author: ROACH, Justice. COOPER, Justice,

text:
    Eugene Paul JOHNSON Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.
    No. 2004-SC-000516-MR.
    Supreme Court of Kentucky.
    Dec. 22, 2005.
    Rehearing Denied March 23, 2006.

      Irvin Halbleib, Jr., Louisville, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, Counsel for Appellee.
   ROACH, Justice.

I. INTRODUCTION

Appellant, Eugene Paul Johnson, was convicted of First-Degree Robbery by Complicity and of being a Second-Degree Persistent Felony Offender. On appeal, he makes four independent allegations of error: (1) that there was insufficient evidence to support his conviction; (2) that, during voir dire and in the presence of potential jurors, the prosecutor impermis-sibly defined the “reasonable doubt” standard; (3) that evidence of his alleged statements of intent to commit another robbery was improperly admitted; and (4) that the jury instructions were improper, violating his right to due process. Having found no error, we affirm Appellant’s conviction.

II. BACKGROUND

On December 29,2003, between 9:00 and 9:30 p.m., Jason Brannock robbed Vette City Liquors (“liquor store”) in Bowling Green. It is undisputed that Appellant accompanied Brannock to the liquor store, but he denies any culpability for the crime. The two men were arrested together at a service station just a few hours after the robbery when police recognized that Bran-nock’s car matched the description of the getaway car used in the robbery.

Jeremy Poston and Wanda Ferguson, employees of the liquor store, were the first witnesses to testify, and they focused on the specific facts of the robbery. Although each of them had seen the perpetrator and observed that he was armed with a shotgun, neither could identify him because of the bandanas he wore on his head. Poston identified the getaway car and reported to police that the suspect had left in a red, late-model Chevrolet Cavalier with four doors. He did not observe or remember the car’s license plate number. Poston and Ferguson also testified that the perpetrator had stolen money from both the cash register and Poston’s wallet. Poston testified that the perpetrator had taken a payroll check as well.

Jason Brannock admitted his role in the crime and was the Commonwealth’s principal witness in this case. He testified that he and Appellant had spent the afternoon together at Appellant’s apartment. Bran-nock stated that earlier in the day, at approximately 6:00 p.m., he and the Appellant had driven to the liquor store where Appellant purchased a small bottle of whiskey. He testified that on their trip back from the liquor store, he and Appellant had jokingly discussed the possibility of robbing such an establishment.

Later that evening, Brannock claimed that he asked Appellant to take him back to the liquor store. He testified that Appellant drove the car, a red 2002 Chevrolet Cavalier, which belonged to Brannock. Shortly after their arrest Brannock stated to police that he had driven the car to and from the liquor store during the robbery. Upon arriving at the liquor store, Bran-nock directed Appellant to drive by the liquor store, allowing him to determine if there were any customers inside, and to park the car in the back. After they parked, Brannock exited the car and donned a camouflage jacket and two bandanas, which he used to cover his face and head. Brannock testified that he also took a shotgun from the car. Brannock stated that the shotgun had been stowed beside his seat and was unknown to Appellant. He also testified that Appellant had no knowledge of his intention to rob the liquor store.

Brannock testified that after the robbery was complete, he returned to the car and informed Appellant that he had just robbed the liquor store. He claims that Appellant asked if he planned to turn himself in to the police. After he replied that he intended to do no such thing, Appellant then threatened to call the police if Bran-nock did not split the proceeds of the robbery with him. The two men drove to the parking lot of a nearby shopping mall and divided the money. Brannock stated that he then drove the car back to Appellant’s apartment, where he changed clothes and disposed of most of the clothes he had worn during the robbery in an outdoor trash receptacle.

Later, the two left the apartment in Brannock’s car. They were arrested after two Kentucky State Police vehicles recognized Brannock’s car in the parking lot of a service station. Poston was brought to the service station, but he could not identify the perpetrator. He did, however, identify Brannock’s car as the one he had seen leaving the liquor store parking lot.

Miriam Hunter, Appellant’s roommate, also testified for the Commonwealth. She stated that she arrived at the apartment she shared with the Appellant at approximately 8:45 p.m. on the night of the robbery. She testified that Brannock and the Appellant had arrived together a short time later and that both men were acting strangely. She also claimed Appellant gave her a small amount of money but would not disclose its source. Most significantly, she testified that she had previously overheard Appellant and Brannock discussing the possibility of robbing an area pawn shop.

Although Appellant declined to testify or present any evidence at trial, he did participate in a videotaped interview with Detective David Bragg, the lead investigator in the case. During that interview Appellant denied any prior knowledge or intent to commit the crime. He admitted that he had driven to the liquor store with Bran-nock, but he claimed that Brannock had been driving. He also stated that after they arrived he fell asleep in the car and was not awakened until Brannock returned and he announced he had just robbed the store. Another police officer testified that at the time of Appellant’s arrest, a search of his person revealed $188.00 in cash. The case was submitted to the jury for a verdict at the close of the prosecution’s case. The jury found Appellant guilty and he was sentenced to twenty years imprisonment. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

III. ANALYSIS

A. Sufficiency of the Evidence

Appellant’s primary argument is that there was insufficient evidence to support his conviction of First-Degree Robbery by Complicity. Appellant preserved the error with a timely motion for a directed verdict. The standard of review for a trial court’s denial of a motion for directed verdict is set forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). In that case we held:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Id. at 187 (internal citations omitted).

Appellant argues that there was insufficient evidence for the jury to conclude that he had the requisite prior knowledge and intent necessary to justify his conviction for robbery by complicity. He argues that the evidence proved, at best, his guilt as an accessory after the fact to the robbery. We disagree. There was significant circumstantial evidence from which a jury could reasonably conclude that Appellant was guilty. Appellant and Brannock had discussed the possibility of committing a similar crime at an area pawnshop. On a visit to the site of the robbery earlier in the day, the two men joked about the possibility of robbing a liquor store. Upon returning to the liquor store that evening, Brannock instructed Appellant, who was driving Brannock’s car, to park behind and to the side of the store. Brannock entered the liquor store wearing a camouflage jacket, a camouflage bandana on his head, and a red bandana covering his face. He was carrying a shotgun. Although Bran-nock testified that Appellant had no prior knowledge or intent that Brannock would commit the robbery, he admitted that he had donned this apparel and brandished the shotgun in the Appellant’s presence immediately after exiting the car. The two men shared the proceeds of the crime. In light of this evidence and drawing all reasonable inferences in favor of the Commonwealth, the jury’s verdict of guilt was clearly reasonable.

B. Voir Dire Statement

Appellant next alleges that his conviction should be reversed because of the prosecutor’s allegedly impermissible remarks concerning the reasonable doubt standard during voir dire. The entire voir dire statement, including, for context, the ensuing bench conference and the conclusion of that portion of the Commonwealth’s presentation, is as follows:

Attorney for the Commonwealth:
Now ladies and gentlemen, this defendant, as he sits here, is entitled to the presumption of innocence. Every criminal defendant anywhere in the United States, including Kentucky, is entitled to the presumption of innocence. We in the Commonwealth, the prosecutor’s office, we have no problem with that. We’re all for it. That’s been one of the main tenets of the criminal justice sys-tern in the Anglo-Judeo-American law since the Middle Ages, since the Magna Carta. We don’t have any problem with that.
Now, since he is entitled to the presumption of innocence, then it is — the burden is on the Commonwealth, if it can, to prove the case against Mr. Johnson, Eugene Paul Johnson.
Now, since we have that burden of proof we have to prove the case against him, and since he is entitled to the presumption of innocence, which the Judge will instruct you later that he is entitled to, we have to prove the case beyond a reasonable doubt. Now, everything is interactive these days. Let’s try an interactive thing. Let me get a show of hands. How many have heard the term “Beyond a shadow of a doubt”?
[Prospective jurors respond.]
I think it’s safe to say everybody raised their hand. Not surprisingly because this week, especially since I’ve mentioned it, you’ll see it on the TV or you’ll hear it on the radio, or you’ll read it in the newspaper, or you’ll read it in a novel or a book or something — beyond a shadow of a doubt. Now listen carefully. There ain’t no such thing in the criminal justice system in the United States of America. That’s one of the myths that has arisen. Nobody has to prove anything beyond a shadow of a doubt.
Attorney for Appellant:
Judge, can we approach? Judge, the law in Kentucky is clear that nobody can describe a reasonable doubt .. .by saying that there is no such thing as a shadow of a doubt. That is defining reasonable doubt by ruling out alternatives, and I object to it.
Trial Judge:
The voir dire question is — he isn’t saying what reasonable doubt is. He’s just saying what the law is not.
Attorney for Appellant:
But, by implication, he’s—
Trial Judge:
I understand. And if I felt like he were going to cross that line I would sustain it. However, having heard this colloquy before, I know that we fall well short of that. But I understand the. nature of that.
Attorney for Appellant:
Well,- you understand that I haven’t heard this colloquy before.
Trial Judge:
I understand that. And that’s why I say I will overrule it.
Attorney for the Commonwealth (continuing voir dire to the jury pool):
As I was saying, the shadow of a doubt, I don’t care how many times you’ve heard it, it’s myth. What the Commonwealth has to prove is the case beyond a reasonable doubt. Now, I can’t tell you what a reasonable doubt is. The law won’t let me. It won’t let Mr. Brown. Believe it or not, even the Judge can’t tell you what a reasonable doubt is in his instructions. That’s up to you to determine. Whether or not the Commonwealth proves the case beyond a reasonable doubt.

(Emphasis added).

In Commonwealth v. Callahan, 675 S.W.2d 391 (Ky.1984), we held: “trial courts shall prohibit counsel from any definition of reasonable doubt at any point in the trial, and any cases in this jurisdiction to the contrary are specifically overruled.” Id. at 393 (emphasis in original). We reiterate that holding today.

In that same decision, however, we noted that the prosecutor stated:

Now I submit to you that [defense counsel’s definition] is not reasonable doubt. Now, the judge has instructed you in the instructions on what reasonable doubt is. There is a little doubt about whether we are even here today. When I went to college I had some teachers that could practically prove to you that we weren’t even here today. But that’s not what reasonable doubt is. The judge has instructed you in the instructions as to what reasonable doubt is and you read that and follow it.

Id. at 392. (emphasis added). We concluded that the prosecutor’s statement did not constitute “any attempt to define the phrase ‘reasonable doubt,’....” Id. Thus, in the very case that announced the prohibition against defining reasonable doubt, we held that the prosecutor’s allegedly improper statement, which, at most, attempted to show what reasonable doubt was not, did not amount to a violation of the rule against defining “reasonable doubt.”

There is no difference between the prosecutor’s discussion of reasonable doubt in Callahan and the prosecutor’s short statement in this case that “beyond a shadow of a doubt” is not the same as “beyond a reasonable doubt.” Notably, in this case the prosecutor went on to tell the jury pool that he could not define reasonable doubt because such a definition was up to them to determine.

Appellant also cites to Marsch v. Commonwealth, 743 S.W.2d 830 (Ky.1987). The comments in Marsch, however, differ significantly from those in this case. In Marsch, the prosecutor

engaged at length in a discussion of reasonable doubt. He asked [prospective juror] Kirk if he equated “beyond a shadow of a doubt” with “reasonable doubt.” He provided an example using himself as a hypothetical witness to an accident and suggested to the prospective juror that his hypothetical testimony would satisfy the “reasonable doubt” standard, but might not eliminate any possibility of doubt. Finally, the attorney for the Commonwealth explained that there was a significant distinction between being convinced beyond a reasonable doubt and being convinced beyond all or a shadow of a doubt.

Id. at 832. In Marsch, the prosecutor spoke at long length about the reasonable doubt standard. He even went so far as to provide a hypothetical, in which he was a witness, stating that while his testimony alone might satisfy the reasonable doubt standard, it could never eliminate all doubt. It should also be noted that- the reversal in Marsch was not based on this error alone; we found multiple other errors in the jury selection.

In contrast, the prosecutor in this case simply informed the jury that the Commonwealth did not have to prove its case beyond a shadow of a doubt and that the proper standard was proof beyond a reasonable doubt. He offered no hypothetical to explain “beyond a reasonable doubt” and did not engage in a lengthy discussion of the standard. Furthermore, the prosecutor in this case told the jury that he could not define “reasonable doubt.” He stated:

Now, I can’t tell you what a reasonable doubt is. The law won’t let me. It won’t let Mr. Brown. Believe it or not, even the Judge can’t tell you what a reasonable doubt is in his instructions. That’s up to you to determine. Whether or not the Commonwealth proves the case beyond a reasonable doubt.

Thus, even if his prior discussion of “beyond a shadow of a doubt” approached error, any prejudice was alleviated by this follow-up statement.

Additionally, even if one is convinced that the statement by the prosecutor in this case constituted error, that error was harmless. . We have applied harmless error on this precise issue, even in capital murder cases, each time affirming a conviction and sentence of death. In Sanders v. Commonwealth, 801 S.W.2d 665, 671 (Ky.1990), we considered an objection under Callahan to a prosecutor’s voir dire question. The question was: “In a criminal trial, do you realize that the Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt, that does not mean beyond all doubt or a shadow of a doubt?” We concluded,' “[a]s-suming, without deciding, that, an error would have occurred had objection been raised and overruled, we are wholly unconvinced, considering the circumstances, that absent this putative error the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.” Id. at 671 (internal footnote omitted).

Sanders was quoted approvingly in Caudill v. Commonwealth, 120 S.W.3d 635 (Ky.2003), another capital case, wherein we noted that “[t]he prosecutor’s statement that ‘just because there is a question or some unanswered part of the case, that there is automatically reasonable doubt’ did not impermissibly define ‘reasonable doubt.’” Id. at 675. Given our longstanding treatment of this issue, even in the most serious of cases, we conclude that the error alleged in this case was, at worst, harmless.

Finally, the dissent’s suggestion that we have departed from the rule set forth clearly in Callahan is mistaken. To the contrary, this opinion explicitly reiterates that standard while concluding, just as the court did in Callahan, that the prosecutor’s statements were not an impermissible definition of reasonable doubt. Likewise, our decision does not question the correctness of the cases which have relied on Callahan. Quite simply, the foregoing is little more than the application of Callahan, and we neither reverse nor alter its rule today. Notwithstanding the suggestion of the dissent, trial counsel would be loathe to conclude otherwise.

C. Statements of Intent to Commit Another Robbery

The trial court admitted the testimony of Appellant’s roommate, Miriam Hunter, in which she stated that Appellant and Brannock had discussed, some time prior to the robbery, the possibility of committing a similar crime at a nearby pawn shop. It is well-established that determinations as to the relevance and admissibility of evidence are left to the sound discretion of the trial court. Simpson v. Commonwealth, 889 S.W.2d 781, 788 (Ky.1994). Likewise, a judge’s decision to admit certain evidence is subject to reversal only after a finding that the decision amounted to an abuse of discretion. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky.2001). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).

It is with this standard in mind that we must review Appellant’s claim of error. He argues that the admission of Hunter’s testimony was error because it was irrelevant and unduly prejudicial. The Commonwealth argues that the evidence was relevant, as evidence of Appellant’s state of mind, and that its probative value substantially outweighed any prejudicial effect it might have had.

First, Appellant’s argument that the evidence was irrelevant is simply without merit. Relevant evidence is defined in KRE 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The very nature of Appellant’s defense—that he was merely present and was not eompli-cit in the commission of the crime—requires that the jury consider issues of Appellant’s knowledge and intent in deciding the case. Hunter’s testimony, which tends to show that Appellant and Bran-nock discussed the possibility of committing a crime similar to the one at issue here, is clearly relevant to the Appellant’s knowledge and/or intent.

Second, Appellant claims that the evidence was unduly prejudicial and should be barred because it was presented in order to show his propensity to commit the crime in violation of KRE 404(b). Appellant cites Marshall v. Commonwealth, 482 S.W.2d 765 (Ky.1972), where we held that it was reversible error to admit evidence of co-defendants’ prior convictions to prove their propensity to burglarize a store. However, this case is clearly distinguishable on its facts. As discussed above, Hunter’s testimony was submitted as evidence of Appellant’s prior knowledge and/or specific intent on the night of the robbery and not for any prohibited purpose. Admission of evidence describing “other crimes, wrongs or acts” is permissible, “[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1) (emphasis added). As the evidence was introduced for a limited purpose, it was admissible under an exception to the general rule barring the introduction of evidence of other acts.

D. Jury Instructions

Appellant argues that the jury instructions used at his trial were in error and violated his right to due process. The allegedly erroneous instruction is as follows, with emphasis added:

Instruction No. IV Robbery in the First Degree by Complicity
You will find the Defendant guilty of Robbery in the First Degree by Complicity under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 29, 2003 and before finding of the Indictment herein, he, alone or in complicity with another, stole money and checks from Jeremy Poston;
B. That in the course of so doing and with intent to accomplish the theft, he, alone or in complicity with another, used or threatened the immediate use of physical force upon Jeremy Poston; AND
C. That when he, alone or in complicity with another, did so, they were armed with a shotgun.

Appellant claims that inclusion of the word “alone” in the jury instructions effectively allowed the jury to convict him either as an accomplice, as he was charged, or as a principal, though he was not charged as such. Appellant admits that this error was not properly preserved at trial, but he insists we review it as palpable error pursuant to RCr 10.26.

To review an unpreserved error under this rule, the error must be palpable, must affect the substantial rights of the defendant, and must result in manifest injustice. RCr 10.26; see also Nichols v. Commonwealth, 142 S.W.3d 683, 691 (Ky.2004). The Commonwealth conceded in its brief that no evidence was introduced proving that Appellant acted as a principal in the robbery. In fact, the Commonwealth’s arguments at trial premised Appellant’s culpability for the crime solely on the theory of complicity. The prosecutor made statements during both voir dire and during his opening statement to the jury that Appellant never entered the store and waited in the car during the robbery. In short, there was neither any suggestion by the Commonwealth nor any evidence presented on which a reasonable juror could conclude that Appellant had acted as a principal in the robbery. Given these circumstances, we conclude that any error in the jury instructions was not palpable, did not affect Appellant’s substantial rights, and did not result in manifest injustice.

IV. CONCLUSION

For the foregoing reasons, Appellant’s conviction is affirmed.

GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ., concur.'

COOPER, J., dissents by separate opinion in which LAMBERT, C.J., joins.

COOPER, Justice,

dissenting.

“Those who cannot remember the past are condemned to repeat it.” George Santayana, The Life of Reason or The Phase of Human Progress 284 (2d ed.1924).

[A]ll counsel shall refrain from any expression of the meaning or definition of the phrase “reasonable doubt.”

Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky.1984). Unfortunately, those who have joined the majority opinion in this case either have forgotten or choose not to remember what led this Court to that ruling. As noted in Callahan, id. at 392, that case was simply “part of the progeny spawned, by Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).”

In Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965), our predecessor court had addressed the issue as follows:

There have been many definitions of reasonable doubt, and we are not so presumptuous as to fancy we can coin a better one here. But it should be observed that a reasonable doubt cannot mean any doubt. There is some doubt about everything. A reasonable doubt is a substantial doubt, a real doubt, in that the juror must ask himself not whether a better case might have been proved, but whether after hearing the evidence the juror himself actually doubts that the defendant is guilty.

Id. at 729.

Presumptuous or not, our predecessor court subsequently amended RCr 9.56 to adopt the Merritt definition and require that juries in every criminal case be instructed, inter alia, as follows:

If upon the whole case you have a reasonable doubt as to the defendant’s guilt, you will find him not guilty. The term “reasonable doubt” as used in these instructions means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proved but whether after hearing all the evidence you actually doubt that the defendant is guilty.

In Taylor, the issue was not whether this instruction properly defined “reasonable doubt” but whether it was also necessary to instruct the jury on the presumption of innocence. Following existing Kentucky precedent, our Court of Appeals had held that “as long as the trial court instructs the jury on reasonable doubt an instruction on the presumption of innocence is not necessary.” Taylor v. Commonwealth, 551 S.W.2d 813, 814 (Ky.App.1977) (citing Swango v. Commonwealth, 291 Ky. 690, 165 S.W.2d 182 (1942); Mink v. Commonwealth, 228 Ky. 674, 15 S.W.2d 463 (1929)). We denied discretionary review, but the United States Supreme Court granted certiorari. Taylor v. Kentucky, 434 U.S. 964, 98 S.Ct. 502, 54 L.Ed.2d 449 (1977).

In holding that it was prejudicial error to refuse to instruct the jury on the presumption of innocence, the U.S. Supreme Court characterized the trial court’s instructions as “skeletal” and “Spartan.” Taylor v. Kentucky, 436 U.S. 478, 486, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978). The Court noted further that the trial court’s “truncated discussion of reasonable doubt ... was hardly a model of clarity” and “often has been criticized as confusing.” Id. at 488, 98 S.Ct. at 1936. The Court proceeded to hold that the failure to separately instruct the jury on the presumption of innocence, especially in light of the “confusing” definition of reasonable doubt coupled with certain inherently misleading assertions made by the prosecutor during opening and closing arguments, denied the accused his right to due process of law. Id. at 486-90, 98 S.Ct. at 1935-38.

Rather than attempt to formulate a new, less “confusing” definition of “reasonable doubt,” our predecessors on this Court “[threw] in the towel,” Whorton v. Commonwealth, 570 S.W.2d 627, 631 (Ky.1978), rev’d, Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), and amended RCr 9.56 to read:

(1) In every case the jury shall be instructed substantially as follows:
“The law presumes a defendant to be innocent of a crime, and the indictment shall not be considered as evidence or as having any weight against him or her. You shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that he or she is guilty. If upon the whole case you have a reasonable doubt that he or she is guilty, you shall find him or her not guilty.”
(2) The instructions should not attempt to define the term “reasonable doubt.”

(Emphasis added.)

That, of course, did not prevent prosecutors and defense counsel from formulating their own sometimes elaborate explanations of what was or was not a “reasonable doubt” during voir dire, opening statements, and closing arguments. In fact, our predecessor court probably invited this practice when it said in Cox v. Cooper, 510 S.W.2d 530 (Ky.1974): “Our approach to instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.” Id. at 535. Thus, in Callahan, defense counsel defined “reasonable doubt” as “any doubt,” and the prosecutor told the jury that “[tjhere is a little doubt about whether we are even here today.” Callahan, 675 S.W.2d at 392. Noting the incongruity of prohibiting trial judges from defining “reasonable doubt” while permitting the parties to invent their own self-serving definitions, the Court extended the RCr 9.56(2) prohibition against attempting to define “reasonable doubt” to trial counsel.

Having prohibited the court from definition of the term “reasonable doubt” in the instructions by RCr 9.56(2), we can hardly condone a client-serving definition by defense counsel or prosecutor in either voir dire, opening statement or closing argument. As stated in Taylor, supra [Taylor v. Kentucky, 436 U.S. at 488-89, 98 S.Ct. at 1936], "... arguments of counsel cannot substitute for instructions by the court.” We do not intend by this holding that counsel ean-not point out to the jury which evidence, or lack thereof, creates reasonable doubt, but all counsel shall refrain from any expression of the meaning or definition of the phrase “reasonable doubt.” As stated in Wigmore, supra [9 Wigmore, Evidence, § 2497 (Chadboum rev. 1981) ], page 408:
The effort to perpetuate these elaborate unserviceable definitions is a useless one and serves today chiefly to aid the purpose of the tactician. It should be abandoned.

Id. at 393 (emphasis added).

In Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988), we held that “[t]he prosecutor improperly defined reasonable doubt to the jury,” id. at 544, but did not recite the nature of the remark. However, in Marsch v. Commonwealth, 743 S.W.2d 830 (Ky.1987), we held that a “clear-cut violation” of Callahan occurred when the prosecutor told a juror during individual voir dire that “there was a significant distinction between being convinced beyond a reasonable doubt and being convinced beyond all or a shadow of a doubt.” Id. at 832-33.

As in Marsch, the prosecutor in the case sub judice undertook to express the meaning of “reasonable doubt” (not which evidence or lack thereof created reasonable doubt) by informing the jurors during voir dire, over Appellant’s objection, that “beyond a reasonable doubt” does not mean “beyond a shadow of a doubt.”

Let me get a show of hands. How many have heard the term “beyond a shadow of a doubt”?
(Prospective jurors respond by raising their hands.)
I think it’s safe to say everybody raised their hands_ Now listen carefully. There ain’t no such thing in the criminal justice system in the United States of America. That’s one of the myths that has arisen. Nobody has to prove anything beyond a shadow of a doubt.
... [T]his “shadow of a doubt,” I don’t care how many times you’ve heard it. It’s a myth. What the Commonwealth has to prove is a case beyond a reasonable doubt.

The majority opinion’s reliance on Caudill v. Commonwealth, 120 S.W.3d 635, 675-76 (Ky.2003), and Sanders v. Commonwealth, 801 S.W.2d 665, 671 (Ky.1990), is misplaced. Unlike the case sub judice, there was not a contemporaneous objection to the prosecutor’s discussion of the meaning of reasonable doubt in either Caudill or Sanders. In both cases, we applied the standard of review for unpreserved errors in death penalty cases and held that “we are wholly unconvinced, considering the circumstances, that absent this putative error the [appellants] may not have been found guilty of a capital crime, or the death penalty may not have been imposed.” Caudill, 120 S.W.3d at 675-76; Sanders, 801 S.W.2d at 671.

With today’s decision, we have regressed to where we were in 1978. Trial courts cannot instruct juries as to the meaning or definition of “reasonable doubt,” but prosecutors and defense counsel can urge juries to adopt their own client-serving definitions (for surely this Court is not holding that a prosecutor can tell the jury its version of the meaning of reasonable doubt but defense counsel cannot). If jurors are to be instructed on the meaning or definition of reasonable doubt, the instruction should come from the neutrality of the bench, not the advocacy of counsel. However, I believe Callahan struck the right chord, as one can only surmise what definition would pass constitutional muster. Taylor was not the last case reversed by the United States Supreme Court because of an improper definition of “reasonable doubt.” In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), abrogated on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991), the Court held that it was reversible error for a state court to instruct the jury as follows:

“[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your minds by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.”

Id. at 40, 111 S.Ct. at 329. I perceive no real distinction between an “absolute or mathematical certainty” and “beyond a shadow of a doubt.” If a trial court cannot instruct a jury that “reasonable doubt” does not mean “beyond a shadow of a doubt,” then a prosecutor should not be allowed to do so.

Accordingly, I dissent.

LAMBERT, C.J., joins this dissenting opinion.

      . Appellant’s objection to the admission of this evidence is discussed infra at Part III.C.

      . I remember one particularly tedious closing argument during which defense counsel attempted to explain the meaning of "reasonable doubt” by telling the jurors to imagine a giant curtain across the courtroom that blocked their view of the witness stand, then gradually opening the imaginary curtain while informing the jurors that even that much blockage constituted a reasonable doubt.


source: Caselaw Access Project

author: /s/ Joseph E. Lambert CHIEF JUSTICE

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, CLE COMMISSION, Movant, v. Gregory Scott STAPLES, Respondent.
    No. 2005-SC-0902-KB.
    Supreme Court of Kentucky.
    Feb. 23, 2006.
   OPINION AND ORDER

On November 3, 2005, this Court issued an Order directing Respondent, Gregory Scott Staples of Versailles, Kentucky, to show cause why he should not be suspended from the practice of law pursuant to SCR 3.669(3) for failure to comply with SCR 3.661 Continuing Legal Education (CLE) requirements for the 2004-2005 educational year. Respondent is deficient 11.75 total credits, including 1.25 ethics credits from the CLE requirements of SCR 3.661.

In response to the Order, Respondent stated his intention to attend a program in December 2005 that would award sufficient CLE credits to correct his past noncompliance. He offers no mitigating circumstances or explanation for his deli-quency.

In reply, the Kentucky Bar Association CLE Commission stated its belief that Respondent has not shown adequate cause why he should not be suspended. In support of its belief, the KBA cites Respondent’s disregard of numerous communications concerning his CLE deficiency, including five written notices and a telephone call between May and September 2005. In September 2005, Respondent submitted a corrected Annual Statement, which reported credits from the Kentucky Law Update 2004. Respondent indicated that he attended the program in both Lexington and Louisville, and requested that these credits be applied to the 2004-2005 educational year requirement. However, upon review of the CLE records, the KBA discovered that Respondent had not registered or pre-registered for either the Lexington or Louisville Kentucky Law Update 2004. Shortly thereafter, a KBA representative wrote to Respondent to advise him that there was no record of his attendance at these CLE programs, and requested additional verification. This letter was returned as undeliverable.

Nonetheless, on October 17, 2005, Respondent called and spoke with the Assistant Director of the CLE Commission regarding his CLE status. He indicated that he had lost all records of his attendance at the Kentucky Law Update 2004 during a move and divorce in 2004. Respondent was advised that he could provide additional verification in the form of an affidavit from someone who saw him at the program. Respondent indicated his intent to obtain such verification. Finally, Respondent was advised to obtain enough CLE credits before he filed his response to this Court’s Order, so that such credits could be applied retroactively to fulfill his deficiency. Since this conversation, Respondent has failed to provide additional evidence that he attended the Kentucky Law Update 2004, or to certify any additional, new credits.

We find that Respondent has failed to show sufficient cause why he should not be suspended from the practice of law. Accordingly, it is hereby ORDERED as follows:

(1) Respondent is suspended from the practice of law as defined by SCR 3.020 pursuant to SCR 3.669(4) until such time as this Court enters an order restoring his membership to the Kentucky Bar Association;

(2) Respondent shall not file an application for restoration until such time as any CLE deficiency of record and existing requirements are met as set forth in SCR 3.675;

(3) Pursuant to SCR 3.390 it is hereby ordered that Respondent, within ten (10) days of the date of entry of this order, provide notice to any clients he is currently representing of his inability to provide further legal services, and to notify all courts of his inability to represent them, and of the necessity and urgency to promptly retain new counsel. Such notification shall be by letter duly and timely placed in the United States mail, and Respondent shall simultaneously and in the same manner provide a copy of all such letters to the director of the Kentucky Bar Association.

All concur.

Entered: February 23, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    Jeffrey C. McKENZIE, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0943-KB.
    Supreme Court of Kentucky.
    Feb. 23, 2006.
   OPINION AND ORDER

Movant, Jeffrey C. McKenzie, whose bar roster address is 2615 Cleinview Avenue, Apt. # 3, Cincinnati, Ohio, has been charged with violations of SCR 3.130-1.3, 1.4(a) and 1.16(d) by the Kentucky Bar Association. These charges arise from Movant’s failure to properly handle a client’s bankruptcy matter, and are contained in KBA File # 10803. At the time these charges were brought, KBA File # 9978 was pending against Movant. Therein, Movant is charged with violation of SCR 3.130-8.3(b) by engaging in criminal conduct, and for violation of SCR 3.130-8.1(b) by failing to respond to lawful demands for information by the KBA concerning this criminal conduct. Movant now moves this Court to impose the sanction of suspension until March 28, 2008, of which 120 days would be served with the remainder conditionally probated. The KBA has no objection to the motion.

We first address the incidents giving rise to KBA File # 9978. In addition to practicing law, Movant is also a registered nurse. On October 18, 2002, the Movant arrived at the parking lot of St. Luke’s Hospital in Florence, Kentucky, brandishing a loaded gun and behaving erratically. Claiming that several men were threatening him, he shot two holes through his car window. Later, Movant tested positive for cocaine and additional drugs and syringes were discovered in his employee’s locker in the hospital. No criminal charges were filed against Movant.

The KBA Inquiry Commission issued a complaint on December 11, 2002. Following repeated unsuccessful attempts via the postal service, the Kenton County Sheriff finally served the complaint on May 9, 2003. Movant filed a response on July 24, 2003. For the next year, the KBA made repeated attempts to obtain additional information concerning any criminal repercussions of his conduct, but Movant failed to reply to any of these communications. The KBA then charged Movant with a violation of SCR 3.130-8.3(b) by engaging in criminal conduct by testing positive for cocaine and by possessing additional illegal drugs. Also, the KBA charged Movant with a violation of SCR 3.130 — 8.1(b) for failing to respond to the KBA’s requests for information from a disciplinary authority-

Movant then filed an answer to the KBA’s charges and a trial commissioner was appointed. Meanwhile, the Kentucky Board of Nursing temporarily suspended Movant from the practice of nursing. The suspension was affirmed after Movant agreed to be referred to the Kentucky Alternative Recovery Effort (KARE) for nurses in lieu of formal disciplinary action. Recognizing that the KARE program is substantially similar to the Kentucky Lawyer’s Assistance Program (KYLAP), the KBA and Movant began exploring the possibility of consensual discipline.

In the interim, charges were brought in KBA File # 10803 for violations of SCR 3.130-1.3, 1.4(a) and 1.16(d). All charges related to Movant’s handling of a bankruptcy matter for his client, Nancy Lan-ders. Mrs. Landers and her husband met with Movant, who agreed to handle their petition for bankruptcy and collected a fee for such. Thereafter, communication between attorney and client was sporadic and, frustrated by Movant’s inability to inform her about the status of the case, she contacted the KBA Client Assistance Program. Though Movant disputed portions of Mrs. Landers’ version of events, it is undisputed that Movant never filed the bankruptcy petition despite informing his client that he had, faded to return the fee paid by Mrs. Landers, and failed to timely notify Mrs. Landers that his practice had been closed and her case forwarded to another attorney.

The Board of Governors found Movant guilty of three counts. Movant violated SCR 3.180-1.3 by failing to exercise reasonable diligence and promptness in representing Mrs. Landers, and by failing to file or pursue her petition for bankruptcy. Movant violated SCR 3.130-1.4(a) by failing to keep Mrs. Landers informed about the status of her bankruptcy matter and by failing to respond to her requests for information. Finally, Movant violated SCR 3.130-1.16(d) by failing to refund that portion of the fee paid to him by Mrs. Landers that had not been earned. Mov-ant admits that he is guilty of all three counts.

We also note that Movant was previously suspended from the practice of law on January 16, 2004, for the non-payment of bar dues and non-compliance with continuing legal education requirements. He currently remains suspended.

Movant recognizes that a serious drug abuse problem lies beneath all of the above-referenced charges, and acknowledges guilt in all five counts. He now moves this Court for suspension until March 28, 2008, of which 120 days would be served, with the remainder conditionally probated. This suspension would serve as combined discipline for both charges brought against Movant, and would also incorporate a pre-existing supervision agreement through KYLAP. The supervision agreement also expires on March 28, 2008. The KBA has no objection to Mov-ant’s motion.

We have reviewed cases with similar circumstances and charges. See KBA v. Colston, 54 S.W.3d 158 (Ky.2001) (attorney’s criminal conduct resulted in a suspension of six months with the suspension conditionally probated for two years); KBA v. Rankin, 862 S.W.2d 894 (Ky.1993) (attorney’s criminal conduct warranted a public reprimand and probated six-month suspension). However, we must also take into account the nature of Movant’s criminal conduct and the fact that he is currently suspended for non-payment of dues and non-compliance with CLE requirements. Nonetheless, we have also considered Mov-ant’s compliance with the KARE supervision agreement for the past two years, and his willingness to continue to abide by the terms of both the KARE and KYLAP supervision agreements. The KARE supervision agreement is a five-year agreement and requires Movant’s complete sobriety, as well as chemical dependency treatment, random drug testing, and participation in a twelve-step program such as Alcoholics Anonymous. The KBA Supervision Agreement similarly requires that Movant abstain from all alcohol and drugs, report on a monthly basis to the Director of KYLAP, and abide by the terms of his supervision agreement with KARE.

Therefore, being duly advised, it is the order of this Court that Movant is suspended from the practice of law until March 28, 2008, with one hundred twenty (120) days to serve and the remainder conditionally probated according to the following terms:

(1) Movant abide by all the conditions of supervision' by KYLAP as set forth in the “Supervision Agreement” entered into on October 14, 2005;

(2) Movant comply with all the terms of the “Program Agreement” entered into with the Kentucky Board of Nursing Alternative Recovery Effort for Nurses on March 28, 2003;

(3) In the event Movant violates the terms of this sanction at any time prior to March 28, 2008, the KBA may file a motion with this Court requesting the issuance of a show cause order directing Movant to show cause, if any, why his probation should not be revoked and why the remainder of the suspension period should not be imposed;

(4) At the expiration of the probation period set forth above, and in the event of Movant’s full compliance with, and performance of, all of the conditions imposed herein, the Order of Suspension shall be terminated, and all of the terms of Mov-ant’s probation shall be terminated;

(5) Due to Movant’s current suspension for non-payment of bar dues and noncompliance with CLE requirements, Mov-ant shall not be eligible for reinstatement under SCR 3.510 until such time as any CLE deficiency of record and existing requirements are met as set forth in SCR 3.675;

(6) The Movant shall pay all costs associated with the investigation and proceedings of KBA File # 9978 and File # 10803, in accordance with SCR 3.450, which now totals $230.38, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

Entered: February 23, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    Dennis Michael STUTSMAN, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-1003-KB.
    Supreme Court of Kentucky.
    Feb. 23, 2006.
   OPINION AND ORDER

Movant, Dennis Michael Stutsman, who maintains a bar roster address at 498 Georgetown Street, P.O. Box 12947, Lexington, Kentucky, was admitted to the practice of law in the Commonwealth of Kentucky on April 27, 1987. On September 25, 2005, the Inquiry Commission charged Movant with three counts of professional misconduct. Movant admits guilt in each of the charges and now moves this Court to sanction him with a public reprimand.

Movant was formerly a supervisor in the Criminal Appeals Division of the Department of Public Advocacy. On July 30, 2004, the Kentucky Court of Appeals held Movant in contempt of court in three cases for failing to comply with previous orders of the court and for failure to timely file a brief for the Appellant in each case. The Court of Appeals further referenced six other cases in which Movant disregarded procedural steps in the appellate process and repeatedly missed deadlines, motions, and responses to show causes orders. Movant was fined $500, and the matter was referred to the KBA for disciplinary proceedings.

Subsequently, the Inquiry Commission charged Movant with violating: (1) SCR 3.130-1.3, which provides that a “lawyer should act with reasonable diligence and promptness in representing a client”; (2) SCR 3.130-3.2, which provides that “a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client”; and (3) SCR 3.130-3.4(c), which provides that a lawyer shall not “knowingly or intentionally disobey an obligation of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Movant admits that he has violated these rules and requests this Court to issue a public reprimand. The KB A responds that it has no objection.

THEREFORE, IT IS HEREBY ORDERED:

(1) Movant, Dennis Michael Stutsman, is publicly reprimanded for violations of SCR 3.130-1.3, SCR 3.130-3.2, and SCR 3.130-3.4(c).

(2) Pursuant to SCR 3.450, Movant is directed to pay all costs associated with these disciplinary proceedings, said sum being $235.65, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

Entered: February 23, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: PAISLEY, Senior Judge.

text:
    Charles FAMBROUGH, Appellant v. DEPARTMENT OF CORRECTIONS, Offender Information Services, Appellee.
    No. 2005-CA-000033-MR.
    Court of Appeals of Kentucky.
    Feb. 3, 2006.

      Charles Fambrough, Burgin, KY, pro se.
    Brenn 0. Combs, Kentucky Justice & Public Safety Cabinet Office of Legal Services, Frankfort, KY, for Appellee.
    Before COMBS, Chief Judge; McANULTY, Judge; PAISLEY, Senior Judge.

      . Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and ICRS 21.580.

   OPINION

PAISLEY, Senior Judge.

On November 7, 2003, Charles D. Famb-rough, Jr., appeared in Jefferson Circuit Court and pled guilty to sodomy in the first degree, assault in the second degree, criminal attempt-rape in the first degree, sexual abuse in the first degree, intimidating a witness and unlawful imprisonment in the second degree. Subsequently, on December 23, 2003, the trial court sentenced Fambrough to a total of ten years in prison. In the trial court’s judgment of conviction and sentence, it did not state whether Fambrough’s victim suffered either death or serious physical injury. Nevertheless, the Kentucky Department of Corrections (DOC) classified Fambrough as a “violent offender” pursuant to Kentucky Revised Statutes (KRS) 439.3401. KRS 439.3401, which is also known as the “violent offender statute,” requires an inmate who has been classified as a violent offender to serve eighty-five percent of his sentence before being eligible for parole.

On May 7, 2004, Fambrough filed a pro se petition for declaratory judgment with the Franklin Circuit Court seeking to prohibit DOC from classifying him as a violent offender. The circuit court denied Famb-rough’s petition, and now he appeals to this Court.

On appeal, Fambrough points out that the Jefferson Circuit Court did not state in its judgment that his victim suffered either death or serious physical injury, nor did the trial court expressly state that he was being sentenced pursuant to the violent offender statute. According to Fambrough, a portion of KRS 439.3401(1) reads, “[t]he court shall designate in its judgment if the victim suffered death or serious physical injury.” He insists that this requirement is mandatory; thus, for DOC to classify him as a violent offender, the trial court had to include the “death or serious physical injury” language in its judgment.

When we interpret a statute, we attempt to determine and effectuate the legislature’s intent. KRS 446.080(1); Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky.2004). In addition, we will neither add language to nor subtract language from the statute. Nor will we interpret it in such a way to produce an absurd result. Commonwealth v. Reynolds, supra.

Subsection one of the violent offender statute reads:

As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim, or rape in the first degree or sodomy in the first degree of the victim, burglary in the first degree accompanied by the commission or attempted commission of a felony sexual offense in KRS Chapter 510, burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060, burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040, or robbery in the first degree. The court shall designate in its judgment if the victim suffered death or serious physical injury. (Emphasis added.)

KRS 439.3401(1). As can be seen, the violent offender statute does not apply to all Class B felonies, and the violent offender statute is not simply limited to those Class B felonies in which the victim died or suffered serious physical injuries. The statute clearly states that a violent offender is anyone who has pled guilty to or was convicted of sodomy in the first degree. KRS 439.3401(1). The statute applies to all convictions for sodomy in the first degree; just as it applies to all convictions for any capital offense, for any Class A felony and for rape in the first degree regardless whether the victim suffered death or serious physical injury. See Jackson v. Taylor, 153 S.W.3d 842 (Ky.App.2004). In the present case, the judgment reflects that Fambrough pled guilty to sodomy in the first degree. This was sufficient to put DOC on notice that the violent offender statute applied to him. DOC correctly classified Fambrough as a violent offender pursuant to KRS 439.3401(1) despite the absence of the “death or serious physical injury” language from the trial court’s judgment. Thus, the Franklin Circuit Court properly denied Fambrough’s petition for declaratory judgment.

The judgment of the Franklin Circuit Court is affirmed.

ALL CONCUR.


author: RICHARD B. TEITELMAN, Judge. STEPHEN N. LIMBAUGH, JR., Judge,

text:
    Nicholas B. REED, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 87082.
    Supreme Court of Missouri, En Banc.
    Feb. 14, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Special Asst. Atty. Gen., Jefferson City, for Appellant.
    Larry A. Reed, St. Louis, for Respondent.
   RICHARD B. TEITELMAN, Judge.

Nicholas Reed was arrested on suspicion of driving while intoxicated over three hours after he backed his truck into a ditch and walked home. Section 577.039 prohibits arrests without a warrant in driving while intoxicated cases if the arrest without a warrant is made more than one and one half hours after the claimed violation. However, an arrest without a warrant is permitted if the person to be arrested “left the scene of an accident or was removed from the scene to receive medical treatment.” There was no accident within the meaning of section 577.039, RSMo 2000. The arrest without a warrant was, therefore, in violation of section 577.039, and the chemical analysis of Reed’s blood alcohol content was inadmissible. The circuit court’s judgment reinstating Reed’s driving privileges is affirmed.

FACTS

At approximately 3:00 a.m. on December 20, 2003, Nicholas Reed backed his truck into a ditch along a street in Rolla, Missouri. Approximately three hours later, Sergeant Mark Reynolds of the Missouri Highway Patrol observed a pickup truck “backed off into a ditch with the emergency flasher activated.” The front half of the truck was blocking a lane of traffic. The truck was unoccupied and appeared to have been there for some time, as the engine was cold and frost had accumulated. The truck was not damaged. There was no damage to adjacent property.

Sgt. Reynolds contacted a tow service to have the truck removed from the ditch. The tow service told Sgt. Reynolds that the truck owner had just called and requested that the truck be towed to his residence. At Sgt. Reynold’s request, the Rolla police department sent an officer to the owner’s residence to pick up the vehicle owner and return him to the scene.

At 6:30 a.m., the Rolla police officer returned to the truck with Reed. Reed told Sgt. Reynolds that he had missed a turn onto a street and that he backed into the ditch while turning back around. While Reed was speaking, Sgt. Reynolds noticed an odor of intoxicants and observed that Reed’s eyes were bloodshot and that his speech was slurred. Reed admitted that he had consumed four or five beers between 11:00 p.m. and 1:00 a.m. but denied that he had consumed any alcohol since backing his track into the ditch. Sgt. Reynolds administered field sobriety tests, and, at 6:46 a.m., arrested Reed. Sgt. Reynolds also issued Reed a citation for careless and imprudent driving.

Reed was transported to the Phelps County Sheriffs Department and advised of his Miranda rights and his rights under Missouri’s implied consent law. Reed consented to a breath test. The test results indicated that Reed’s blood alcohol content was 0.136%. Sgt. Reynolds served Reed with a notice that his driving privileges were suspended and a citation for careless and imprudent driving in violation of section 304.012.

The director administratively suspended Reed’s driving privileges. Reed filed a petition for a trial de novo. The director answered, stating that “[Reed] was arrested upon probable cause on or about December 20, 2003, in Phelps County, Missouri, and that [Reed] was operating a motor vehicle in the State of Missouri with a blood alcohol content exceeding the limits in section 302.500-302.540 RSMo.... ” Reed filed a motion for judgment on the pleadings and, alternatively, for summary judgment. Reed argued that his driving privileges should be reinstated because his arrest was illegal under section 577.039 in that he was arrested without a warrant more than one and one-half hours after the claimed violation occurred. In response, the director argued that section 577.039 was inapplicable because Reed left the scene of an “accident”, and, in any event, that the exclusionary rale does not apply in a civil proceeding to suspend or revoke driving privileges. The circuit court reinstated Reed’s driving privileges because the arrest “was not valid under Missouri statutes.” The director appeals.

STANDARD OF REVIEW

The circuit court’s judgment purports to sustain Reed’s motion for judgment on the pleadings. However, Reed attached to his motion a copy of the ticket he received for careless and imprudent driving. The ticket was not a part of the pleadings. The court also allowed the director to present additional facts for the court to consider in ruling on the motion. Rule 55.27(b) states that if matters outside the pleadings are presented to and not excluded by the circuit court, then motion for judgment on the pleadings must be treated as one for summary judgment. Consequently, the judgment is reviewed de novo and the issue is whether Reed was entitled to judgment as a matter of law. ITT Commercial Finance v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993).

ANALYSIS

The director argues that: (1) the circuit court erred in setting aside the suspension because Reed was lawfully arrested under Section 577.039; (2) it is irrelevant whether Reed was lawfully arrested pursuant to section 577.039; and, (3) that the blood alcohol test results were lawfully obtained regardless of whether Reed had been lawfully arrested for DWI.

Reed was not lawfully arrested under section 577.039. In relevant part, section 577.039 provides that an arrest without a warrant for driving while intoxicated or driving with an excessive blood alcohol content is lawful when “made within one and one-half hours after such claimed violation occurred, unless the person to be arrested has left the scene of an accident or has been removed from the scene to receive medical treatment.”

It is undisputed that Reed walked home after backing his truck into the ditch and was not removed from the scene to receive medical treatment. Reed was then arrested without a warrant more than one and one-half hours after he allegedly drove while intoxicated. The arrest of Reed without a warrant was thus illegal unless Reed “left the scene of an accident” when he walked home after backing his truck into the ditch.

The term “accident” is not defined in section 577.039. The director argues that an “accident” includes any unintentional mishap involving a motor vehicle even if there is no personal injury or property damage. The director’s argument is foreclosed by other statutes and the published opinion of the Department of Revenue.

Statutes relating to the same subject matter should be construed consistently with one another. Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990). Section 577.039 and section 577.060 both deal with motor vehicle accidents. Section 577.060 provides that a person “commits the crime of leaving the scene of a motor vehicle accident” if he or she, “knowing that an injury has been caused to a person or damage has been caused to property, ... leaves the place of the injury, damage or accident” without giving specified information to police or the injured party. Section 577.060, which is included in the same chapter as section 577.039, unambiguously provides that the crime of leaving the scene of an accident requires a showing of either personal injury or property damage. The director’s argument that an “accident” under section 577.039 does not require personal injury or property damage creates a needless inconsistency with section 577.060. In order for section 577.039 to be consistent with section 577.060, the term “accident” in section 577.039 also requires either property damage or personal injury.

This conclusion is further supported by the Department of Revenue’s published position in the Missouri Driver’s Guide regarding when an “accident” has occurred. The September 2004 edition of the Driver’s Guide states that “[a]n accident is when you injure yourself or someone else, or cause damage to property, while driving your vehicle.” Under the Department’s own interpretation of the term, Reed was not involved in an accident because he caused no personal injury or property damage when he backed his car into the ditch. Reed was not involved in an accident as that term is used in the relevant statutes. Contrary to the director’s argument, Reed was arrested in violation of section 577.039 because he was arrested without a warrant more than one and one half hours after the violation and he did not leave the scene of an “accident” within the meaning of the statute.

Given that the arrest was in violation of section 577.039, the next issue is whether the test results are admissible. The legislature has determined that anyone who operates a motor vehicle on public roads in this state impliedly consents to taking a chemical test to determine whether he or she is driving intoxicated. The implied consent law was adopted in part “to establish a fixed standard for procuring admissible evidence of blood alcohol for use against persons operating automobiles while intoxicated.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 619 (Mo. banc 2002). “The statutes and corresponding regulations establish the foundation which justifies the admission of a chemical analysis for blood alcohol independent of common law rules of evidence.” Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992).

Section 577.037, RSMo Supp.2003, governs the admissibility of chemical tests to establish a driver’s blood alcohol content in license suspension and revocation proceedings. Section 577.037.1 provides that a chemical analysis of a person’s blood alcohol content is admissible and that a blood alcohol content of 0.08% is prima facie evidence of intoxication. Section 577.037.4 limits the admissibility test results by providing that “in order to give rise to the presumption or to have the effect provided in subsection 1,” a chemical analysis “shall have been performed as provided in sections 577.020 to 577.041.... ” The reference to the “effect provided in subsection 1” is to the provision in section 577.037.1 that chemical analysis of a person’s blood alcohol content is admissible. Therefore, admissibility is conditioned upon the requirement that the tests “shall” be performed in compliance with section 577.020 to 577.041. A failure to comply with the provisions of sections 577.020 to 577.041 means that the chemical analysis is not admissible in civil proceedings to suspend or revoke a driver’s license. Section 577.039 is among the provisions regulating the performance of a chemical analysis of a person’s blood alcohol content. As determined above, Reed was arrested in violation of section 577.039. Accordingly, the blood alcohol test results obtained from the arrest in violation of section 577.039 are not admissible.

The director’s final argument, one not advanced in the circuit court, is that even if Reed was arrested in violation of section 577.039, the test results are admissible because Reed was also arrested for careless and imprudent driving. Section 577.039 applies only to arrests for driving while intoxicated or driving with excessive blood alcohol content. The director argues that the arrest was thus valid under section 577.020.1(1), which permits an arrest “for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition _” Although Reed was issued a citation for careless and imprudent driving, he was arrested for driving while intoxicated. Reed’s arrest, as well as the admissibility of the blood alcohol test results, is governed by section 577.039. The circuit court correctly held that the blood alcohol results obtained from Reed were inadmissible.

The judgment is affirmed.

WOLFF, C.J., LAURA DENVIR STITH and WHITE, JJ., concur.

LIMBAUGH, J., dissents in separate opinion filed.

PRICE and RUSSELL, JJ., concur in opinion of LIMBAUGH, J.

STEPHEN N. LIMBAUGH, JR., Judge,

dissenting.

I respectfully dissent.

Nicholas Reed had an accident. He ran his vehicle off the road and got it stuck in a ditch so that he had to walk home and call for a tow truck to pull it out. He did not intend for this to happen. The case is as simple as that.

The word “accident,” of course, has a plain and ordinary meaning. It is not a legal term or a term of art, nor is it given a separate and special definition in section 577.039, the statute in question. Instead, the plain meaning of the word is to be found in the dictionary. Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003). An accident, then, is:

la: an event or condition occurring by chance or arising from unknown or remote causes ... [or] b: lack of intention or necessity: chance — often opposed to design ... [or] c: an unforeseen unplanned event or condition ... [or, most pertinently] 2a: a usu. sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result....

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 11 (1986).

Obviously, Reed’s misconduct falls within all of these overlapping definitions, so much so that one wonders how the Court perceives otherwise. Indeed, just last term, in State v. Madorie, 156 S.W.3d 351 (Mo. banc 2005), a DWI ease, this Court reviewed nearly identical circumstances in which a driver “got stuck in the ditch” after “trying to turn around” and repeatedly referred to the incident as an “accident.” And further, for what it’s worth (and in blatant contravention of the representations in Reed’s brief!), the alcohol influence report filed by the arresting officer makes at least three independent references to an “accident” having occurred.

If a word in a statute has a plain and ordinary meaning, and if there is no specific statutory definition to the contrary, the plain and ordinary meaning controls, and there is no need to apply rules of statutory construction. Vance Bros., Inc. v. Obermiller Const. Services, Inc., 181 S.W.3d 562 (Mo. banc 2006). That is the case here. The words in the statutes are not ambiguous, so there is no need for statutory construction.

Nonetheless, the majority relies on the rule that “statutes relating to the same subject matter should be construed consistently with one another,” to superimpose the elements of the crime of leaving the scene of an accident from section 577.060 on to a different statute using similar terms, section 577.039. These elements, however, which “require a showing of either personal injury or property damage,” are specific to section 577.060 and do not purport to extend to any other statute. Furthermore, the fact that the two statutes use similar terms does not necessarily mean that “they are statutes relating to the same subject matter.” In my view, the two statutes relate to different subjects: section 577.060 imposes substantive criminal liability on the act of leaving the scene of an accident; in contrast, section 577.039 sets out the procedural rules pertaining to warrantless arrests in DWI cases. In short, I see nothing in section 577.060 to suggest that leaving the scene of an accident in which there was no personal injury or property damage is no less leaving the scene of an accident. One can still leave the scene of an accident without incurring criminal liability. Unfortunately, the majority rewrites the statutes so that leaving the scene of an accident under section 577.039 can only be accomplished by the commission of the crime of leaving the scene of an accident under section 577.060.

The majority also points to the definition of “accident” in the Missouri drivers’ guide for the proposition that the Department of Revenue, itself, construes the word “accident” so that it is limited to events involving personal injury or property damage. However, the definition of “accident” in the drivers’ guide mirrors the definitional language in section 577.060, and it is stated with the clear purpose to explain that it can be a crime to leave the scene of an accident. Nothing is said about accidents in the context of warrantless arrests in DWI cases.

For these reasons, I would hold that an accident occurred, that Reed left the scene of the accident, and that, as a result, his subsequent arrest was lawful.

      . Unless otherwise noted, all statutory citations are to RSMo 2000.

      . After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

      . This conclusion does not rest on the exclusionary rule, which is applicable only in criminal cases. The test results are inadmissible only because the results were procured in violation of the statutes that control the admissibility of evidence.


author: MICHAEL A. WOLFF, Chief Justice.

text:
    Gene R. KUNZIE, Appellant, v. CITY OF OLIVETTE, Respondent.
    No. SC 87022.
    Supreme Court of Missouri, En Banc.
    Feb. 28, 2006.

      Donald K. Murano, St. Charles, MO, for Appellant.
    William B. Jones, James N. Foster, Jr., Corey L. Franklin, St. Louis, MO, for Respondent.
    John M. Hessel, St. Louis, MO, for Ami-cus Curiae.
   MICHAEL A. WOLFF, Chief Justice.

Gene Kunzie was an at-will employee of the City of Olivette for 23 years until his firing in August 2003. During his employment, Kunzie held various positions including, at the time of his firing, director of public works and building commissioner. Kunzie filed suit against the city. His third amended petition sets forth three counts:

(1) a whistle blower claim of retaliatory discharge;
(2) wrongful termination in violation of public policy for Kunzie’s reporting violations of various municipal codes, policies, and state laws; and
(3) breach of contract as to Kunzie’s retirement benefits, work-related benefits, and severance rights.

The city filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction because Kunzie failed to exhaust administrative remedies and that Kunzie’s petition failed to state a claim upon which relief can be granted because the claims are barred by sovereign immunity.

The circuit court sustained the city’s motion without explanation. After an opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is reversed, and the case is remanded.

DISCUSSION

Since the circuit court did not specify the grounds for dismissal, this Court reviews the grounds asserted by the city for upholding the court’s judgment. Farm Bureau Town and Country Ins. Co. of Missouri v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995).

Exhaustion of Administrative Remedies

The city’s motion to dismiss asserts that Kunzie failed to exhaust his administrative remedies prior to filing suit in the circuit court. “Failure to exhaust administrative remedies requires that a party seek all available remedies at the administrative level before applying to the courts for relief.” Green v. City of St. Louis, 870 S.W.2d 794, 796 (Mo. banc 1994). “The rule requiring exhaustion of administrative remedies is one of subject matter jurisdiction.” Green, 870 S.W.2d at 796. Questions of circuit court jurisdiction are solely issues of law and are reviewed independently. McCoy v. Caldwell County, 145 S.W.3d 427, 428 (Mo. banc 2004).

Under Missouri’s administrative procedure act any person who has exhausted all administrative remedies and is aggrieved by a final decision in a “contested case” is entitled to judicial review by a circuit court of proper venue. Sections 536.100 and 536.110. A “contested case” is “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.010(2). The “law” that may require a hearing “includes any ordinance, statute, or constitutional provision that mandates a hearing.” McCoy, 145 S.W.3d at 428.

In this case, the city’s municipal code, numbers 20.510, 20.511 and 20.494, created a personnel appeals board to review certain employment decisions. The board serves as an “advisory body to hear and make written recommendation to the City Manager” regarding appeals from city employees of the discharge, suspension, discipline, or other penalizing actions of the city manager. Code No. 20.511. The “written recommendations” are to be provided to the city council. Id. City code number 20.494(c) prescribes the procedures to be used for an appeal of a negative employment decision. It also provides that the board’s recommendations shall be filed with the city manager and further that “[w]ithin five days of receipt of the recommendations of the Board, the City Manager shall make his decision which shall be final.” Code No. 20.494(c).

McCoy controls this issue. In McCoy, the circuit court dismissed the petition, finding that the previous proceeding before the hearing board was not a contested case under the administrative procedure act, section 536.100. 145 S.W.3d at 428. The county sheriff in McCoy fired two deputy sheriffs following the procedures in section 57.275. Id. Those procedures provided for written notice of the grounds for dismissal, a hearing upon request before an appointed board, and required the board to make a written report of the facts determined at the hearing. Id. Despite these procedures, the statute granted the sheriff “the final decision-making authority.” Id. Thus, regardless of the written recommendations of the hearing board, the sheriff could still “terminate the deputies even in the face of findings that wholly support the deputy’s continued employment.” Id. at 429. Such a hearing, this Court held, was not one in which “legal rights, duties or privileges [were] to be determined” and was, therefore, not a contested case. Id.

As in McCoy, the hearing procedures here do not determine a city employee’s legal rights, duties, or privileges. The board is merely advisory. Likewise, after receiving the board’s recommendations, the city manager is vested with the ultimate decision making authority. As in McCoy, the city manager’s decision is not subject to any “gauge or criteria,” and the city manager can fire a city employee despite contrary recommendation findings.

This is not a contested case to which the administrative procedure act’s exhaustion requirement applies. Dismissal of Kun-zie’s petition cannot be upheld on this basis.

Sovereign Immunity

The city’s motion to dismiss also asserts that Kunzie’s petition fails to state a claim upon which relief can be granted because the claims are barred by sovereign immunity.

Because the question of the city’s immunity may depend on the classification of claims as either tort or contract, the nature of the claims should be examined. In counts one and two, Kunzie alleges: (1) a whistleblower claim of retaliation for Kun-zie refusing to perform illegal acts or acts violating public policy and (2) wrongful termination in violation of public policy for Kunzie’s reporting of law and ordinance violations. These counts are predicated upon the public policy exception to the at-will employment doctrine. Although wrongful discharge in this context might be based on a contractual relationship, Kunzie has chosen to proceed in tort. As is, this Court will treat this only as a tort claim. There is no reason to consider whether an at-will employee’s wrongful discharge claim against a municipality should be treated as a breach of contract action. Cf. Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir.2001). Count three sets forth a breach of contract claim for retirement benefits, sick pay, and other miscellaneous entitlements.

The City’s Immunity as Applied to Tort Claims

Municipality immunity is an oft-confused area of law. “Under the common law, only the State and its entities were entitled to complete sovereign immunity from all tort liability.” Junior College Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004). “Municipal corporations traditionally have had immunity, however, for those actions they undertake as a part of the municipality’s governmental functions — actions benefiting the general public.” Junior College, 149 S.W.3d at 447; State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 673-74 (Mo. banc 1988). Municipalities have no immunity for torts while performing proprietary functions — actions benefiting or profiting the municipality in its corporate capacity. Junior College, 149 S.W.3d at 447.

This Court has held that termination of a city employee is a governmental function. State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357 (banc 1928). See also Feuchter v. City of St. Louis, 357 Mo. 616, 210 S.W.2d 21, 25 (1948), and Nichols v. City of Kirksville, 68 F.3d 245, 247 (8th Cir.1995) (citing Gallagher, 7 S.W.2d at 361).

Kunzie has provided no sound reason to deviate from Gallagher. Personnel decisions and the internal administration of operating a municipal department are governmental. As such, the city is protected by governmental immunity unless some exception applies. In this case, the only applicable exception would be the municipality’s procurement of liability insurance. Section 537.610.1 allows political subdivisions of the state to purchase liability insurance for tort claims and waives sovereign immunity “only to the maximum amount of and only for the purposes covered by such policy of insurance” or self-insurance plan.

Kunzie alleges that the city maintains liability insurance “to handle the consequences of employment related actions brought against them.” By doing so, Kun-zie has sufficiently alleged facts that, if proved, would bring his tort claims within the purview of the statute. Because the trial court dismissed Kunzie’s petition pri- or to the commencement of discovery, Kunzie was not able to prove the existence and content of the insurance policy.

Kunzie’s tort claims for wrongful discharge and retaliation may be barred. Because the case is remanded to the trial court, Kunzie will have the opportunity to prove if, and to what extent, the city maintains liability insurance that covers his claims. If the city maintains insurance that covers these types of claims, then it will have waived its immunity under section 537.610 for the specific purpose of and to the extent of its insurance coverage. A municipality’s procurement of insurance constitutes an absolute and complete waiver of all immunities.

Breach of Contract Claim

Kunzie’s petition alleges that under the city ordinance he would have been able to realize retirement benefits by March 11, 2007. Kunzie claims that the city’s wrongful discharge and retaliation constitutes a breach of his contractual right to receive those benefits. Kunzie further alleges that the city’s wrongful discharge and retaliation denied him contractual rights to sick leave, sick pay, health benefits, vacation time, vacation pay, and educational pay under the city’s code and ordinances.

Sovereign immunity does not apply to suits for breach of contract. Kubley v. Brooks, 141 S.W.3d 21, 28 (Mo. banc 2004); V.S. DiCarlo Construction Co., Inc. v. State, 485 S.W.2d 52, 54 (Mo.1972). Thus, the motion to dismiss was improperly sustained as to count three because that count sounds in contract and is not barred by sovereign immunity.

CONCLUSION

The judgment of the circuit court is reversed, and the case is remanded.

All concur.

      . Kunzie amended by interlineation the title of count II of his second amended petition. This pleading also amends the title of Kun-zie's second amended petition to the "Third Amended Petition Whistle Blower Claim, Wrongful Termination, Breach of Contract.” Any reference to Kunzie’s third amended petition is a reference to formerly titled second amended petition.

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

      . This definition of "contested case” is now found in section 536.010(4), RSMo Supp. 2005.

      . This absolute waiver includes governmental function immunity, the discretionary immunity doctrine, and the public duty doctrine. Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo. banc 1996), is inapplicable to cases under section 537.610 due to the difference between the waiver in section 537.610 and the imposition of liability under section 71.185. Section 71.185 applies to claims against municipalities for personal injury or property damage while in the exercise of governmental functions and provides that municipalities “shall be liable as in other cases of torts.” Section 71.185 does not explicitly waive any particular immunity, whereas section 537.610 provides that "[s]overeign immunity ... is waived” to the extent of insurance coverage.


author: GLENN A. NORTON, Judge.

text:
    Margaret MILLER, Appellant, v. ROTHSCHILD MANAGEMENT GROUP, Respondent.
    No. ED 84886.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Case Transferred to Supreme Court Aug. 30, 2005.
    Case Retransferred to Court of Appeals Jan. 31, 2006.
    Original Opinion Reinstated Feb. 27, 2006.
    James G. Enright, St. Louis, MO, for respondent.
    James P. Leonard, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Margaret Miller appeals the trial court’s order setting aside a $3,000,000 default judgment against Rothschild Management Group on her personal injury claims. She argues that the order is void for lack of jurisdiction. We agree and dismiss the appeal.

I. BACKGROUND

Miller filed a petition against RMG, claiming that she sustained personal injuries after falling on property allegedly owned by RMG. RMG was properly served with Miller’s petition, but never responded. After an evidentiary hearing on damages, the court entered a default judgment in Miller’s favor for $8,000,000. Within thirty days, RMG filed a motion to set aside the default judgment under Rule 74.05(d) (2004). Therein, it claimed that it had a meritorious defense because it did not own the property on which Miller was injured and that it did not intentionally or recklessly act to impede judicial process. RMG alleged that the employee who had accepted service was told by the insurance carrier to which the employee forwarded the petition that there was no coverage for Miller’s claim and that the file was silent as to what else, if anything, had been done with the petition. RMG indicated that the employee had been terminated. In the supporting affidavit attached to that motion, RMG’s chief executive officer stated that RMG did not own the property on which Miller was injured and indicated that she was waiting to hear back from the former employee who had mishandled the petition.

Then RMG filed an amended motion to set aside the default judgment under Rule 74.05(d). This amended motion was filed more than thirty days after the default judgment was entered, but within ninety days of the filing of the first motion to set aside. Therein, RMG restated the grounds for relief set forth in its first motion: that it had a meritorious defense because it did not own the property and that there was good cause to set aside the default judgment because its failure to respond to Miller’s petition was the result of conduct not intentionally or recklessly designed to impede judicial process. In the amended motion, RMG alleged — and the second affidavit of the CEO stated — that the former employee forwarded the petition to an insurance agent who thereafter failed to forward it to the appropriate insurance company. RMG also asserted that the former employee did not recall any conversation with the insurance agent as to why he had not forwarded the petition to the appropriate insurer. The factual allegations in the amended motion and the CEO’s assertions in her second affidavit regarding the meritorious defense were identical to those in the first motion.

The trial court held an evidentiary hearing and then — over ninety days after the first motion to set aside was filed — ordered the default judgment set aside under Rule 74.05(d). The court concluded that RMG’s conduct constituted an “excusable series of unintended mistakes” and that RMG had a meritorious defense. Miller appeals.

II. DISCUSSION

Miller argues that the trial court did not have jurisdiction to enter its order setting the default judgment aside over ninety days after RMG’s first motion to set the judgment aside was filed. We agree.

Because the first motion to set aside was filed within thirty days of the entry of the default judgment — that is, before the default judgment became final — it is treated as an authorized after-trial motion, which extended the trial court’s control over the default judgment for ninety days from the date the motion was filed. See Popular Leasing USA, Inc. v. Universal Art Corporation of New York, 57 S.W.3d 875, 877 (Mo.App. E.D.2001); Klaus v. Shelby, 4 S.W.3d 635, 637-38 (Mo.App. E.D.1999). Because that motion was not ruled on within the ninety-day period, it was deemed overruled on the ninetieth day. See Rule 81.05(a)(2)(A). Thereafter, the court did not have jurisdiction to enter its order setting the default judgment aside. See Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D.2004).

RMG claims that the first motion was abandoned when it filed the amended motion and that the amended motion should be treated as an independent proceeding to set the default judgment aside because it was filed more than thirty days after entry of the default judgment. As such, RMG contends, the court had jurisdiction to grant that motion more than ninety days later. We disagree.

A motion to set aside filed more than thirty days after a default judgment is entered is treated as an independent proceeding — -separate and apart from the underlying judgment — because after thirty days a default judgment is final and the trial court no longer has control over it. See Popular Leasing, 57 S.W.3d at 878. But in this case, although thirty days had passed at the time the amended motion was filed, that motion was filed during the trial court’s extended control over the default judgment by virtue of the first motion. Therefore, at that point, the default judgment was not yet final. Moreover, the amended motion merely restated the grounds for relief set forth in the first motion. The only amendment was the addition of facts learned since the first motion was filed. In this way, the amended motion was more of a supplement to the first motion rather than an abandonment of the relief sought in the first motion. See generally Rule 55.33(d) (supplemental pleading permissible to set forth events occurring since filing the pleading sought to be supplemented). Under these circumstances, the amended motion should not be treated as an independent proceeding to set aside the default judgment and should not otherwise affect the ninety-day time period in which the trial court had jurisdiction to rule on the first motion. Thus, RMG’s request to set the default judgment aside — as presented in the first motion and as supplemented by the amended motion— was deemed overruled on the ninetieth day after the first motion was filed. The court’s order entered several months later was entered without jurisdiction and is void. Therefore, we acquire appellate jurisdiction over that order only to determine its invalidity and dismiss the appeal. See generally Ogle v. Blankenship, 113 S.W.3d 290, 293 (Mo.App. E.D.2003).

III. CONCLUSION

The trial court’s order setting aside the default judgment is void for lack of jurisdiction, and the appeal is dismissed.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.

      . All rule references are to the Missouri Supreme Court Rules (2004).

      . RMG conceded at oral argument that, although both motions also expressly cited Rule 74.06, no grounds for setting aside the judgment under that rule were presented to the trial court, the trial court did not address that rule in its order and RMG does not rely on that rule for relief.