellant’s truck during his investigations and that those valves were used to capture anhydrous ammonia in a tank similar to the propane cylinder found in Appellant’s truck. He said that neither of these items could be used separately in the manufacture or production of methamphetamine. The items could be combined in that manufacture, however, by filling the tank with anhydrous ammonia and then screwing the valve into the top of the tank to prevent the anhydrous ammonia from evaporating. A tank such as that is used to store the anhydrous ammonia until it is time to “cook” the methamphetamine, at which time the valve can be removed to release the anhydrous ammonia. Typically, in order to steal anhydrous ammonia, a hose would be used to transfer it from the storage tank to the propane cylinder. No hose was found in Appellant’s possession or in the area, though Deputy Fowler said he does not always find hoses when someone is trying to steal anhydrous ammonia. There was no discoloration of the propane cylinder or the valve consistent with exposure to anhydrous ammonia, and there was no anhydrous ammonia found in the propane cylinder on the night of the stop. Appellant and Guzman were arrested.

Missouri Highway Patrolman Chris Graves (“Patrolman Graves”) testified that he spoke with Appellant on the afternoon of July 25, 2003. He advised Appellant of his Miranda rights before speaking with him, and Appellant stated that he understood his rights and agreed to speak with Patrolman Graves. Appellant informed Patrolman Graves that he and Guzman had a plan to steal anhydrous ammonia. Appellant stated that Guzman, with whom he was in love, was addicted to methamphetamine and that she wanted him to help her acquire some. He said they planned to steal anhydrous ammonia then trade it to a methamphetamine cook for some of the drug. Patrolman Graves also testified about the use of the propane cylinder and the valve in the manufacture of methamphetamine, stating that such tanks were commonly used to store and transport anhydrous ammonia, with the valve capping the tank. He testified that it would be possible, but not preferable, to obtain anhydrous ammonia using the propane cylinder without using a hose.

Finally, Deputy Johnston testified regarding his previous contact with Appellant. He described an incident in Butler County, Missouri, where Appellant and Guzman drove up to a residence while Deputy Johnston was there serving an arrest warrant. Deputy Johnston observed that a partial methamphetamine laboratory was in the back of Appellant’s truck at that time, including two glass jars containing a clear liquid (“seed jars”), an acid generator, and salt. He testified that these items are typically used in the manufacture of methamphetamine.

Appellant presents three points on appeal. We will set out his first point relied on verbatim as the State contends that Appellant makes arguments not included in this point.

The trial court erred in denying the motion for judgment of acquittal in that the law requires jury instructions to be supported by substantial evidence and instruction no. 5 required proof the Appellant was combining drug paraphernalia but the only paraphernalia the Appellant possessed was an LP tank consisting of a tank and valve.

Appellant was convicted under Section 195.233, which states:

1. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of sections 195.005 to 195.425.
2. A person who violates this section is guilty of a class A misdemeanor, unless the person uses, or possesses with intent to use, the paraphernalia in combination with each other to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues in which case the violation of this section is a class D felony.

The statute requires that for a class D felony, the paraphernalia must be possessed with intent to be used “in combination with each other to manufacture” methamphetamine. Id.

Jury Instruction No. 5 was the verdict directing instruction, patterned after MAI-CR (3d) 325.22 (1999) relating to Section 195.233, though modified to submit the unlawful possession of paraphernalia as a class D felony. It stated, in pertinent part:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about July 25, 2003, in the County of Stoddard, State of Missouri, [Appellant] possessed a propane tank and a connecting valve, and Second, that the propane tank and connecting valve were drug paraphernalia, and
Third, that [Appellant] knew or was aware of its presence and nature, and Fourth, that [Appellant] intended to use the propane tank and connecting valve in combination with each other to manufacture or prepare methamphetamine.
Then you will find [Appellant] guilty of possession of drug paraphernalia with intent to use.

Appellant argues that the propane cylinder and valve are not paraphernalia under the definition as those items are not used to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” See Section 195.233.1. He also contends that the propane cylinder and valve do not fall under the statutory definition of paraphernalia contained in Section 195.010(17), which is substantially similar to Section 195.233.1 and contains a non-exclusive list of items of paraphernalia. He argues that as the propane cylinder and valve are only used to store anhydrous ammonia, an ingredient in the manufacture of methamphetamine, and not used in the process of making methamphetamine, the items are, therefore, not paraphernalia under the definition.

The State argues that Appellant has not preserved his contention that the items do not constitute paraphernalia as he did not include it in his point relied on. It claims that Appellant’s point admits that the items are paraphernalia when it states “the only paraphernalia Appellant possessed was an LP tank consisting of a tank and valve.” It then argues that even if we were to consider this argument, the definition of paraphernalia would encompass the propane cylinder and valve.

Appellant, in his reply brief, contends that he has preserved his argument for review. He argues that the legal theory he advanced was the lack of substantial evidence to support the giving of Instruction No. 5 and that he can advance any reasoned theory under the facts to support his contention. He claims that there is no confusion caused by “leaving out the word ‘alleged’ in front of the word paraphernalia in the point relied on.”

We agree with the State that Appellant has not preserved for our review the portion of his argument that the cylinder and valve, whether a single item of paraphernalia or two items, do not fall under the definition of paraphernalia. His point relied on clearly states “but the only paraphernalia the Appellant possessed was an LP tank consisting of a tank and valve.” While Appellant argues that we can read into this statement that he meant to say alleged paraphernalia, the clear wording of his point does not make this apparent and admits that the propane cylinder and valve are paraphernalia, with his argument being that these are not separate items. We only consider arguments raised in the points relied on and do not consider arguments raised in the argument portion of the brief which are not encompassed by the points relied on. State v. Paxton, 140 S.W.3d 226, 231 n. 6 (Mo.App. S.D.2004). Furthermore, if we were to consider that Appellant had raised this argument in his point relied on, this point would then be in violation of Rule 84.04 in that it raises multiple, unrelated issues in the same point relied on. “ ‘Improper points relied on, including those that are multifarious, preserve nothing for appellate review.’” Carmack v. Carmack, 148 S.W.3d 321, 324 (Mo.App. S.D.2004) (quoting Stelts v. Stelts, 126 S.W.3d 499, 504 (Mo.App. S.D.2004)). He would be arguing, in the same point, that the propane cylinder and valve are not two pieces of paraphernalia, but one, and also that the cylinder and valve do not fall under the statutory definition of paraphernalia. We will, however, review the portion of Appellant’s argument properly preserved for review.

When an appellant challenges the sufficiency of the evidence to support a conviction, “we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all evidence and inferences to the contrary.” State v. Naasz, 142 S.W.3d 869, 875 (Mo.App. S.D.2004).

Appellant contends that Section 195.233.2 necessarily requires that there be at least two items of paraphernalia, otherwise there would be no meaning to the clause “in combination with each other.” He then contends that the propane cylinder and the valve are not separate items of paraphernalia, but one item of paraphernalia consisting of a cylinder and a valve used to transport one ingredient used in the manufacture of methamphetamine. He cites the fact that the State’s witnesses observed that neither item was useful by itself in support of his claim. The State argues that the evidence shows that the propane cylinder and valve are not a single item, but two separate items. It contends that the testimony shows that the valve was not the original valve for the propane cylinder and that the original valve had been removed.

The State’s witnesses testified that the propane cylinder in the back of Appellant’s truck had its original valve removed, leaving the cylinder open to the air. They also testified that a brass valve, not the original valve for the cylinder, was in the back of the truck. Appellant’s own statements to Deputy Bolin recognize that the cylinder is missing its original valve and that the brass valve in the truck had something to do with anhydrous ammonia and belonged to his father. Furthermore, several witnesses demonstrated how the two items could be combined by screwing the valve into the tank.

Though Appellant argues that the State’s witnesses’ testimony that the cylinder and valve have no separate use shows that they are in fact one item, there is no requirement in Section 195.233.2 that the combined items of paraphernalia be otherwise useful independent of each other in the manufacture of methamphetamine. The jury could have concluded from this evidence that the propane cylinder and valve were separate items. Appellant’s first point is denied.

In his second point, Appellant claims that the trial court erred in admitting Appellant’s statements to Patrolman Graves in that it did not first introduce independent proof of the corpus delicti. He further contends that as possession of a propane cylinder is not illegal, there was no corpus delicti aside from Appellant’s statements.

Patrolman Graves testified regarding Appellant’s statement as follows:

[Appellant] told me that he was in love with [Guzman], that she was addicted to methamphetamine and that she wanted to get some methamphetamine. She wanted him to help her get the methamphetamine. Their plan was to steal the anhydrous ammonia from the co-op, trade the anhydrous ammonia to a methamphetamine cook so they could receive methamphetamine for [Guzman],

Appellant claims that possession of the propane cylinder is not illegal and that no hose, which the officers testified would be necessary to transfer the anhydrous ammonia to the cylinder, was found. He also contends that the propane cylinder did not display the discoloration which occurs when such a tank is used to store anhydrous ammonia. He cites State v. Crenshaw, 59 S.W.3d 45, 49 (Mo.App. E.D.2001), for the proposition that where no evidence of a crime exists other than the confession of the defendant, the conviction must be reversed.

The admission or exclusion of evidence at trial is in the trial court’s broad discretion and we will only reverse if an abuse of that discretion has occurred. State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). “The corpus delicti rule is essentially evidentiary in nature because it determines whether the defendant’s confession of guilt may be considered substantive evidence of guilt.” State v. Miller, 139 S.W.3d 632, 637 (Mo.App. S.D.2004). Generally, “‘[e]xtrajudicial admissions, statements or confessions of the accused are not admissible in evidence absent independent proof, either circumstantial or direct, of the essential elements of the corpus delicti.’” State v. Evans, 992 S.W.2d 275, 284 (Mo.App. S.D.1999) (quoting State v. Friesen, 725 S.W.2d 638, 639 (Mo.App. W.D.1987)). “All that is required is evidence of circumstances tending to prove the corpus delicti corresponding with the confession.” Madorie, 156 S.W.3d at 355 (quoting State v. Hahn, 640 S.W.2d 509, 510 (Mo.App. S.D.1982)). There is no requirement of full proof of the corpus delicti independent of the defendant’s confession. Miller, 139 S.W.3d at 637. “Only ‘slight corroborating facts’ are needed to authorize the admission of a defendant’s incriminating statements in evidence.” Id. “If there is evidence of corroborating circumstances independent of the confession, which tends to prove the offense by confirming matters related in the confession, both the corroborating circumstances and the confession may be considered in determining whether or not the corpus delicti has been established.” Id. (quoting City of St. Louis v. Watters, 289 S.W.2d 444, 446 (Mo.App.St.L.1956)). Furthermore, “[e]vi-dence of the corpus delicti need not precede a defendant’s admission so long as the essential elements of the crime are proved by the end of the trial.” Evans, 992 S.W.2d at 285. “The determination of whether there is sufficient independent evidence of the corpus delicti of an offense is fact specific and requires a case-by-case evaluation.” Madorie, 156 S.W.3d at 355.

Appellant was charged with possession of paraphernalia with the intent to use that paraphernalia in combination with each other to manufacture methamphetamine. The corpus delicti of this crime requires proof that the defendant possessed at least two items of paraphernalia and had the intent to use those items in combination with each other to manufacture methamphetamine. Section 195.233.2. There was testimony from Deputy Bohn and Deputy Fowler that Appellant had a propane cylinder and a brass valve in his possession at the time of his arrest. There was testimony from Deputy Fowler and Patrolman Graves as to how the propane cylinder and valve could be combined in order to store the anhydrous ammonia. Deputy Fowler testified that in his experience he had seen similar propane cylinders and valves that were used to store anhydrous ammonia for use in the manufacture of methamphetamine. Furthermore, Appellant’s statements to Deputy Bolin during the first traffic stop indicate his knowledge that such items are used to steal anhydrous ammonia. This evidence is sufficient to establish the corpus delicti of possession of the paraphernalia and combination of the paraphernalia.

As for independent evidence establishing Appellant’s intent, the State presented evidence that Appellant’s vehicle was seen “[i]n this area of Essex, of course, basically all there is — This is the Ross Cotton Gin on this side — this whole area. These [referring to an illustration] are two large anhydrous storage tanks, you know, really big.” There was testimony that anhydrous ammonia had been stolen from the cotton gin before. It also presented evidence that Appellant knew that items such as the propane cylinder and valve could be used to steal anhydrous ammonia and make methamphetamine. The State presented evidence of Appellant’s erratic behavior at the stop in Essex, including the fact that he stopped his vehicle in the middle of the street, got out, and approached Deputy Bolin without being told to do so and without Deputy Bolin first turning on his emergency lights or siren; the fact that he was in Essex after having told Deputy Bolin one-half hour earlier that he was going to Saxton to stay the night with friends; his statement that he was there to see “Mary,” but did not know her last name or where she lived; and, his statement that “[w]ell, if this is about that tank and valve, I’m not — we weren’t going to steal anything. We weren’t going to do anything over there. And if you want to, you can just take that tank and valve and take it with you.” The State also introduced evidence that Appellant had previously possessed other items of paraphernalia commonly used in the manufacture of methamphetamine, including an acid generator, seed jars, and salt.

Crenshaw, 59 S.W.3d at 49, relied upon by Appellant, is distinguishable from the current situation because here, unlike Crenshaw, the State presented independent evidence of the crimes charged. We find that this independent evidence was sufficient to meet the requirement of “slight corroborating facts” to warrant admission of Appellant’s statement. Appellant’s second point is denied.

In his third point, Appellant contends that the trial court erred in admitting the propane cylinder, valve, and his statements after his arrest in that the evidence should have been suppressed because he claims that his arrest was not based upon probable cause.

Before trial, Appellant filed three motions to suppress. His first two sought to suppress any statements he made and the physical evidence recovered during his arrest, claiming that there was no probable cause to place him under arrest. The trial court denied both of these motions. He later filed another motion to suppress statements he made following his arrest, claiming that he was promised that if he gave information and signed an affidavit, he would be released after twenty hours and no charges would be filed. The trial court also denied this motion.

Usually, a motion to suppress is interlocutory in nature, and in order to be preserved, an objection must be made to the introduction of the evidence at trial. State v. Reed, 157 S.W.3d 353, 356 (Mo.App. W.D.2005). “Where a motion to suppress was overruled and the evidence was introduced at trial, appellate review considers the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted.” Id. We examine the whole record and the totality of the circumstances, and affirm if its denial is supported by substantial evidence. State v. Moore, 99 S.W.3d 579, 582 (Mo.App. S.D.2003). We defer to the trial court’s opportunity to determine the weight of the evidence and credibility of the witnesses when deciding whether sufficient evidence supports the trial court’s determination. Id.

In addition to filing his motions to suppress, Appellant objected to the admission of his statements following his arrest and the admission of the physical evidence at trial, and raised the issues in his “Motion for Judgment of Acquittal at the Close of the State’s Case” and in his “Motion for Judgment of Acquittal at the Close of All the Evidence.” He properly preserved his objections to the admission of the physical evidence in his motion for new trial, though he failed to include in that motion his objection to the admission of his statements. As such, we may only review his claim of error as to the admission of his statements for plain error under Rule 30.20, and will only reverse if a manifest injustice or miscarriage of justice resulted from the admission of his statements. See State v. Lebbing, 114 S.W.3d 877, 880 (Mo.App. S.D.2003).

Appellant claims that there was no probable cause to support his arrest because the only evidence that the arresting officers had was Appellant’s possession of a propane cylinder and valve, and knowledge of Appellant’s reputation. He argues that it is not illegal to have a propane cylinder in one’s possession, and, furthermore, Appellant lacked a piece of equipment he would need to steal anhydrous ammonia, a hose. He claims that the only reason he was arrested after the second stop was his proximity to the anhydrous ammonia storage tanks in Essex, Missouri. As to his reputation, he argues that reputation evidence is not enough for probable cause, citing State v. Crum, 536 S.W.2d 507 (Mo.App.Spfd.1976). Furthermore, he contends that the only evidence of reputation known to Deputy Fowler, the arresting officer, “was that he had [previously] encountered [Appellant] at the scene where he was executing an arrest warrant.” He contends that the arresting officers had no knowledge of what was contained in Appellant’s truck on the prior encounter with Deputy Fowler, as the State introduced evidence of the contents of the truck at that time through the testimony of Deputy Johnston, who was not at the scene where Appellant was arrested.

“A warrantless arrest is valid so long as the officer has probable cause to believe that the suspect has committed a crime.” State v. Shaw, 81 S.W.3d 75, 77-78 (Mo.App. W.D.2002). “Probable cause is determined by the collective knowledge and facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information.” State v. Witte, 37 S.W.3d 378, 382 (Mo.App. S.D.2001). These facts and knowledge, alone, must “warrant a man of reasonable caution in the belief that an offense has been or is being committed.” State v. Glass, 136 S.W.3d 496, 510 n. 5 (Mo. banc 2004) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). “The practical considerations of everyday life on which a reasonably prudent person acts, not the hindsight of legal technicians, governs the probable cause determination.” Witte, 37 S.W.3d at 382. Furthermore, “an officer who is lawfully located in a place from which [an] object can plainly be seen may seize the object so long as there is probable cause to believe that the object is connected with the crime.” State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997).

At the hearing on the motions to suppress, Deputy Bolin, Deputy Fowler, Patrolman Graves, and Deputy Johnston all testified on behalf of the State. Their testimony was substantially similar to the testimony given at trial. In addition to the testimony he gave at trial, Deputy Bolin stated that when he stopped Appellant for the second time and spoke to him, he was more nervous than he was when he was stopped earlier. He did not place Appellant under arrest, but waited for Deputy Fowler to arrive on the scene, intending to place Appellant under arrest for attempting to steal anhydrous ammonia if Deputy Fowler was unavailable. He further stated that at the time Appellant was stopped, around midnight, there was no other traffic in Essex and nothing was open.

Deputy Fowler testified at the hearing as to his prior encounter with Appellant and Guzman, stating that he encountered them while serving an arrest warrant in Butler County a couple of months earlier, where he noticed methamphetamine laboratory chemicals and paraphernalia in the back of Appellant’s truck. He also spoke with Deputy Johnston, before arriving on the scene, about the reputation of Appellant, and Johnston reminded him of their encounter with Appellant in May. Deputy Fowler made the decision to place Appellant and Guzman under arrest shortly after he arrived at the scene in Essex. He based his decision on the fact that Appellant was in close proximity to anhydrous ammonia storage tanks; that he had paraphernalia in his possession, consistent with what he had seen on other occasions, that could be used to steal anhydrous ammonia; and, that he knew Appellant and Guzman were involved in the methamphetamine scene. Deputy Fowler also stated that it was common practice in Stoddard County that when an officer suspects someone of stealing anhydrous ammonia, they first call Deputy Fowler and wait for him to arrive before placing anyone under arrest. Deputy Johnston confirmed Deputy Fowler’s testimony regarding his contact with Deputy Fowler on the night of Appellant’s arrest and the prior encounter in May of 2003.

As we observed in our discussion of Appellant’s second point, both Deputy Bo-lin and Deputy Fowler had the opportunity to observe the propane cylinder and valve, which was in plain view in the bed of Appellant’s pickup truck. Deputy Fowler, from his experience on the SEMO Drug Task Force, knew that items similar to the propane cylinder, with its original valve removed, and the brass valve, were commonly used to steal and store anhydrous ammonia. Deputy Fowler also had knowledge of Appellant’s involvement in methamphetamine activities from his prior encounter with Appellant. We also noted earlier that Appellant was in an area, either stopped or driving without his headlights, where there was no other traffic, nothing open at that time, and in close proximity to anhydrous ammonia storage tanks where anhydrous ammonia had often been stolen. Further contributing to the probable cause was Deputy Bolin’s testimony that Appellant was very nervous, Appellant’s behavior after he stopped his truck, his statements regarding “Mary,” and, his offer to give Deputy Bolin the cylinder and valve.

This situation is distinguishable from Crum, 586 S.W.2d at 510, where the only evidence supporting probable cause was the officer’s knowledge of the defendant’s reputation for using marijuana “practically at all times” and bulges through his shirt pockets. All of the facts presented to the trial court, taken together, demonstrate that there was adequate probable cause to place Appellant under arrest for possession of paraphernalia with the intent to combine the paraphernalia and manufacture methamphetamine and to seize the propane cylinder and brass valve. The trial court did not err in overruling Appellant’s motion relating to the physical evidence and in admitting it at trial. As to the denial of Appellant’s motion regarding his statements, and their admission in evidence, we find no plain error. Appellant’s third point is denied.

We affirm the conviction and sentence of the trial court.

BATES, C.J., and RAHMEYER, J., concur.

      . All statutory references are to RSMo (2000) unless otherwise specified.

      . There is no information in the record conclusively demonstrating whether Appellant was arrested or charged on this occasion. However, Appellant's attorney claimed in his argument in favor of a motion in limine that Appellant was arrested but not charged on this occasion.

      . Appellant appears to make a new argument in his reply brief that the State attempted to convict him on the basis that he possessed the items of paraphernalia not with an intent to manufacture methamphetamine personally, but to deliver the items, and anhydrous ammonia, to someone else who would actually manufacture the methamphetamine. He contends that Section 195.233 requires that he have a personal intent to manufacture or produce methamphetamine, and that the term "use” in the statute does not extend to people "who have in their possession or sell items they know will be used in the manufacture of methamphetamine.” Appellant argues that as he did not personally intend to use the paraphernalia to manufacture methamphetamine, and there is no evidence of such intent, then there was not sufficient evidence to support his conviction. However, "[r]eply briefs are solely to be used to ‘reply’ to arguments made by respondents in their briefs to our court and not to raise new points on appeal.” Kramer v. Mason, 806 S.W.2d 131, 134 (Mo.App. E.D.1991). As such, we cannot review Appellant’s new argument. Jos. A. Bank Clothiers, Inc. v. Brodsky, 950 S.W.2d 297, 304 (Mo.App. E.D.1997).


source: Caselaw Access Project

author: GEORGE W. DRAPER III, Judge.

license: Public Domain

text:
    STATE of Missouri, ex rel, CHARLES F. VATTEROTT CONSTRUCTION COMPANY, INC., Respondent, v. Samuel J. RAULS, Edward L. Kemp, And Patrick J. Lamping, Jefferson County Commissioners, Appellants.
    No. ED 83197.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 16, 2005.

      Dennis J. Kehm, Jr., Hillsboro, MO, for Appellant.
    Dennis H. Tesreau, Hillsboro, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

This appeal centers upon the development of a portion of property located in Jefferson County (hereinafter, “the Property”). Charles F. Vatterott Construction Company, Inc. (hereinafter, “Developer”) sought three variances from the subdivision regulations of Jefferson County, modifying the previously filed development plat. Developer raises one point on appeal, claiming Jefferson County Commission (hereinafter, “the Commission”) abused its discretion in denying its request for three variances. Developer believes this Court should agree with the trial court and grant the variances. We affirm the denial of the variances, and accordingly reverse the judgment of the trial court.

The Property at issue is approximately 76.56 acres in size and is located in a residentially zoned district. It is bounded by two developed residential estates, a State park, and a recreational facility. The Property maintains one single point of ingress and egress through one of its adjacent residential developments. The Property was platted on January 5, 1998, prior to the adoption of subdivision regulations by Jefferson County. Developer sought approval of a preliminary plat which would divide the Property into 111 lots. In order to accomplish this development, Developer sought three variances of the subdivision regulations, adopted February 25, 1988. Developer requested variances from: (1) providing at least two points of ingress and egress; (2) minimum easement rights regarding the width of access and additional easements for utilities and drainage; and (8) improvements to the easements.

The Planning and Zoning Commission heard Developer’s proposal on February 14, 2002, and it was denied. Developer appealed, and a hearing was held before the Commission. The Commission affirmed the decision of the Planning and Zoning Commission on June 11, 2002. Developer filed a writ of certiorari with the trial court. On June 9, 2008, the trial court reversed the Commission and entered its judgment directing the variances be granted. This appeal follows.

Developer raises one point on appeal, claiming the Commission abused its discretion in denying its request for three variances. Developer believes it established that practical difficulties existed in meeting the Jefferson County standards due to the topographic conditions and developments surrounding the Property. Developer also contends developing the Property as platted and without the variance would undermine the intent of the Jefferson County subdivision regulations because that plan would be detrimental to the public welfare and would damage other property in the area. Developer notes it is undisputed the recorded plat could be developed without the grant of any variances.

This Court reviews the decision of the agency rather than the judgment of the trial court. Rule 84.05(e); State ex rel. Columbus Park Community Council v. Bd. of Zoning Adj. of Kansas City, 864 S.W.2d 437, 440 (Mo.App. W.D.1993). Hence, Developer filed and acts as the appellant in this case. Our review is limited to a determination of “whether the [agency’s] action is supported by competent and substantial evidence upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful, or in excess of its jurisdiction.” State ex rel. Teefey v. Bd. of Zoning Adj. of Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000)(citing Hutchens v. St. Louis County, 848 S.W.2d 616, 617 (Mo.App. E.D.1993)). To determine whether substantial evidence exists, we view the evidence, and all reasonable inferences, in the light most favorable to the agency’s decision. State ex rel. Sander v. Bd. of Adj. of the City of Creve Coeur, 60 S.W.3d 14, 16 (Mo.App. E.D.2001).

“The general rule is that the authority to grant a variance should be exercised sparingly and only under exceptional circumstances.” Matthew v. Smith, 707 S.W.2d 411, 414 (Mo. banc 1986). Article VI, Section 6.3 of the subdivision regulations of Jefferson County states:

Whenever the tract to be subdivided/developed is of such unusual size or shape or is surrounded by such development, or contains such topographic conditions or characteristics, that the strict application of the requirements contained herein could impose practical difficulties or particular hardship, the Planning and Zoning Commission may vary or modify any of the requirements of these regulations so that substantial justice may be done, the public interest secured and the general intent of these regulations preserved... .The variance shall not be granted unless the Planning and Zoning Commission finds that the variance will not be detrimental to the public welfare or damaging to other property in the area in which the property for which the variance is requested is situated.

Missouri recognizes two types of variances: a use variance and a non-use variance. A use variance permits a use other than one which is permitted by zoning ordinances. Wolfner v. Bd. of Adj. City of Warson Woods, 114 S.W.3d 298, 303 (Mo.App. E.D.2003). In contrast, a non-use variance allows “deviations from restrictions which relate to a permitted use, rather than limitations on the use itself.” Id. (citing Housing Authority of the City of St. Charles, Mo. v. Bd. of Adj. of the City of St. Charles, Mo., 941 S.W.2d 725, 727 (Mo.App. E.D.1997)). Examples of a non-use variance would be deviations from “height and size of buildings, lot size, and yard requirements.” Wolfner, 114 S.W.3d at 303.

To obtain a non-use variance, Developer must establish practical difficulties exist in which the Property cannot be used for a permitted use without being in conflict with existing regulations. Housing Authority of the City of St. Charles, 941 S.W.2d at 727. “Practical difficulties” refer to conditions of the land, not conditions personal to the landowner. Cousin’s Advertising, Inc. v. Bd. of Zoning Adj. of Kansas City, 78 S.W.3d 774, 783. In determining whether there are practical difficulties which justify the granting of a non-use variance, relevant factors to consider include:

(1) how substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities (fire, water, garbage, and the like), (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.

Id. (citing Hutchens, 848 S.W.2d at 619). The determination of whether practical difficulties exist is a factual matter which only is reversible for an abuse of discretion. Housing Authority of the City of St. Charles, 941 S.W.2d at 727.

Developer’s comparison of its proposed plat to a development plan recorded before the adoption of subdivision regulations by Jefferson County is inapposite. Regardless of how the pre-recorded development would impact the surrounding community, the Commission has no authority to make any changes.

However, the Commission does have the authority to approve any modification of a development plan submitted after the passage of Jefferson County subdivision regulations and rule on any proposed changes. Determination of whether an area warrants a non-use variance due to a “practical difficulty” is a matter of discretion, and the decision will be reversed only for an abuse of discretion. State ex rel. Branum v. Bd. of Zoning Adj. of City of Kansas City, Mo., 85 S.W.3d 35, 39 (Mo.App. W.D.2002). The Commission need not grant a variance just because it changes the character of an existing problem. At issue in this case is the subdivision regulation Article V, Section 5.5A which governs the number of ingress and egress points for a subdivision, stating, “All subdivisions of one hundred (100) lots or more shall provide at least two (2) points of ingress and egress. The calculation of lots shall include all existing and proposed lots served by the existing and proposed access.”

At its hearing, the Commission received evidence the Property is not of a peculiar size or shape which would preclude the creation of a second point of ingress and egress. There were statements the Property is not surrounded completely by development which would prevent the creation of a second ingress and egress point. Developer presented testimony that it attempted to obtain easements from preexisting property owners to widen the necessary roads and to create a second point of ingress and egress. Yet, equally, the Commission heard evidence stating, Developer failed to contact or follow-up with some landowners regarding obtaining an easement and there were alternative areas of ingress and egress which Developer did not explore. Additionally, the Commission heard evidence that it could be possible for Developer to use some existing easements to make necessary improvements to the roads without granting a variance. Finally, there was evidence that there are no unusual topographic conditions located on the Property differing from the characteristics of the surrounding land.

Based upon hearing all of this evidence, the Commission found the factors justifying granting a non-use variance were not met. Since this Court views the evidence and all reasonable inferences in the light most favorable to the Commission’s decision, there was sufficient evidence in the record to support the decision to deny the variances. Sander, 60 S.W.3d at 16.

The Commission specifically concluded Developer’s need for the variances was not due to a condition of the land itself, but due to Developer’s financial considerations. The Commission is not bound to grant a variance which it believes would benefit Developer financially but would also lead to the detriment of the surrounding existing communities. The Commission found without developing the Property according to the regulated ordinances, the streets are not suitable for the increased traffic level. Developer failed to contradict traffic flow evidence during the hearing. Further, the Commission found the creation of such a large subdivision would increase the population density, thereby having a detrimental impact on the public welfare by restricting existing developments’ access to emergency vehicles.

The Commission also found that compliance with the subdivision regulations is entirely within Developer’s control. It is uncontested Developer’s difficulties may be obviated without the grant of the variances; Developer may develop the subdivision as currently platted, reduce the number of homes, or reconfigure the subdivision to allow for two points of ingress and egress to comply with the existing ordinances.

The Commission found Developer did not prove there were existing practical difficulties which would prevent Developer from using the land for a permitted use. Additionally, the Commission found the creation of such a large subdivision would impact detrimentally the welfare of the surrounding existing communities. The Commission’s ruling is neither arbitrary nor capricious. In this instance, it was not error for the Commission, sitting as a fact finding body, to deny the variances to Developer.

The ruling of the Commission is affirmed and the judgment of the trial court is reversed.

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


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Charlotte HELLMANN, Appellant, v. UNION SCHOOL DISTRICT, Respondent.
    No. ED 85171.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 23, 2005.

      Sally E. Barker, St. Louis, MO, for appellant.
    Margaret A. Hesse, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Charlotte Hellmann appeals from a judgment of the Circuit Court of Franklin County affirming the Union R-XI Board of Education’s (“the Board”) termination of her teaching contract with the Union RXI School District (“District”). Ms. Hell-mann contends that the Board erred in: (1) terminating her contract even though the District failed to “meet and confer” with her in the manner required by Section 168.116.2 RSMo 2000 of the Missouri Teacher Tenure Act (“the Tenure Act”); (2) construing the terms “incompetency,” “inefficiency” and “insubordination” in violation of Section 168.114.1(3); (3) terminating her contract even though the Statement Charges did not give her notice of specific provisions of the Board policy and state and federal laws that she allegedly violated; and (4) applying an incorrect construction of Section 168.114.1(4). We affirm.

Statement of Facts and Proceedings Below

Ms. Hellmann began her employment as a special education teacher with the District at the beginning of the 1988-1989 school year. During that year, Ms. Hell-mann worked at both the junior high and the high school with students diagnosed with behavior disorders. Between 1989 and 2002, Ms. Hellmann worked primarily as a resource teacher for students with learning disabilities and behavior disorders at the high school. As a resource teacher, Ms. Hellmann was available to students receiving special education services who were enrolled in regular classes but required special assistance to understand their class work and complete assignments.

The duties of a special education teacher in the District included individual case management. Typically, when a special education student entered high school, the school assigned that student to a special education teacher who served as that student’s case manager throughout that student’s high school career. As a case manager, the special education teacher was responsible for the planning and coordination of each student’s special education program. Moreover, the case manager was responsible for evaluating students and completing the students’ Individualized Education Programs (“IEPs”). Throughout her tenure with the District, Ms. Hellmann, like all of the other special education teachers, served as case manager for several assigned special education students.

Three weeks into the fall term of the 2001-2002 school year, the District implemented a reorganization of the special education program. As a result of the reorganization, special education teachers were assigned several subject matter classes to teach in addition to their case management responsibilities. The reorganization resulted in Ms. Hellmann managing a caseload of approximately 20 students as well as teaching six subject matter classes instead of primarily staffing the resource room.

The District appointed Shirley Dintel-man as the Director of Special Education for the 2001-2002 school year. Ms. Dintel-man was not, however, new to the District, having previously worked for the District as a counselor and then as Process Coordinator for the Special Education Program. Upon Ms. Dintelman’s return to the District in her new position, she reviewed memoranda from the outgoing Director of Special Education which indicated that Ms. Hellmann’s reevaluations and IEPs were not completed properly during the 1999-2000 and 2000-2001 school years. In light of this information and in preparation for her new tasks as Director, Ms. Dintelman reviewed the files of all students receiving special education services and requested that the special education teachers, including Ms. Hellmann, provide the missing documents by September 2001. Ms. Hell-mann failed to submit the missing documents.

In light of Ms. Hellmann’s failure to submit the missing documents as well as Ms. Hellmann’s failure to submit reevaluations and IEPs during the two preceding school years, Ms. Dintelman and Superintendent Gene Garrison decided to implement a Job Target for Ms. Hellmann. The October 25, 2001 Job Target cited two “improvement objectives.” First, the Job Target required that Ms. Hellmann complete all required forms and records within “required timelines” and second, that Ms. Hellmann assured that “all activities required to complete forms and records meet process and compliance standards.” The Job Target contained a deadline of December 20, 2001. Ms. Hellmann and Ms. Din-telman met four times during November to discuss the improperly completed areas in Ms. Hellmann’s IEPs. They also reviewed the Missouri special education “Standards and Indicators.”

As of the December 20 Job Target deadline, Ms. Hellmann only submitted a portion of the required paperwork. In light of Ms. Hellmann’s partial compliance, Ms. Dintelman extended the Job Target deadline to January 16, 2002. During the extension period, Ms. Dintelman reviewed the paperwork Ms. Hellmann submitted and returned several documents with identification of specific errors and omissions. Although Ms. Dintelman agreed to an additional one-day extension, Ms. Hellmann did not submit the remainder of her work until January 24, 2002.

At that time, Ms. Dintelman, Ms. Hell-mann and Principal VanZee signed a Summary of Progress stating that Ms. Hell-mann’s completion of the Job Target was unacceptable. Principal VanZee and Ms. Dintelman also warned Ms. Hellmann that continued failure to comply with paperwork requirements would result in further action. Ms. Dintelman reviewed the remaining paperwork submitted by Ms. Hell-mann and drafted a memorandum to Ms. Hellmann indicating additional concerns with the content of the paperwork.

The District issued Ms. Hellmann a notice of deficiencies pursuant to Section 168.116 on February 19, 2002. The notice informed Ms. Hellmann that failure to satisfactorily improve her performance could result in termination of her employment for “willful and/or persistent violation of Board of Education policy; and/or incompetence, inefficiency and insubordination.” The notice contained nearly five pages of specific performance deficiencies largely related to failure to complete required paperwork for students assigned to Ms. Hellmann. The District assigned Ms. Dintelman to “meet and confer” with Ms. Hellmann to help her address the identified deficiencies.

Ms. Dintelman met with Ms. Hellmann several times during the thirty-day period following the notice of deficiencies. At the end of the thirty days, on April 2, 2002, Ms. Dintelman told Ms. Hellmann that her paperwork was timely and compliant. Nevertheless, Ms. Dintelman extended the effect of the notice of deficiencies until February 2003.

As the 2002-2003 school year progressed, Ms. Hellmann again began to fall behind on paperwork. In a team meeting on November 13, 2003, Ms. Dintelman requested that teachers submit a copy of IEPs to her within 10 days of the IEP meetings. However, by the end of January, Ms. Dintelman had not received copies of Ms. Hellmann’s IEPs.

On January 31, 2003 Ms. Dintelman, Ms. Hellmann and an assistant superintendent met to discuss the problems cited in the February 19, 2002 notice of deficiencies. Because the problems identified in the notice continued to exist, the notice was extended through the school year. The assistant superintendent warned Ms. Hellmann that failure to remediate the problems in the notice could result in a “Statement of Charges.”

At that same meeting, Ms. Dintelman reviewed with Ms. Hellmann which documents were overdue and which documents were incomplete or completed incorrectly. Nonetheless, Ms. Hellmann did not submit copies of the IEPs and other documents within ten days of the meetings with the students, as requested by Ms. Dintelman. Moreover, when Ms. Hellmann finally submitted her IEPs, they contained errors, including: wrong dates, an inadequate “postsecondary goals list” and missing “Notification of Meeting” and/or “Notification of Action” forms. Ms. Hellmann also failed to identify “agency linkages” on some forms and “transition service plans” for certain students.

As a result of Ms. Hellmann’s persistent failure to complete her work correctly and in a timely fashion, Dr. Tilson issued a Statement of Charges for incompetency, inefficiency and insubordination as well as willful and persistent violation of, and failure to obey, school laws against Ms. Hell-mann on May 5, 2003. After detailed references to particular acts of disobedience relating to individual students, the Statement charged Ms. Hellmann with violation of state and federal laws, the Individuals with Disabilities Education Act (“the IDEA”) and “the school laws of the State of Missouri” contained in Sections 162.670 and 162.700 of the Missouri Revised Statutes.

After receiving the Statement, Ms. Hell-mann requested a hearing before the Board. In its case, the District called two witnesses, Ms. Dintelman and Dr. Tilson. Dr. Tilson testified that she and Ms. Din-telman met with Ms. Hellmann at the beginning of the 2002-2003 school year to remind Ms. Hellmann that the notice of deficiencies remained in place. Dr. Tilson also testified that this was her only direct involvement and she relied on Ms. Dintel-man’s observations in issuing the charges. Ms. Dintelman testified in detail about the problems with Ms. Hellmann’s paperwork and Ms. Dintelman’s efforts to cure the deficiencies.

Ms. Hellmann called three former special education students, one parent, two District teachers and one special education aide to testify regarding her superior performance as a special education teacher. Ms. Hellmann also testified. She stated that she had never intentionally violated or disobeyed any law or policy. Ms. Hell-mann admitted her mistakes and testified that they were inadvertent and the paperwork requirements were unduly burdensome. She admitted that in many cases she did not submit the paperwork to Ms. Dintelman within ten days of the meetings per Ms. Dintelman’s request. She also rebutted one charge of incompleteness by testifying that Ms. Dintelman had not required that portion of the paperwork to be completed until after the date the forms were submitted.

The Board issued its Findings of Fact and Conclusions of Law terminating Ms. Hellmann’s teaching contract. The Board concluded that Ms. Hellmann was incompetent, inefficient and insubordinate and had willfully and persistently violated and failed to obey Missouri’s school laws and Board policies. Ms. Hellmann appealed the Board’s decision to the Circuit Court of Franklin County which affirmed the Board’s decision. This appeal followed.

Standard of Review

In an appeal of an administrative decision, we review the findings and decision of the administrative decision-maker, here, the Board, rather than the judgment of the circuit court. Gerig v. Board of Education of the Central School District R-III, 841 S.W.2d 781, 733 (Mo.App. E.D.1992). Our review is limited to whether the Board’s findings and decision are supported by competent and substantial evidence based on the record as a whole. Id. We consider the evidence and view all reasonable inferences in the light most favorable to the Board. Id. at 732. We presume that the Board’s decision is valid, and cannot reverse merely because we might have reached a different conclusion. Id. at 733. Moreover, the presumption in favor of the Board’s decision is strong and can only be overcome by clear and convincing evidence that the decision was arbitrary, capricious, unreasonable or an abuse of discretion. Id.

We have more leeway when a school board’s interpretation or application of law is challenged. In that case, we “may independently weigh the evidence and resolve factual issues, but in so doing ‘[we] shall give due weight to the opportunity of the agency to observe the witnesses, and to the expertness and experience of the particular agency.’ ” Lile v. Hancock Place School District, 701 S.W.2d 500, 504 (Mo.App. E.D.1985) (citation omitted).

Discussion

In her first point on appeal, Ms. Hellmann contends that the Board erred in terminating her contract for incompetency, inefficiency and insubordination because the District failed to comply with the strictures of the Tenure Act. Specifically, Hellmann asserts that the District failed to meet and confer with Ms. Hellmann as required by Section 168.116.2. In response, the District asserts that it not only met, but exceeded, the requirements of the Tenure Act.

The Tenure Act sets forth the procedure for terminating a tenured teacher. Under the Tenure Act, a district cannot terminate a teacher on the grounds of incompetency, inefficiency or insubordination unless the district follows a detailed three-step procedure. Johnson v. Francis Howell R-3 Board of Education, 868 S.W.2d 191, 195 (Mo.App. E.D.1994). We have described this procedure as “strictly defined” and not subject to evasion. Iven v. Hazelwood School District, 710 S.W.2d 462, 464 (Mo.App. E.D.1986). The first procedural step requires the district to give the teacher a written warning specifically stating causes which if not removed may result in charges. Id. The second step requires the district’s superintendent, or a designated representative, to “meet and confer” with the teacher to assist the teacher to improve the deficiencies. Id. The third step, which occurs if the deficiencies are not cured, requires issuance of “charges specifying with particularity the grounds alleged to exist for termination together with a notice of hearing on the charges.” Id.

In this case, Ms. Hellmann asserts that the District failed to “meet and confer” with her in the manner required by Section 168.116.2. Specifically, Ms. Hellmann contends that the District improperly utilized a “hands-off’ or “sink or swim” approach in lieu of meeting and conferring. In support of her contention, Hellmann relies solely on Iven v. Hazelwood, supra.

In Iven, the district issued a formal notice of deficiencies to a tenured math teacher outlining “causes relating to competency in quality of performance and general responsibility.” Iven, 710 S.W.2d at 464. Following the notice to the teacher, the district’s designated representative observed four classes on three different days. None of the observations were scheduled. The teacher and the district’s representative met for ten minutes after one class and briefly after another, but no direction for improvement was given to the teacher on either occasion. Id. at 465. The teacher’s evaluation period was extended to the next school year, but the district’s designated representative never observed or evaluated the teacher again. Rather, the Chairman of the Math Department, who was not the district’s designated representative, observed the teacher and, at the teacher’s hearing testified that the teacher had “made the necessary improvements to avoid termination proceedings.” Nevertheless, the board terminated the teacher. On appeal, the circuit court found, inter alia, that the board failed to comply with Section 168.116 because the superintendent who was chosen as the district’s representative, failed to meet and confer with the teacher in a good faith effort to assist the teacher in.remedying any defects in his performance. Id. at 463. The board appealed the circuit court’s determination and we affirmed finding that the evidence failed to support a finding that the board “exercised the required good faith effort to give the teacher a chance to remedy defects.” Id. at 465.

Ms. Hellmann asserts that the district’s approach here is indistinguishable from the “sink or swim” approach we condemned in Iven. We disagree. Here, the record discloses that Ms. Dintelman worked with Ms. Hellmann prior to the tíme the District issued its notice of deficiencies, after the issuance of the notice of deficiencies and up to the time it issued written charges. In contrast to Iven, there is evidence here that the District representative met with Ms. Hellmann multiple times with the specific intention of assisting Ms. Hellmann in improving her performance. In fact, Ms. Dintelman began meeting with Ms. Hellmann as soon as the District issued the October 25, 2001 Job Target to assist Ms. Hellmann to meet the listed “improvement objectives.” The record reflects that Ms. Hellmann and Ms. Dintelman met four times to discuss the improperly completed areas in Ms. Hell-mann’s IEPs. During one of these meetings, Ms. Dintelman reviewed with Ms. Hellmann Missouri’s special education “Standards and Indicators.”

Despite Ms. Dintelman’s efforts to help Ms. Hellmann meet the Job Target, when the December 20, 2001 deadline arrived, Ms. Hellmann only submitted a portion of the required paperwork. In an effort to further facilitate compliance with the improvement objectives without resorting to further remedial action, Ms. Dintelman extended the Job Target deadline to January 16, 2002. During the extension period, Ms. Dintelman reviewed the paperwork Ms. Hellmann submitted and returned several documents with identification of specific errors and omissions. When Ms. Hellmann missed the extended Job Target deadline, Ms. Dintelman agreed to an additional one-day extension. Nonetheless, Ms. Hellmann did not submit the remainder of her work in a timely fashion.

At that time, Ms. Dintelman, Ms. Hell-mann and Principal VanZee signed a Summary of Progress indicating that Ms. Hell-mann’s completion of the Job Target was unacceptable. Principal VanZee and Ms. Dintelman also warned Ms. Hellmann that continued failure to comply with the paperwork requirements would result in further action. Ms. Dintelman reviewed the remaining paperwork submitted by Ms. Hell-mann and drafted a memorandum to Ms. Hellmann indicating additional concerns with the content of the paperwork.

The District issued a notice of deficiencies to Ms. Hellmann because of her paperwork deficiencies on February 19, 2002. The notice informed Ms. Hellmann that failure to satisfactorily improve her performance could result in termination of her employment for willful and persistent violation of Board policy and/or incompetence, inefficiency and insubordination. The notice contained nearly five pages of specific performance deficiencies largely related to failure to complete required paperwork for students assigned to Ms. Hellmann. The District assigned Ms. Dintelman to “meet and confer” with Ms. Hellmann to help her address the identified deficiencies. The record reveals that in the thirty days following the issuance of the notice of deficiencies, Ms. Dintelman met with Ms. Hell-mann at least once a week and sometimes more often. At these meetings, Ms. Din-telman identified for Ms. Hellmann specific errors and omissions in Ms. Hellmanris paperwork, and further identified overdue paperwork.

By April 2, 2002, Ms. Hellmann achieved compliance with her outstanding paperwork requirements. However, the administration reiterated to Ms. Hellmann that the notice of deficiencies remained in effect until February 2003 because the administration believed that it was necessary that Ms. Hellmann demonstrate her ability to complete her professional responsibilities without relapses in compliance.

Ms. Hellmann argues that she received no assistance from Ms. Dintelman following April 2, 2002. The record, however, supports a contrary conclusion. Indeed, the record establishes that Ms. Dintelman assisted Ms. Hellmann in the 2002-2003 school year.

In August 2002, both Dr. Tilson and Ms. Dintelman met with Ms. Hellmann to remind her that the notice of deficiencies remained in effect. Ms. Hellmann began the 2002-2003 school year without any IEPs or reevaluations due until December 2002. Ms. Dintelman held team meetings for all high school special education teachers, including Ms. Hellmann, every two weeks. At those meetings, Ms. Dintelman provided continuous reminders to Ms. Hellmann about upcoming due dates. Furthermore, Ms. Dintelman reminded Ms. Hellmann that she was available for questions about upcoming paperwork requirements. Nevertheless Ms. Hellmann failed to submit IEPs or reevaluation documents that were due in December 2002 and January 2003 until February 10, 2003.

Concerned by the delay in receiving the required paperwork, Ms. Dintelman and an administrator met with Ms. Hellmann and extended the notice of deficiencies through the end of the school year. Upon extending the notice of deficiencies, Ms. Dintelman made additional efforts to assist Ms. Hellmann to correct the areas in which she was deficient. Specifically, Ms. Dintelman issued written memoranda, offered verbal guidance during conferences, and ensured that Ms. Hellmann knew the areas of her performance which required improvement. In addition, the record establishes that Ms. Dintelman provided Ms. Hellmann resources to assist with compliance, such as copies of relevant legal requirements and sample IEPs. By holding numerous conferences with Ms. Hellmann, offering verbal and written reminders of relevant due dates and modeling correctly completed documents, the District complied with the “meet and confer” requirement of Section 168.116.2. Point denied.

In her second point on appeal, Ms. Hellmann contends that the Board erred in terminating her because the Board improperly construed the statutory terms “incompetency,” “inefficiency” and “insubordination” in violation of Section 168.114.1(3). Specifically, Ms. Hellmann asserts that the Board improperly based its findings and conclusions on Ms. Hell-mann’s non-teaching, non-substantive processing of burdensome administrative paperwork. Additionally, Ms. Hellmann alleges that the Board erroneously failed to consider Ms. Hellmann’s past teaching evaluations before reaching its decision.

As a preliminary matter, we note that although the terms incompetency and inefficiency are not statutorily defined in the Tenure Act, several cases have judicially defined the scope of these terms to mean the inability “to perform ... professional teaching duties in a manner acceptable to the Board.” Artherton v. Board of Education of the School District of St. Joseph, 744 S.W.2d 518, 522 (Mo.App. W.D.1988); Beck v. James, 793 S.W.2d 416, 418 (Mo.App. E.D.1990); Johnson, 868 S.W.2d at 197. Indeed, because the operation of the school system is entrusted to a board of education, each respective board must determine the level of competency and efficiency required in its district. Hanlon v. Board of Education of the Parkway School District, 695 S.W.2d 930, 934 (Mo.App. E.D.1985). “Neither competency nor efficiency can be established by a measurement or weighing of a group of incidents or conduct which are then graded on an established scale.” Id. Rather, competent district administrators evaluate a given teacher’s competency and efficiency through subjective evaluation of performance. Id. A board reviews the credibility of the administrator’s evaluation. Id. As a general matter, we are not authorized to second-guess the board’s ultimate conclusion. Id.

In this case, the Board heard un-contradicted testimony from Ms. Dintel-man who testified that, in the District, the timely and accurate completion of special education paperwork is a crucial component of a special education teacher’s job. Ms. Dintelman further testified that failure to comply with paperwork requirements can result in a loss of free and appropriate education for students with special educational needs.

Ms. Hellmann did not dispute the fact that case management and the resultant paperwork are an integral part of a special education teacher’s job. Rather, Ms. Hell-mann argued that Congress is considering reducing some of these burdensome paperwork requirements. In addition, Ms. Hellmann stressed that her paperwork deficiencies did not harm her students or result in parent complaints about her services. To that end, Ms. Hellmann offered the testimony of former students and parents each of whom acknowledged that Ms. Hellmann played an integral role in ensuring these students’ educational achievement and advancement.

We need not decide the legitimacy of Ms. Hellmann’s contentions regarding the unduly burdensome nature of special education paperwork because the issue in this case is whether the record contains sufficient evidence of Ms. Hellmann’s failure to comply with the District’s special education paperwork requirements. Furthermore, Ms. Hellmann provided no support for the proposition that the District must demonstrate actual harm to students in order to meet its burden of proving a teacher’s inability to perform her professional teaching duties. Indeed, we have specifically held that “there is no requirement of evidence of actual harm” to meet the burden of demonstrating incompetency and inefficiency under Section 168.114.1(3). Beck, 793 S.W.2d at 418-19.

Ms. Hellmann also asserts that the Board failed to consider performance evaluations in violation of the Tenure Act. Section 168.114.2 of the Tenure Act provides:

In determining the professional competency of or efficiency of a permanent teacher, consideration should be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which may have been adopted by the school board.

Although this statutory section provides that a board should consider evaluations when it determines competency or efficiency, the Tenure Act does not require a board to base its decision solely on these performance-based evaluations. Nevels v. Board of Education of the School District of Maplewood-Richmond Heights, 822 S.W.2d 898, 905 (Mo.App. E.D.1991).

Here, the record reflects that the Board considered several performance evaluations as well as testimony from the supervisor who supervised and evaluated Ms. Hellmann in her daily duties as a special education teacher. Although the District admits that it failed to maintain some copies of Ms. Hellmann’s past evaluations, Ms. Hellmann was permitted to testify regarding the content of missing evaluations. To that end, the Board heard testimony regarding many satisfactory evaluations and some exemplary evaluations.

The Board heard ample testimony that the accurate and timely completion of special education paperwork is inextricable from a special education teacher’s “professional teaching duties.” Indeed, we have previously held failure to comply with a district’s paperwork requirements can support a finding of incompetency and inefficiency. See Nevels, 822 S.W.2d at 902-03 (evidence of physical education teacher’s chronic record-keeping problems supported a finding of incompetency and inefficiency). As a result of this testimony, as well as virtually uncontradicted testimony detailing the deficiencies in Ms. Hell-mann’s paperwork, the record supports the Board’s finding that, viewed in their totality, Ms. Hellmann’s deficiencies rise to the level of incompetency, inefficiency and insubordination. Point denied.

In her third point on appeal, Ms. Hellmann asserts that the Board erred when it terminated her teaching contract because the written charges the Board provided Ms. Hellmann pursuant to Section 168.116.1 failed to identify the specific provisions of Board policy and State special education laws that she allegedly willfully and persistently violated. Specifically, Ms. Hellmann contends that Charges III and IV of the Statement of Charges fail to state “with particularity the grounds alleged to exist for termination” in violation of Section 168.116.1. In essence, Ms. Hellmann asserts that a failure to identify specific provisions of specific laws negates the effectiveness of the written charges required by Section 168.116.1.

In support of her contention, Ms. Hell-mann cites Iven v. Hazelwood, supra, and Dameron v. Board of Education of Lebanon School District R-3, 549 S.W.2d 671 (Mo.App.1977). Although both cases construe Section 168.116.2’s warning letter requirements, neither supports Ms. Hell-mann’s proposition that Section 168.116.1, which requires specificity of the written charges, mandates citation to specific provisions within state and federal special education laws.

In Iven, we found that a board failed to comply with Sections 168.116.1 and .2 because the district’s letter specifying charges listed only “competency lacking in quality of performance, and competency lacking in general responsibility” as the grounds for termination. Iven, 710 S.W.2d at 466. We held that these grounds fell short of the specificity requirement because they made it impossible for the teacher to know what grounds would be tried at the termination hearing. Id. Likewise, in Dameron, the teacher received a letter which listed five general areas of unsatisfactory work which the appellate court found to be “noninformative allegations” leaving the teacher ill-prepared for his hearing. Dameron, 549 S.W.2d at 677.

The holdings in both cases turned on each district’s respective failure to detail specific incidents of misconduct, which would serve as the basis for later charges of incompetency, inefficiency and insubordination. Neither case turned on a board’s failure to cite to specific “school laws of the state” or “published regulations of the board” in its written charges alleging the willful and persistent violation of state or federal school laws.

In this case, Ms. Hellmann received particularized, written charges detailing the grounds for her termination, including instances of specific deficient conduct. The grounds alleged in the written charges cited provisions of state school law and Board policy and tracked the evidence later presented at Ms. Hellmann’s termination hearing. In light of the fact that the purpose of the specificity requirement of Section 168.116 is to ensure that the teacher has notice of the complaints against her in order to allow her to adequately prepare for the termination hearing, we find that the written charges served on Ms. Hell-mann complied with Section 168.116. Point denied.

In her final point on appeal, Ms. Hell-mann contends that the Board’s decision to terminate her teaching contract was arbitrary, capricious, unreasonable and in excess of statutory authority. Specifically, Ms. Hellmann asserts that the Board applied an incorrect legal construction of Section 168.114.1(4) in that it did not: (1) reference a law which forbade or commanded action by a teacher; and (2) prove that Ms. Hellmann willfully and knowingly violated such law. In response, the District argues that the Board’s decision specifically concludes that Board Policy IGBA requires that District programs and services comply with state and Local plans for Part B of the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. Section 1400 et seq., and that Ms. Hellmann’s failure to comply with the IDEA’S paperwork requirements both as to timeliness and accuracy ran afoul of Board Policy IGBA.

As an initial matter, we disagree with Ms. Hellmann’s contention that Section 168.114.1(4) does not apply to violations of the IDEA because it is a federal law rather than a state school law. Missouri incorporated the IDEA into state law in Section 162.670, which provides, in pertinent part, as follows:

... it is hereby declared the policy of the state of Missouri to provide or to require public schools to provide to all handicapped and severely handicapped children within the ages prescribed herein, as an integral part of Missouri’s system of gratuitous education, a free appropriate education consistent with the provisions set forth in state and federal regulations implementing the Individuals with Disabilities Education Action (IDEA), 20 U.S.C. Section 1400 et seq. and any amendments thereto.

Section 162.670 RSMo Cum. Sup.2002. Thus, a teacher who fails to comply with requirements of the IDEA violates a school law of the state.

We next address Ms. Hellmann’s contention that the Board’s decision violates Section 168.114.1(4) because it erroneously relies on a single Board policy that neither commands nor forbids action. Section 168.114.1(4) provides, in pertinent part that, “[a]n indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for ... [wjillful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him.” Cases construing Section 116.114.1(4) have established that “the statute does not allow termination on the basis of a regulation which neither forbids nor commands action” because one can neither violate nor fail to obey such a regulation. See Carter County School District, R-1 v. Palmer, 582 S.W.2d 347, 349 (Mo.App. S.D.1979).

In her brief, Ms. Hellmann first asserts that the Board’s decision cites only to Board Policy IGBA which provides, “the district’s programs and services available to meet the needs of students with disabilities will be in accordance with applicable federal and state laws governing disability discrimination and special education services including State and Local Plans for Part B of the Individuals with Disabilities Education (IDEA).” Ms. Hellmann contends, in essence that this policy is merely a descriptive recommendation, and a teacher would not be capable of disobeying it.

Given the content of Board Policy IGBA, Ms. Hellmann’s assertion that the Board’s decision implicates only Board Policy IGBA is inaccurate. Board Policy IGBA incorporates by reference federal and state laws governing special education services. The evidence in the record clearly establishes that the District thoroughly reviewed with Ms. Hellmann what paperwork the applicable state and federal laws required and detailed both in the notice of deficiencies and Statement of Charges in what respects Ms. Hellmann was deficient with respect to the paperwork mandated by state and federal education laws.

Having found that the Board’s decision adequately references the school laws of the State of Missouri, our inquiry turns to whether the record supports the Board’s finding that Ms. Hellmann’s alleged violation of these state school laws was persistent or willful. As previously stated, Section 168.114.1(4) requires that a permanent teacher cannot be terminated absent a finding that the teacher’s violation(s) were persistent or willful. Loeffelman v. Board of Education of the Crystal City School District, 134 S.W.3d 637, 645 (Mo.App. E.D.2004). Willfulness is defined as an act “done deliberately; not accidental or without purpose; intentional.” Id. Notably, willfulness is seldom directly proved. Burgess v. Ferguson Reorganized School District R-2, 820 S.W.2d at 651, 656 (Mo.App. E.D.1991).

The linchpin in our inquiry is whether Ms. Hellmann had knowledge of the state school laws she is alleged to have violated. Review of the record and the transcript reveals agreement among the parties that Ms. Hellmann is an experienced teacher, certified in special education, a highly regulated field. Moreover, Ms. Hellmann admitted that she was aware of the policies and state laws governing special education and that Ms. Dintelman had reviewed with her the State of Missouri’s special education “Standards and Indicators.” Additionally, evidence indicated that the “Rules and Regulations of the Board” were incorporated by reference as if folly set out into Ms. Hellmann’s permanent teaching contract.

Accordingly, we conclude that the record supports the conclusion that despite her years of experience as a special education teacher, her knowledge of Board policy and her one-on-one review of Missouri special education policies with her supervisor, Ms. Hellmann knowingly and persistently failed to comply with the District’s efforts to ensure timely and accurate completion of paperwork required by Board policy and state law. Point denied.

Conclusion

We affirm the decision of the circuit court upholding the Board’s decision to terminate Ms. Hellmann’s indefinite teaching contract.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

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

      . For two years during this time, Ms. Hell-mann also taught one science class.

      . A Job Target is a written document that outlines specific areas of concern, the goals the teacher must meet in order to rectify those concerns and the methods for achieving those goals.

      . "Standards and Indicators” are interpretations of the various topics contained in the State Plan for Special Education designed to give teachers guidance as to how to comply with the State Plan for Special Education and other regulations. .

      . Likewise, insubordination is not defined in the Tenure Act, however, Missouri cases have defined insubordination as "a willful disregard of express or implied direction or a defiant attitude.” See McClellon v. Gage, 770 S.W.2d 466, 469 (Mo.App. S.D.1989).