author: JOSEPH M. ELLIS, Judge.

text:
    Betty CROW, et al., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, et al., Defendants, Crico of Ethans II and Equity Residential Properties Management Corp.; Mayfield Enterprises, Respondents.
    No. WD 64229.
    Missouri Court of Appeals, Western District.
    July 5, 2005.
    Application for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Brian F. McCallister, Kansas City, MO, for appellants.
    Paul P. Hasty, Jr., Overland Park, KS, for respondents Crico and Equity.
    Kelly Warren, Overland Park, KS, for respondent Mayfield.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Betty Crow, John Dority, and Nevada Dority (“Appellants”) are, respectively, the mother and emancipated natural children of John Dority (“Dority”), who died after an uninsulated aluminum ladder he was moving came in contact with an uninsulated 7,000-volt overhead electric power line while he was performing daytime painting work on Unit 9 of an apartment complex known as The Ethans, located at 8300 North Hickory in Kansas City, Missouri. At the time of the accident, which occurred on August 14, 2000, the power line in question was maintained by Defendant Kansas City Power & Light Company (“KCP & L”). Respondent Crico of Eth-ans II, L.P. (“Crico”) owned The Ethans, and Respondent Equity Residential Properties Management Corporation (“Equity Residential”) managed the apartment complex for Crico. Dority’s employer was Respondent Mayfield Enterprises, a sole proprietorship owned and operated by Jay Mayfield (“Mayfield”).

On June 7, 2002, Appellants filed a wrongful death suit against KCP & L, Crico, Equity Residential, Mayfield, and Mayfield Enterprises, alleging that they were all negligent and that their negligence caused or contributed to cause Dority’s wrongful death from electrocution. Appellants subsequently settled their claims against KCP & L in exchange for a payment of $210,000, but continued to pursue their claims against the remaining defendants. On June 26, 2003, Mayfield Enterprises moved for dismissal of all claims against it for lack of subject matter jurisdiction, asserting that since Appellants’ claims arose out of Dority’s on-the-job injuries, Mayfield Enterprises was immune from civil liability to Appellants for Dority’s alleged wrongful death under the exclusive jurisdiction provisions of Chapter 287, The Workers’ Compensation Law (‘WCL”). The same day, Ctico and Equity Residential moved for summary judgment against Appellants on the basis that they had no duty to eliminate or warn Dority of the danger posed by the overhead power lines located near Unit 9 of The Ethans apartment complex since it was open and obvious as a matter of law. After exhaustive briefing by both parties, the circuit court ultimately granted both motions, leading to this appeal.

In their first point, Appellants argue that the trial court abused its discretion in granting Mayfield Enterprises’ motion to dismiss for lack of subject matter jurisdiction because certain affirmatively negligent acts alleged to have been performed by Mayfield created an exception to the exclusivity provisions of the WCL and because there is also a statutory exception to the exclusive remedy and jurisdiction provisions of the WCL when an employer is alleged to have violated provisions of the Overhead Power Line Safety Act, (“OPL-SA”), §§ 819.075 — 319.090.

Section 287.120 governs the determination of when an injury falls under the WCL. In pertinent part, it states:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person....
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

Id. The Missouri Supreme Court has held that the WCL was not supplemental or declaratory of any existing rule, right or remedy, but created an entirely new right or remedy which is “wholly substitutional in character and supplants all other rights and remedies, at common law or otherwise.” Marie v. Standard Steel Works, 319 S.W.2d 871, 875 (Mo. banc 1959). It provides the exclusive remedy for employees against employers for injuries covered by its provisions, and subject matter jurisdiction over such matters properly lies only in the Labor and Industrial Relations Commission. State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). Accordingly, “[a] motion to dismiss for lack of subject matter jurisdiction is the proper method to raise as a defense to a tort action the exclusive jurisdiction of the Workers’ Compensation Law, as provided in Chapter 287.” Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1, 3 (Mo.App. W.D.2000).

“In determining the question of its subject matter jurisdiction, the circuit court is not only the arbiter of the law, but the facts necessary to decide the question.” Kesterson v. Wallut, 116 S.W.3d 590, 594 (Mo.App. W.D.2003). Thus, whether the subject matter of an action falls within the exclusive jurisdiction of the Labor and Industrial Relations Commission is a question of fact, resolution of which is left to the sound discretion of the trial court. Burns v. Employer Health Servs., Inc., 976 S.W.2d 639, 641 (Mo.App. W.D.1998). Its decision on this question may be “based not only on facts appearing of record, but facts adduced by affidavits of the parties, oral testimony, and depositions.” Kesterson, 116 S.W.3d at 595.

“Dismissal for lack of subject-matter jurisdiction is proper whenever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction.” Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003); Rule 55.27(g)(3). “As the term ‘appears’ [in Rule 55.27(g)(3) ] suggests, the quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction.” James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). As applied here, then, if it appears to the trial court by a preponderance of the evidence before it that “the employer, the employee and the accident fall under the Workers’ Compensation Law, the case is cognizable by the Labor and Industrial Relations Commission and the Commission’s jurisdiction is original and exclusive.” State ex rel. J.E. Jones Constr. Co. v. Sanders, 875 S.W.2d 154, 156 (Mo.App. E.D.1994). This “may limit a particular individual’s recovery, but it ensures that more individuals enjoy the protection intended by the Workers’ Compensation Law.” Vatterott v. Hammerts Iron Works, Inc., 968 S.W.2d 120,121 (Mo. banc 1998).

Where, as here, the facts bearing on the issue are contested, we review the trial court’s decision on a motion to dismiss for lack of subject matter jurisdiction for abuse of discretion, Mo. Soybean Ass’n, 102 S.W.3d at 22, rather than under the summary judgment standard. Jones, 875 S.W.2d at 157. Judicial discretion is abused only where “ ‘the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ ” Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. banc 1998) (quoting Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 881 (Mo. banc 1993)).

The evidence presented to the trial court on the issue of its subject matter jurisdiction over Appellants’ wrongful death claims against Mayfield and Mayfield Enterprises included the following. At the time of the accident, Dority was a full-time employee of Mayfield Enterprises, a Missouri employer subject to the WCL which has been in the business of providing painting services for nearly twenty years. Dority had worked for Mayfield Enterprises for approximately two and a half years and was acting within the course and scope of his employment when the uninsulated aluminum ladder he was carrying came into contact with the overhead power lines in question, which were located approximately fifteen to twenty feet from the rear of Unit 9 of The Ethans apartment complex and were first placed there by KCP & L in March 1989. Mayfield did not know the overhead power lines in question were present until after Dority had been electrocuted, and neither Crico nor Equity Residential had notified Mayfield that overhead power lines were present on the property comprising The Ethans prior to Dority’s electrocution. At the time of the accident, Mayfield was not at the work site. Dority, and only Dority, had his hands on the ladder, and he received no assistance with the ladder from anyone. The accident occurred when Dority was walking around to the rear of Unit 9, lost his balance while evidently carrying the ladder in a vertical, upright position, “and somehow backed up and got into the lines.” Dority’s family filed a claim for death benefits under the WCL, and that claim has already been paid.

On these facts, it is abundantly clear that the trial court did not abuse its discretion in concluding that it lacked subject matter jurisdiction over Appellants’ wrongful death claims against Mayfield and Mayfield Enterprises. Appellants nevertheless contend that inasmuch as they alleged that Mayfield committed several “affirmative negligent acts” outside the scope of his responsibility to provide Dority a safe workplace, neither Mayfield nor Mayfield Enterprises were immune from tort liability under the WCL and the tidal court had jurisdiction over the subject matter of their wrongful death suit against those defendants. In particular, they point to their first amended petition, in which they alleged that Mayfield: (1) “intentionally and/or consciously” failed to provide Dority with an insulated ladder to conduct his work-related duties; (2) failed to provide Dority with proper safety training and instruction in connection with working around overhead power lines; (3) failed to warn Dority of the risk of danger associated with working around overhead power lines; (4) “intentionally and/or consciously directed and/or ordered” Dority to work around overhead power fines when Mayfield “knew, could and/or should have known” of the existence of the fines in question and the danger they presented; (5) failed to properly inspect the work site where Dority was to perform his work-related duties; (6) “intentionally and/or consciously” provided Dority with an uninsulated ladder and “directed and/or ordered that he use” such a ladder to perform his work-related duties when May-field “knew, could and/or should have known” of the risk of danger associated with the use of such a ladder around overhead power lines; and (7) “intentionally and/or consciously failed to turn off, or arrange to have turned off,” the power to the overhead power lines in question when Mayfield “knew, could and/or should have known” of the risk of danger associated with the use of an uninsulated ladder around such fines.

Under the circumstances here, however, these allegations, artfully drafted as they may have been, were insufficient to confer subject matter jurisdiction on the trial court. Considered collectively and in conjunction with the facts recited supra, which clearly negate all of Appellants’ eon-clusory claims to the effect that Mayfield or Mayfield Enterprises acted with the specific purpose to injure or affirmatively increase the risk of danger to Dority, they amount to nothing more than the allegation that Dority’s employer negligently failed to discharge its non-delegable duty to provide Dority a safe workplace. This is not enough to move an employer outside the protection of the WCL’s exclusive remedy provisions because, although an employer has a nondelegable duty to provide its employees with a reasonably safe place to work, separate circuit court actions for breach of that duty are excluded by the WCL. Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. banc 1993). That is to say, “[a]n employee injured performing his work duties and sustaining his injuries because the workplace was unsafe has no common law suit against either the employer or the employer’s agent, but is relegated to the benefits provided under the Workers’ Compensation Law.” Gabler v. McColl, 863 S.W.2d 340, 343 (Mo.App.E.D.1993). Based on the record before us, Appellants’ claims fall directly within the purview of the WCL, thereby depriving the trial court of subject matter jurisdiction over their suit against Mayfield and Mayfield Enterprises.

Seeking to avoid this result, Appellants argue, in the alternative, that the trial court had jurisdiction over the subject matter of their wrongful death suit against Mayfield and Mayfield Enterprises inasmuch as their petition also expressly alleged that Mayfield had committed numerous violations of the OPLSA, including, inter alia, failing to notify KCP & L that his employees would be working around the overhead power lines in question and failing to make any temporary electrical safety arrangements with KCP & L before commencing the painting work on Unit 9 of The Ethans.

Although it had before it quite a bit of conflicting evidence bearing on the issue, the trial court did not make a finding that Mayfield had or had not violated the OPLSA, or even that he could be found to have violated the OPLSA. Instead, the trial court ruled only that because the statute “does not affect or create an exception to an employer’s immunity under the Worker’s Compensation Act,” recovery under the WCL “is Plaintiffs exclusive remedy against Defendant May-field. Jurisdiction properly lies with the Labor and Industrial Relations Commission, not this Court.” This ruling, which was a determination of law rather than fact and is reviewed de novo on appeal, State v. Wiley, 80 S.W.3d 509, 511-12 (Mo.App. W.D.2002), was entirely correct.

The OPLSA was enacted in 1991. Section 319.083 states:

1. When any person desires to temporarily carry out any function or activity in closer proximity to any high voltage overhead line than is permitted by sections 319.075 to 319.090, the person or persons responsible for the function or activity shall notify the public utility which owns or operates the high voltage overhead line of the function or activity, and shall make appropriate arrangements with the public utility for temporary mechanical barriers, temporary deenergization and grounding of the conductors, temporary rerouting of electric current or temporary relocating of the conductors, before proceeding with any function or activity which would impair the clearances required by sections 319.075 to 319.090.
2. A person requesting a public utility to provide temporary clearances or other safety precautions shall be responsible for payment of those costs incurred by such utility in the temporary rerouting of electric current or the temporary relocating of the conductors. Upon request, a public utility shall provide a written cost estimate for the work needed to provide temporary clearances or other safety precautions. A public utility is not required to provide such clearances, or other safety precautions until payment of the estimated amount has been made. Unless otherwise agreed to, a public utility shall commence work on such clearances or other safety precautions within seven working days after payment has been made.

Section 319.080 provides:

Unless danger against contact with high voltage overhead lines has been guarded against as provided by section 319.083, no person, individually or through an agent or employee, shall store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies or materials or any other device that conducts electricity, within ten feet of any high voltage overhead line, or perform or require any other person to perform any function or activity upon any land, building, highway or other premises, if at any time during the performance thereof it could reasonably be expected that the person performing the function or activity could move or be placed within ten feet of any high voltage overhead line.

Moreover, according to section 319.085:

If a violation of any of the provisions of sections 319.075 to 319.090 results in physical or electrical contact with any high voltage overhead line such violation shall be a rebuttable presumption of negligence on the part of the violator in the event such violation shall cause injury, loss or damage, and, notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator. In addition to any penalties provided herein, liability under common law may apply.

Finally, section 319.090 provides that “[a]ny person who violates any of the provisions of sections 319.075 to 319.088 is guilty of a class B misdemeanor.”

Appellants argue that Mayfield’s alleged violation of the OPLSA constitutes a statutory exception to the exclusive jurisdiction of the WCL. In support of this argument, they rely on State ex rel. Safety Roofing Systems, Inc. v. Crawford, 86 S.W.3d 488 (Mo.App. S.D.2002).

In Safety Roofing, an employee was injured on the job when a piece of metal trim he was handling came into contact with a high-voltage overhead power line. 86 S.W.3d at 490. After filing and settling a workers’ compensation claim against his employer, the injured employee sued the city that owned and operated the power line in circuit court, claiming that the city’s negligence resulted in his personal injuries. Id. The city then filed a third-party petition, seeking contribution from the injured worker’s employer for any recovery the worker might ultimately obtain in his tort claim against the city under section 319.085 of the OPLSA. Id. The city’s contribution claim was based solely on the allegation that the employer breached its duty, under section 319.083, to notify and make appropriate electrical safety arrangements with the city before putting its employee to work within ten feet of the city’s overhead power line. Id. The employer moved to dismiss the city’s third-party petition due to lack of subject matter jurisdiction, contending that the city’s claim for contribution was barred by the WCL’s exclusivity provisions. Id. The circuit court overruled the motion, and the employer sought a writ prohibiting the court from trying the city’s third-party contribution claim against the employer. Id. After conducting a review of prior Missouri case law, as well as that from other state courts considering statutes similar to the OPLSA, the Southern District concluded that, in light of the specific language of section 319.085, which expressly provides that “notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator,” the “legislature intended the contribution provisions of the OPLSA as exceptions to the exclusivity provisions of the WCL.” Id. at 493. Accordingly, the Southern District quashed its preliminary writ of prohibition and held that section 319.085 of the OPLSA authorized the city to seek contribution from the injured worker’s employer based on the city’s allegation that the employer violated its independent statutory duty to notify the city that its employees would be working within ten feet or less of the city’s high-voltage, overhead power lines. Id. at 493-94.

It is readily apparent that Safety Roofing is inapposite, because it involved a contribution claim against an injured worker’s employer brought by a third-party non-employer who had been sued by the injured employer outside the strictures of the WCL. Here, however, we are not dealing with a third-party claim for contribution by KCP & L against Mayfield or Mayfield Enterprises. In any event, Safety Roofing certainly does not hold, as claimed by Appellants, that “[a]n employer can be held liable at common law for an employee’s injuries when the employer fails to comply with provisions of the OPL-SA.” In short, the ease is of no benefit to Appellants, as it simply did not address any OPLSA-based exceptions to the exclusive jurisdiction of the WCL vis-a-vis claims by an employee against his or her employer.

Appellants’ final argument in support of their first point relied on is based on the last sentence of section 319.085, which, as noted supra, states:

If a violation of any of the provisions of sections 319.075 to 319.090 results in physical or electrical contact with any high voltage overhead line such violation shall be a rebuttable presumption of negligence on the part of the violator in the event such violation shall cause injury, loss or damage, and, notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator. In addition to any penalties provided herein, liability under common law may apply.

(emphasis added.) Appellants claim that the final sentence demonstrates the General Assembly’s intent to affirmatively authorize an injured worker to seek common-law remedies against his or her employer in circuit court when the worker alleges that his or her injuries were caused by the employer’s violation of the OPLSA. We cannot agree.

Our primary objective in interpreting this statute is to give effect to the General Assembly’s intent. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003). It is clear that section 319.085 was not intended to apply in cases where an employee who was injured after he or she made physical or electrical contact with a high voltage overhead power line sues his or her employer directly in tort, as opposed to suing the non-employer public utility which owned or operated the lines in question. That is to say, the object of section 319.085 is to protect public utilities from having to pay the full measure of common-law damages to those injured or damaged due to another party’s failure to carry out its duties, under section 319.083.1, to notify and to make and pay for appropriate temporary electrical safety arrangements with the public utility before proceeding with any function or activity which would impair the ten-foot clearances required by the statute. Section 319.085 accomplishes this legislative objective by establishing a re-buttable presumption of negligence on the part of the violator in favor of the public utility in the event the violation results in injury, loss or damage, by granting the public utility the right of contribution against the violator and by providing that the public utility may also be able to assert other common-law theories of liability against the violator. If the legislature intended to do more than this, it certainly did not speak in clear, certain, and unambiguous terms, as it did in providing, earlier in the same statute, that “notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator.” See Safety Roofing, 86 S.W.3d at 493 (noting that the legislature “could not have spoken more clearly” in this regard).

Second, within the framework of the WCL itself, the legislature has already expressly addressed and provided a specific, unambiguous remedy for statutory violations such as those alleged by Appellants. According to section 287.120.4 of the WCL:

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

In order to be awarded the fifteen percent increase under section 287.120.4, “a claimant must demonstrate the existence of the statute or order, its violation, and a causal connection between the violation and the compensated injury.” Akers v. Warson Garden Apts., 961 S.W.2d 50, 53 (Mo. banc 1998), overruled in part on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003). Indeed, our Supreme Court has observed that since section 287.120.4 provides for a mandatory fifteen percent increase in the compensation and death benefit when an employee’s work-related injury is shown to have been caused by the failure of his or her employer to comply with any state statute, it ensures that “an employer does not escape liability for violating state statutes,” even in cases governed by the WCL. Id. at 56.

For these reasons, we hold that Appellants’ exclusive remedy against Mayfield and Mayfield Enterprises for their alleged violations of the OPLSA is provided by sections 287.240.1 and 287.120.4. Accordingly, the circuit court did not err in determining that it lacked subject matter jurisdiction to address those claims. Point denied.

In their second point, Appellants argue that the trial court erred in granting summary judgment to Crico and Equity Residential on Appellants’ premises liability claims against them because there remained genuine issues of material fact which precluded such a disposition.

The standard of review governing this aspect of Appellants’ appeal was summarized in Wills v. Whitlock, 139 S.W.3d 643 (Mo.App. W.D.2004):

A movant is entitled to summary judgment if the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We view the record in the fight most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. We take as true the facts set forth by affidavit or otherwise in support of the moving party’s motion unless they are contradicted by the nonmoving party’s response to the summary judgment motion. The non-moving party’s response must show the existence of some genuine dispute as to one of the material facts necessary to the plaintiffs right to recover.

Id. at 646 (quoting Butler v. Burlington N. & Santa Fe Ry. Co., 119 S.W.3d 620, 621-22 (Mo.App. W.D.2003)). Furthermore, as stated by the Missouri Supreme Court in Harjoe v. Herz Financial, 108 S.W.3d 653, 654 (Mo. banc 2003): “Review is de novo. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment.” (internal citation omitted). “To succeed on summary judgment, a defendant must show: (1) undisputed facts negating any of plaintiffs’ required elements; (2) the plaintiffs, after adequate time for discovery, cannot produce evidence sufficient to find one of plaintiffs’ required elements; or (3) there is no genuine dispute as to each fact necessary to support a properly-pleaded affirmative defense.” Chouteau Auto Mart, Inc. v. First Bank of Mo., 55 S.W.3d 358, 360 (Mo. banc 2001) (emphasis omitted).

The substantive Missouri law governing Appellants’ claims against Crico and Equity Residential was set forth in Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc 1993). “When a plaintiff sues a possessor of land for injuries arising out of an unreasonably dangerous condition on that land, the standard of care owed by the defendant is defined by the relationship existing between the possessor of the land and the plaintiffs.” Id. at 225. In determining the nature of that relationship, “ ‘a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land’ ” is classified as an invitee. Id. (quoting Restatement (Second) of ToRts, § 332 (1965)). When the injured party is an invitee, a possessor of land is subject to liability for the injuries suffered by the invitee due to a condition on the land only if the possessor (1) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to the invitee; (2) should expect that the invitee will not discover or realize the danger or will fail to protect him or herself against it; and (3) fails to exercise reasonable care to protect the invitee against the danger. Id. at 225-26 (citing Restatement (Second) of ToRts, § 343 (1965)). In general, with respect to the second required element, “a possessor’s actions do not fall below the applicable standard of care if the possessor fails to protect invitees against conditions that are open and obvious as a matter of law.” Id. at 226.

Moreover, “a possessor of land is not an absolute insurer of the well-being of its invitees.” Id. Rather, a possessor of land is entitled to expect that its invitees will exercise ordinary perception, intelligence, and judgment to discover open and obvious conditions, appreciate the risk they present, and take the minimal steps necessary to avert a tragedy. Id. In other words, a possessor of land may “reasonably rely on [its] invitees to see and appreciate the risk presented by” an open and obvious yet dangerous condition on the land, and may “reasonably rely on the invitee’s normal sensibilities to protect against such a condition[.]” Id. at 227.

In granting summary judgment to Crico and Equity Residential, the trial court found that the existence of the overhead power lines at the rear of Unit 9 of the apartment complex was open and obvious. Appellants argue that summary judgment was inappropriate since the record contains evidence raising genuine issues of material fact as to this issue.

First, they point to Mayfield’s deposition testimony, which established that he inspected the property for approximately four to five hours before making a bid to paint the apartment complex and that he made a few subsequent trips to the property while the painting work was in progress. “If the. power lines were open and obvious,” they reason, “Mayfield would have discovered them during this four- or five-hour inspection, or his subsequent visits to the complex.” Although this argument has substantial intuitive appeal, as illustrated by the following extracts from Mayfield’s deposition, it is conclusively refuted by the summary judgment record:

A.: The power lines were actually at the very end of the complex.
Q.: Did you go back to the very end?
A.: No.
Q.: Did you do that when the work started when you came and talked to Mr. Roop [Dority’s supervisor] and explained the project to him?
A.: I actually did not go to the back of that building.
Q.: At any time before Mr. Dority’s accident, did you ever see the power lines?
A.: No.
Q.: Was there any reason for you not to have seen them other than you just didn’t go back in that area?
A.: I didn’t go back in that area.
Q.: There wasn’t anything concealing them from view, was there?
A.: No.
Q.: They were out in the open?
A.: That’s correct.
Q.: If you were in that area, they were obvious?
A.: Yes.
Q.: Did you have any difficulty seeing the power lines?
A.: Not when you get back there.
Q.: As far as you know, as far as you could tell, the power lines were out in the open and they were obvious? All you had to do was look? Is that right?
A.: Yeah. If you look, you can see them.
Q.: They weren’t in the middle of the trees or anything like that?
A.: No.
Q.: They weren’t hidden in any way?
A.: No.
Q.: There was nothing to obscure a human being’s view of the power lines if you were there at the back of the building?
A.: No.
Q.: Nobody else was on the ladder on Building 9?
A.: Not in the vicinity of the power line.
Q.: Nobody carried a ladder to Building 9?
A.: Not in the vicinity of the line. The line was at the very end of the budding, and he [Dority] was the only one who worked around that end of the building.
Q.: During your subsequent visits after the bidding process at the Ethans complex, what did you go there for? Inspection — supervision? Inspection? Quality control?
A.: Yes.
Q.: Your testimony is you never saw any overhead power lines prior to—
A.: The accident.
Q.: I’ll just call it the incident at issue. Okay?
A.: That’s correct.
Q.: And you also told us earlier that you didn’t see the lines before the accident occurred, but I think that’s due to the fact that you just never went back to the area of the complex. Am I right about that?
A.: That’s correct.
Q.: Was there any reason that you didn’t see the lines other than you just didn’t happen to go back there in bidding the job?
A.: No. That’s it.

While this testimony clearly indicates that Mayfield’s pre- and post-bid inspections of the property were less than completely thorough and would support a claim that he negligently inspected Dority’s workplace for the existence of potential safety hazards before directing him to begin working there, it is insufficient to support even an inference that the presence of the overhead power lines was not open and obvious to anyone, who, like Dority before and at the time of the accident and May-field afterward, was located in close proximity to them.

Anticipating this conclusion, Appellants also point to the following deposition testimony of Mayfield, which was elicited during his cross-examination by counsel for Appellants:

Q.: Okay. I understand where you are coming from. You said you weren’t aware of the power lines. You never saw them before on any of your numerous trips. Is that your testimony?
A.: Yes.
Q.: When the crew eventually did get to the area of the building where the power lines were, which you said— well, I’m not going to say what you said. Were they — could you observe them easily?
A.: Yes. You could.
Q.: Okay. So is it a logical conclusion that when your crew — or somebody that was working on Building 9, including my — including Mr. Dority — knew the power lines were there before they began working on Building 9?
A.: I don’t know whether they were there — whether they knew they were there or not because I — no one said anything to me about the power lines.
Q.: I understand that. Do you think it’s more likely than not that they knew the power lines were there if—
Q.: That’s fine. You can answer — before they even began work on the building where Mr. Dority was electrocuted?
A.: It’s very common that you don’t look up when you are working. You look at what’s in front of you. You walk into a budding, you know, you don’t know what’s on the ceiling. And that’s the same case there. Everybody looks in front of them what they are doing. And it was above and behind him. I can see somebody working there and not being aware of them.
Q.: Let me ask you this: Do you think you would have seen them if you would have walked back there?
A.: I could see it either way. Again, when you are doing something, you look forward. You have a tendency not to look above and behind you. And that’s where the lines were. When you walk around there, you walk around looking at the building. And the lines were above and behind you. It’s very — I mean, we all walk into places and don’t notice what’s above and behind us.
Q.: So you could see the way you might have seen it, you might not have seen it?
A.: I could see that.

Appellants argue that since Mayfield “stated he could see why John Dority might not have seen the power lines at all when working around Budding 9,” the trial court erred in granting summary judgment on the issue of whether existence of the lines was open and obvious. Respondents Crico and Equity Residential meet this claim by stating that, under the circumstances here, “[t]he argument that John Dority may or may not have seen them [the lines] is totally irrelevant. He reasonably should have seen them, as a matter of law.” We agree.

As stated in Hams, possessors of land “are entitled to expect that their invitees will exercise ordinary perception, intelligence and judgment” to discover the presence of conditions on the land which are “open and obvious to all who would encounter” them. 857 S.W.2d at 226. Indeed, our Supreme Court has gone so far as to say that a worker, in circumstances similar to those in this case, has a duty to look. Dalby v. Hercules, Inc., 458 S.W.2d 274, 279 (Mo.1970). In Dalby, an injured worker claimed, among other things, that he did not see either the overhead power lines or the poles to which they were attached despite their “open and obvious” presence at the worksite. Id. The Missouri Supreme Court held that the worker “had a duty to look, and to look was to see what was plainly apparent had he looked, so that, in the eyes of the law, he knew of the existence and location of the power lines.” Id. (internal citations omitted). While this language has not once been cited in the thirty-five years since Dalby was handed down, it is not for this court to say when or whether the holding should be revisited by our Supreme Court. Rather, we are, of course, bound by Dalby as the most recent controlling decision of our Supreme Court. Thomas v. Depaoli, 778 S.W.2d 745, 747 (Mo.App. S.D.1989). Accordingly, since Dority would have discovered the presence of the lines had he carried out his duty to look, Appellants cannot avoid summary judgment on the basis that he did not look.

Next, citing Dieterich v. Pickett, 114 S.W.3d 293, 296 (Mo.App. W.D.2003), and Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 393 (Mo.App. W.D.1999), for the proposition that both the presence and the dangerousness of the condition on the land must be open and obvious, Appellants argue that even if the presence of the power lines was open and obvious to Dority, their dangerous condition and the nature of the peril they posed were not. On this issue, the trial court found that “a person exercising reasonable care would have appreciated the danger posed by the lines” to anyone coming in contact with them.

Persons of ordinary intelligence are presumed to know the dangers attending contact with electrically charged wires. Chandler v. City of Independence, 640 S.W.2d 175, 177 (Mo.App. W.D.1982). It is conceded by all that Dority was a person of ordinary intelligence. He had a duty to look for the wires and, in the eyes of the law, is presumed to have known of the existence of the power lines. Dalby, 458 S.W.2d at 279. “Under those conditions he is presumed to understand and appreciate the dangers attendant to contact with the wires.” Chandler, 640 S.W.2d at 177. As explained in Chandler, Dority

was alerted to the danger from which his death arose by his knowledge of the presence of the lines and of the danger involved if the [ladder] made contact with them. All of the dangers which caused the injury were fully revealed to [Dority]; the existence of the lines, the proximity of the lines to the place where he was standing, the length of the [ladder], and the danger posed if the [ladder] made contact with the electrical lines.

Id. Accordingly, the trial court did not err in ruling as it did on this issue.

Finally, Appellants urge us to invoke the exception to the “open and obvious danger” rule recognized by our Supreme Court in Harris: “[W]hen the dangerous condition is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees ‘unless the possessor should anticipate the harm despite such knowledge or obviousness.”’ 857 S.W.2d at 226 (quoting Restatement (Second) of Torts, § 343A(1) (1965)) (emphasis in original). Although they cite no authority for the proposition, they claim that, despite the open and obvious nature of the dangerous condition on the land, Crico and Equity Residential should nonetheless have anticipated that an invitee painting the rear of Unit 9 would be electrocuted. We disagree.

“Everyone has the duty to exercise due care for his own safety[.]” Dalby, 458 S.W.2d at 277. In particular,

[l]andowners are entitled to expect that their invitees will exercise due care. ■Due care mandates that invitees take available precautions to protect themselves from open and obvious dangers. The exception to the “open and obvious danger” rule, applies where a landowner should foresee that invitees, even if using reasonable care, would not appreciate the danger associated with the risk or would be unable to protect themselves from it.

Huxoll v. McAlister’s Body & Frame, Inc., 129 S.W.3d 33, 35-36 (Mo.App. W.D.2004) (internal citations omitted).

The facts of this case do not fit within the exception, since Appellants have failed to explain why Respondents Crico and Equity Residential should have expected that Dority, after exercising due care, would be unable to protect himself from the obvious risk of danger presented by the overhead power lines running behind Unit 9. As noted supra, “a possessor of land is not an absolute insurer of the well-being of its invitees,” but is entitled to expect that they will exercise ordinary prudence and judgment to “take the minimal steps necessary to avert a tragedy” arising from an open and obvious yet dangerous condition on the land and may reasonably rely on them “to employ the simple means at their disposal to prevent this harm from occurring.” Harris, 857 S.W.2d at 226, 227; see also Huxoll, 129 S.W.3d at 36, 37. Clearly, this tragedy could have been avoided if Dority had simply carried his uninsulated aluminum ladder in a horizontal rather than vertical position while he was moving the ladder in proximity to the overhead power lines some fifteen to twenty feet away from the rear of Unit 9 or if he had used an insulated or non-metallic ladder to perform the work. Point denied.

For all these reasons, the judgment of the circuit court is affirmed.

All concur.

      . All statutory references are to RSMo 2000.

      . Respondents Crico and Equity Residential moved for dismissal of Appellants’ appeal alleging failure to comply with Rule 84.04(c), which requires the statement of facts in briefs to "be a fair and concise statement of facts relevant to the questions presented for determination without argument.” This request is denied.

      . The parties agree, and the trial court found, that Dority was an invitee since he was on Crico’s property for the business purpose of painting the apartment buildings owned by Crico and managed by Equity Residential.

      . The summary judgment record also contains several photographs of the rear of Unit 9 of The Ethans, where Dority’s accident occurred. These photographs, which were taken by KCP & L two days after the accident occurred, demonstrate beyond cavil that the presence of the overhead power lines in question was "open for view, obvious and ascertainable by the slightest effort to look.” Hokanson v. Joplin Rendering Co., 509 S.W.2d 107, 113 (Mo.1974).

      . As noted by Crico and Equity Residential in their brief, there were numerous objections by opposing counsel to much of this testimony, all of which were omitted in the colloquy quoted above for the sake of simplicity. These included objections to the form of the question, that the question had been asked and answered, that the question called for the witness to speculate, and that the question was argumentative. The record does not indicate whether the trial court ever expressly ruled on any of those objections. Since, as will be seen, it ultimately does not matter, for purposes of this appeal, we will assume, without deciding, that this evidence was properly admitted into the summary judgment record over those objections.

      . Mayfield testified that depending on how close the power lines are to the buildings being painted, he provides his employees with either insulated or fiberglass ladders.


source: Caselaw Access Project

author: LAWRENCE E. MOONEY, Presiding Judge.

license: Public Domain

text:
    Steven M. SPIER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85136.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 22, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The movant, Steven M. Spier, appeals the motion court’s judgment denying his Rule 24.085 motion for post-conviction relief without an evidentiary hearing. Because the movant’s plea of guilty to kidnapping was predicated on an information that failed to state the essential elements of the offense, we reverse the motion court and order that the judgment of conviction be vacated. The cause is remanded for further proceedings.

The State, by information, charged the movant with four counts of kidnapping, in violation of section 565.110, RSMo.2000, and four counts of interference with custody, in violation of section 565.150. As acknowledged by the movant at the plea hearing, the charges stemmed from the movant’s actions of March 31, 2003, when he got into a car with a Ms. Flores, who, during the course of a supervised visit, took her four minor children from the Division of Family Services Building. At the time, the children were all in the temporary legal protective custody of the Division of Family Services. The movant then stayed with Ms. Flores and her children for ten days. On February 23, 2004, the movant pleaded guilty to a single count of kidnapping pursuant to a plea agreement that the three other counts of kidnapping and the four counts of interference with custody be dismissed. It was further agreed that he would be sentenced to fifteen years’ imprisonment. The count of kidnapping to which the movant pleaded guilty read as follows:

The Prosecuting Attorney, John D. Rupp, of the County of Washington, State of Missouri, charges that the defendant, ...
In violation of Section 565.110, RSMo, committed the Class A felony of kidnapping, punishable under section 558.011.1, RSMo, in that on or about March 31, 2003, in the County of Washington, State of Missouri, defendant unlawfully removed K.A.F. without her consent from 1701 N. Missouri Street, Potosí, Mo, the place where she was found by defendant, for the purpose of interfering with the performance of a governmental function, to-wit: the court ordered care, custody and control over K.A.F.

The plea court accepted the movant’s plea of guilty and sentenced the movant to fifteen years’ imprisonment. Movant filed a pro se and then, after counsel was appointed, an amended Rule 24.035 motion for relief to set aside his guilty plea. The motion court entered judgment denying Movant’s motion without an evidentiary hearing. Movant now appeals.

This Court reviews the denial of a Rule 24.035 motion for post-conviction relief to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Rule 24.035(k); Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002). A motion court’s findings and conclusions are clearly erroneous only if, after a full review of the record, this Court is left with a definite and firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo.1997). We are left with just such an impression in this case. The movant claimed in his amended Rule 24.035 motion that he could not stand convicted of kidnapping because removal of the victims from “court ordered care, custody and control” did not constitute “interference with the performance of any governmental or political function.” We agree.

Section 565.110 defines the crime of kidnapping. That statute provides as follows:

1. A person commits the crime of kidnapping if he or she unlawfully removes another without his or her consent from the place where he or she is found or unlawfully confines another without his or her consent for a substantial period, for the purpose of
(1) Holding that person for ransom or reward, or for any other act to be performed or not performed for the return or release of that person; or
(2) Using the person as a shield or as a hostage; or
(3) Interfering with the performance of any governmental or political function; or
(4) Facilitating the commission of any felony or flight thereafter; or
(5) Inflicting physical injury on or terrorizing the victim or another.
2. Kidnapping is a class A felony unless committed under subdivision (4) or (5) of subsection 1 in which cases it is a class B felony.

This section is based on the Model Penal Code § 212.1. Section 565.110, Comment to the 1973 Proposed Code. Commentaries to the Model Penal Code note as follows:

... paragraph (d) adds a provision against kidnapping ‘to interfere with the performance of a governmental or political function.’ This specification reaches political terrorism and the like, and classifies such conduct among the most serious kinds of unlawful confinement.

A.L.I., Model Penal Code and Commentaries, Part II, § 212.1, comment 4, p. 228 (1980). More specific examples of the types of activities proscribed by the statute are found in Tentative Draft No. 11 of the Model Penal Code, which states as follows:

Clause (d) raises to the aggravated felony level certain interference with political and governmental functions which might otherwise be misdemeanors or felonies of the third degree, e.g., abduction of witnesses, candidates, party leaders, officials [and] voters.

A.L.I., Model Penal Code § 212.1, comment 2 to Tentative Draft No. 11 at 18 (1960); see Commonwealth v. Barfield, 768 A.2d 343, 347 (Pa.Super.Ct.2001). Additionally, the comments to the Model Penal Code also state as follows:

The list of purposes in Section 212.1 thus would exclude from kidnapping cases where a parent out of affection takes his child away from another parent or lawful custodian....

A.L.I., Model Penal Code and Commentaries, Part II, § 212.1, comment 4, p. 228 (1980).

When construing a statute, our primary role is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent State ex rel. Nixon v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc 2004). We consider the object the legislature seeks to accomplish and aim to resolve the problems addressed therein. Id. Further, in construing and applying section 565.110.1(3), it must be presumed the General Assembly intended to adopt the interpretation of that section contained in the applicable comments to the Model Penal Code. See State v. Welty, 729 S.W.2d 594, 596 (Mo.App. S.D.1987). In light of these principles and the foregoing comments, we hold that removal of a child from “court ordered care, custody and control,” as charged in this case, does not constitute “interference with the performance of any governmental or political function.” The comments indicate that interference with political and governmental functions reaches situations of political terrorism and the like, such as the abduction of witnesses, candidates, party leaders, officials, and voters. Here, the removal of the children from “court ordered care, custody and control” was not an act of political terrorism or the like. Further, the comments state that cases where a parent out of affection takes his child away from another parent or lawful custodian are excluded from the purview of the kidnapping statute. Here, the movant was an accessory to a mother’s removal of her children from a lawful custodian.

Because the movant’s plea of guilty to kidnapping was predicated on an information that failed to state the essential elements of the offense of kidnapping, the motion court clearly erred in failing to vacate the judgment of conviction. Accordingly, we reverse the motion court and order that the judgment of conviction be vacated. Further, because the kidnapping count and the three counts of kidnapping dismissed by the State pursuant to the plea agreement fail to state the essential elements of that offense, it appears that, as presently worded, these counts should not be pursued. However, the State may reinstate the four counts of interference with custody, which were dismissed as part of the plea agreement and which do state the essential elements of that offense. See generally, State v. White, 838 S.W.2d 140, 142-3 (Mo.App. W.D.1992). The cause is remanded for further proceedings.

LAWRENCE G. CRAHAN, J., and MARY K HOFF, J., concur.

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

      . The State had charged the movant with one count of kidnapping and one count of interference with custody as to each of the four minor children.

      .The charge was amended at the plea hearing to include the language "acting alone or in concert with another.”

      . Section 212.1 of the Model Penal Code provides as follows:
      A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:
      (a)to hold for ransom or reward, or as a shield or hostage; or
      (b) to facilitate commission of any felony or flight thereafter; or
      (c) to inflict bodily injury on or to terrorize the victim or another; or
      (d) to interfere with the performance of any governmental or political function.

      . Section 212.1(d) of the Model Penal Code is identical to section 565.110.1(3).

      . Reinstatement of charges dismissed pursuant to a plea agreement following a defendant's successful challenge to his conviction has been followed by other jurisdictions, as shown by the cases of People v. Horne, 21 Ill.App.3d 10, 314 N.E.2d 633 (1974)(finding that charge that had been nolle prossed pursuant to a plea agreement could be reinstated where defendant had successfully appealed and the conviction reversed) and People v. Clark, 43 Mich.App. 476, 204 N.W.2d 332 (1972)(finding that, where statute under which guilty plea entered was found inapplicable, charges that had been dismissed pursuant to plea agreement could be reinstated unless barred by the statute of limitations). See also, People v. Short, 4 Ill.App.3d 849, 281 N.E.2d 785 (1972).


text:
    Marcus Monroe SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64047.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    Jeannie Marie Willibey, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Office of Attorney General, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Marcus Monroe Smith appeals the denial of his motion for post-conviction relief filed pursuant to Rule 24.035. We affirm. Rule 84.16(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    STATE of Missouri ex rel. Dan WHITE, Clay County Prosecutor, Relator, v. The Honorable Elizabeth DAVIS, Judge of Division 5 of the Circuit Court of Clay County, Missouri, Respondent.
    No. WD 64791.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Andrew W. Hassell, Office of Attorney General, Jefferson City, for Appellant.
    Ruth E. Smalley, Office of Public Defender, Liberty, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Dan White, the Clay County Prosecutor (hereinafter “Relator”), seeks a writ of cer-tiorari asking this court to quash the grant by respondent of a habeas corpus writ ordering the release of Joshua Trow-bridge from confinement in the Clay County Jail. Trowbridge was confined pursuant to a capias warrant issued by the Honorable Rex A. Gabbert, another judge of that circuit, pending a probation revocation hearing. Trowbridge argued that on the face of the record he was being illegally held because his probation term had expired.

Relator contends that Judge Davis exceeded her jurisdiction in granting the writ on two grounds. First, relator argues that habeas corpus relief was unavailable to Trowbridge because he had other adequate remedies available to seek relief. As part of that argument the relator contends that respondent had no right to use habeas corpus to interfere in a pending case. A corollary of that argument is that the respondent by means of habeas corpus was, in effect, exercising appellate jurisdiction over another division of the same court and/or prohibition (which the relator argues the habeas relief amounts to) when such relief is reserved exclusively to the appellate courts and the Supreme Court. Finally the State argues in the alternative that the grant of relief was inappropriate because Trowbridge’s probation had not expired prior to the initiation of the probation revocation proceedings.

We granted certiorari and now deny the State’s request to quash the writ of habeas corpus.

Factual and Procedural Background

On August 16, 2002, Trowbridge pleaded guilty to the offense of Possession of a Controlled Substance. The plea judge suspended imposition of sentence and placed Trowbridge on a two-year term of probation, with participation in the county drug court program.

Trowbridge’s term on probation was not without incident. On September 6, 2002, he violated conditions imposed by the drug court and was placed in the Clay County Jail for seventy-two hours. On July 18, 2003, a probation violation report was filed, resulting in the suspension of Trowbridge’s probation on August 15, 2003, as well as the issuance of a warrant for his arrest. A second probation violation report was filed on August 29, 2003. A probation revocation hearing was held before Judge Gab-bert on September 26, 2003. At that time, Trowbridge admitted violating terms of his probation because of his failure to return to in-patient drug treatment.

An “amended sentence and judgment” entered by Judge Gabbert following the September 26 hearing forms the crux of the underlying dispute between Trow-bridge and the State. The amended judgment recited that imposition of sentence was suspended and indicated that Trow-bridge was ordered to complete a two-year term of probation. The parties, here, disagree as to whether this amended judgment served to extend Trowbridge’s probation (pursuant to Section 559.036.3, RSMo) or whether it was merely recapitulation of the terms from the original judgment with regard to probation with an additional requirement of institutional drug treatment. If it was not sufficient to extend his probation, then Trowbridge’s probation would expire in mid-August 2004.

The “amended sentence and judgment” purported to place Trowbridge in the custody of the Department of Corrections for 120 days for institutional drug treatment pursuant to Section 559.115, RSMo 2000. Such placement is, of course, impossible without the imposition of a sentence. Because Trowbridge had a suspended imposition of sentence he could not be placed in the 559.115 program. Section 217.785, RSMo, however, permits the placement of a defendant in an institutional drug treatment program as a condition of probation without revocation or, as in this case, imposition of a sentence. Upon completion of that program the defendant returns to community supervised probation automatically without further action of the court. Although there is no documentation in the file changing the terms and description of the drug treatment placement, Trowbridge apparently entered the institutional treatment phase under 217.785 and returned to regular probation thereafter.

This did not end Trowbridge’s difficulties on probation. On June 3, 2004, Trow-bridge was, again, ordered to spend forty-eight hours in the Clay County Jail following the filing of a probation violation report. Another probation violation report was filed on September 29, 2004, that alleged that Trowbridge was using methamphetamine. A third violation report was filed on October 7, 2004, alleging that he violated the terms of his probation by failing to report, to advise his probation officer of his current address, to enter a treatment program, and to submit to drug surveillance. The report also alleged that Trowbridge had absconded from supervision. Judge Gabbert issued a capias warrant, leading to Trowbridge’s arrest on October 20, 2004. Another probation violation report was filed on November 2, 2004, adding allegations of marijuana and alcohol use, as well as failure to appear in court.

A motion to dismiss was filed by Trow-bridge, arguing that his probation had expired as a matter of law on August 16, 2004, and that Judge Gabbert lacked jurisdiction to conduct probation revocation proceedings. At a hearing held on November 4, 2004, Judge Gabbert declined to permit argument on the motion to dismiss and denied Trowbridge’s oral motion for release from custody pending the revocation hearing. The probation revocation hearing was continued until December 2, 2004.

Trowbridge then filed a petition for writ of habeas corpus on November 8, 2004, which was assigned to Judge Davis, the respondent in the present matter. That writ petition alleged that Trowbridge’s detention in the Clay County Jail was illegal because his probation had expired and the Circuit Court of Clay County had no jurisdiction to revoke his probation. Argument was held on the writ petition on November 18, 2004. Judge Davis granted the writ petition the following day, ordering Trow-bridge released from the Clay County Jail.

Daniel White, the Clay County Prosecutor, then filed the present writ of certiora-ri seeking that the writ of habeas corpus be quashed.

Discussion

Here, Trowbridge sought and obtained a writ of habeas corpus from Judge Davis to obtain his release from custody on the basis that he was illegally confined. Given that there is no appeal from such a grant, the State may obtain review by filing a petition for writ of certiorari in the appropriate appellate court. State ex rel. Beaird v. Del Muro, 98 S.W.3d 902, 906 (Mo.App.2003). We grant review in such matters as a matter of course and of right. Id. Following review, we may either quash the writ of habeas corpus, or uphold the actions of the habeas court. Id. Our review is limited to a determination of whether the habeas court exceeded the bounds of its jurisdiction. Id. We review only questions of law, not of fact, and are generally limited to the record before the habeas court. Id. at 907. Questions of sufficiency of the evidence, however, are questions of law and may be considered by this court in conducting its review. Id.

Relator presents two arguments in support of its petition for certiorari relief. First, the State contends that Judge Davis both lacked jurisdiction and exceeded her jurisdiction in granting Trowbridge’s petition for writ of habeas corpus on the ground that he had other adequate remedies available to him. As part of this argument the State also contends that respondent had no jurisdiction to interfere in a pending probation revocation proceeding before Judge Gabbert. Alternatively, the State contends that Judge Davis exceeded her jurisdiction in granting habeas relief because Trowbridge’s probation had been properly extended in September 2003 and thus the circuit court still had jurisdiction to revoke his probation.

Relator argues that Trowbridge’s appropriate remedy was a writ of prohibition filed in this court. Although prohibition is an available remedy in a situation such as this, it is not the exclusive means of relief. Historically habeas corpus has been frequently used in probation revocation situations. In Beaird, for instance, this court affirmed the issuance of a habeas corpus writ by a circuit court judge with regard to an individual incarcerated following a probation revocation proceeding before another judge of the same court. Id. at 910. The petition for writ of habeas corpus was brought after revocation but challenged not the expiration of probation but the procedure used in the revocation hearing (notice was inadequate). The habeas relief, therefore, returned the probationer to his pre-revocation status where revocation proceedings could be resumed.

Obviously, this case comes to us in a different procedural posture than Beaird in that Trowbridge’s probation has not been revoked but, he argues, has expired. Is the difference significant? Relator argues that the remedies available to an individual facing probation revocation differ at various stages of the proceeding. Considering those remedies is important, the relator urges, as “[t]he relief available under a writ of habeas corpus has traditionally been very limited, and courts are not required to issue this extraordinary writ where other remedies are adequate and available.” Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). Thus, the threshold questions, here, are whether Trowbridge had other remedies available to him at the time he sought habeas corpus relief and, if so, whether those remedies were adequate.

Trowbridge could have also sought extraordinary relief by filing a petition for writ of prohibition in this court seeking to bar Judge Gabbert from conducting the probation revocation proceeding. See, e.g., State ex rel. Heberlie v. Martinez, 128 S.W.3d 616, 616 (Mo.App.2004); State ex rel. Moyer v. Calhoun, 22 S.W.3d 250, 251 (Mo.App.2000); State ex rel. Brown v. Combs, 994 S.W.2d 69, 70 (Mo.App.1999); State ex rel. Wright v. Dandurand, 973 S.W.2d 161, 161 (Mo.App.1998); State ex rel. Limback v. Gum, 895 S.W.2d 663, 663 (Mo.App.1995).

This court has superintending control over the circuit courts and other courts within its district. Mo. CONST., art. V, Section 4(1); State, ex inf. Nixon v. Kinder, 89 S.W.3d 454, 459 (Mo. banc 2002). The above-cited cases are instances in which the appellate courts exercised that superintending control to bar a circuit court from conducting probation revocation proceedings where the lower court was without jurisdiction to undertake such actions.

Clay and other similar cases, however, deal with the concept of other adequate relief in the context of remedy by appeal or post-conviction proceeding. See Clay, 37 S.W.3d at 217. There is of course no appeal from the revocation of probation. We have found no case holding that habeas is not proper if other extraordinary relief such as prohibition is available, and we find no sound policy reason for so restricting habeas relief.

“Of all the five extraordinary remedies or writs, habeas corpus receives very special treatment. It stands alone, in a class by itself; and well it should, for it is our one great writ of right, the greatest and most important of all our writs. Herein is expressed our philosophy that the personal liberty of the individual is yet the most jealously guarded and provided for, even more than our rights of property, sacred as we regard them.

“Habeas Corpus Under Missouri’s New Code and Constitution,” 18 Kansas City L.Rev. 173 (1950). The Missouri Constitution Article I, section 12, declares, “That privilege of the writ of habeas corpus shall never be suspended.” And original Supreme Court Rule 1.23 exempted habeas corpus from its general policy not to issue remedial writs where adequate relief can be afforded by an appeal or by application for the writ to a lower court. Even current Supreme Court Rules 84.22 and 91.02 treat habeas corpus differently allowing it to be originally filed in an appellate court if good cause is shown. Rule 84.22 does prohibit issuance of a writ where adequate relief can be provided by appeal. But as said earlier there is no appeal from probation orders and no similar prohibition is stated restricting a circuit court from issuing habeas corpus even where relief by appeal is available. Finally, and most importantly, there is nothing in the rules or cases that holds that the availability of a remedy by appeal deprives a court of jurisdiction, as argued by relator, to entertain a petition for a habeas writ. To the contrary, it has been held to be merely procedural. State ex rel. Roberts v. Buckley, 533 S.W.2d 551, 553 (Mo. banc 1976).

We hold, therefore, that the respondent did not err as urged by relator in granting habeas relief merely because another extraordinary remedy, prohibition, was also available.

In the second part of its first point the State argues that habeas coitus cannot be used to interfere in a pending matter. This argument is expressly based on a contention that respondent lacked jurisdiction because the probation matter was pending before Judge Gabbert. Relator argues that respondent violated article V, section 4, of the Missouri Constitution vesting superintending control of courts and tribunals in the court of appeals and the Supreme Court. Relator devotes two sentences to the development of this argument and does not address the provisions of article V, section 14, which grant circuit courts the power to issue original remedial writs. We assume that relator contends that respondent was exercising appellate jurisdiction of Judge Gabbert’s order of confinement and that a circuit court has no appellate jurisdiction as such over a coequal court. Although we agree with the proposition that appellate jurisdiction generally lies in the appellate courts we do not understand how this principle deprives a circuit court of jurisdiction which it otherwise has to examine the legality of confinement by habeas corpus. Almost every exercise of habeas power involves indirectly the question of whether there is a proper order of confinement by some other circuit court. There could be no sound argument that a circuit court could never grant habeas relief if an individual was confined by order of another circuit court. The use of habeas by respondent was not unconstitutional under article V, section 14.

Relator cites to several child custody cases in support of its argument that respondent lacked jurisdiction. None of those cases stand for that proposition. In Higgins v. Missouri Division of Family Services, 580 S.W.2d 300 (Mo. banc 1979), foster parents by original proceeding attempted to challenge the removal of a baby by DFS who was under jurisdiction of a juvenile court pursuant to Section 211.031, RSMo. Although the State here correctly asserts that the Supreme Court denied habeas relief, the court did not hold that it lacked jurisdiction to grant habeas relief because the case was pending. Rather, the court specifically held that the custody order was lawful and that habeas may not be used to interfere with a court having proper jurisdiction and exercising that jurisdiction. Id. at 302. The essence of Trowbridge’s claim is that he was being unlawfully confined because of a lack of proper jurisdiction.

The other case relied upon, B.M.P. v. G.H.P., 612 S.W.2d 843 (Mo.App.1981), is equally unhelpful. There, a mother sought custody by habeas corpus while an appeal was pending from a dissolution decree awarding custody to the father. The court at length considered the cases prohibiting determinations of fitness and custody by use of habeas corpus when either dissolution actions were pending or appeals from such dissolution were pending. Nevertheless, the court considered whether lawful custody should be in the mother because she had filed a supersedeas bond on appeal. Id. at 845. In other words, even though the case was pending, the court still considered habeas relief to the extent of examining whether the custody placement was lawful. See also Fleming v. Fleming, 562 S.W.2d 168 (Mo.App.1978) (habeas corpus proper where the order awarding custody is challenged because of an illegality appearing on the face of the record).

Relator also argues that permitting respondent to grant habeas corpus in this situation would lead to chaotic results where a defendant or probationer may seek de facto appellate review of an unfavorable decision from another division of the circuit court in which the criminal case is pending. That argument ignores the limited nature of habeas relief which only examines the lawfulness of a petitioner’s confinement; and although the nature of the confinement order and its lawfulness in this case hinges upon whether Trow-bridge’s probation had expired and Judge Gabbert had lost jurisdiction, a loss of jurisdiction by a co-equal court is not the sole or even the usual basis for a request for habeas relief. Relator’s suggestion that we impose a blanket prohibition on any habeas relief that collaterally attacks a confinement order of a co-equal court is neither justified legally, by the important policies underlying the writ of habeas corpus, nor to avoid the chaos relator suggests.

Point denied.

Relator’s second point contends that the respondent’s grant of habeas relief was erroneous because Judge Gabbert still retained probation jurisdiction over Trowbridge at the time that he issued a capias warrant for his arrest. Both parties agree that the original term of probation was never revoked, that the original term of probation would have expired August 16, 2004, and that the violations that led to the order of confinement occurred after that date. Both also agree that whether Trowbridge remained subject to the terms of probation depends upon whether his probation was extended pursuant to Section 559.036 before August 16.

More correctly stated, however, the question before us is whether the record before respondent showed that there was a legal basis for the Sheriffs confinement of Trowbridge. “Generally, habeas corpus proceedings are limited to determining the facial validity of confinement.” State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). The record before respondent has been extensively discussed earlier. There is no docket entry, other order, or oral pronouncement that the court was extending Trowbridge’s probation beyond its original term. Relator argues unconvincingly that the “amended judgment and sentence” extended Trowbridge’s probation for another two years. No such words were used in the order, however. The “amended sentence” was identical to the original sentence except for the placement ordered pursuant to Section 559.115. As discussed earlier, that placement would have required a revocation of probation and imposition of a prison term. Release after completion of that program would have necessarily been on a new probation. However, the court’s comments clearly indicate that it wanted to continue Trowbridge on probation with a suspended imposition of sentence. Moreover, relator admits that probation was never revoked. If there was any intent in the “amended judgment and sentence” to do anything more than provide for institutional drug treatment with continued SIS status, it is not expressed. On the face of the record before this court, Trowbridge’s probation expired on August 16, 2004, and his subsequent confinement for alleged probation violations after that date was illegal. Therefore, respondent was obligated to issue the writ of habeas corpus.

The judgment of the habeas court is affirmed.

ROBERT G. ULRICH, Judge, and LISA WHITE HARDWICK, Judge, concur.

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

      . We note, in passing that this form of habeas corpus is also known as the writ of habeas corpus ad subjiciendum. Black’s Law Dictionary 709 (6th ed.1990). There are a number of other species of the writ of habeas corpus that are utilized for other purposes. For example, habeas corpus may be used to obtain the temporary transfer of a prisoner for purposes of giving testimony (writ of habeas corpus ad testificandum) or for purposes of prosecuting the prisoner for some other offense (writ of habeas corpus ad prosequendum). Id. at 709-10. None of these other purposes are applicable here, however, and the present opinion is not intended to address any of those latter forms of the writ or relief that might be available following grants of such writs.

      . Relator does not argue that Trowbridge should have filed his petition for writ of habe-as corpus initially in the court of appeals perhaps because of the provisions of Rule 91.02(a).

      . Respondent points us to no reported opinion that addresses a similar procedural posture, nor has our research identified any such case.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Sharon A. TAYLOR, Appellant.
    No. WD 63186.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.
    Lew A. Kollias, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Sharon Taylor was convicted by jury of involuntary manslaughter, § 565.024, RSMo.2000, and armed criminal action, § 571.015. On appeal, she contends the trial court plainly erred in instructing the jury on the armed criminal action charge.

Upon review of the record, we find no manifest injustice and affirm the judgment of conviction. We have provided the parties with a Memorandum explaining the reasons for our decision because a published opinion would have no precedential value.

AFFIRMED. Rule 30.25(b).


author: PER CURIAM:

text:
    M. STIERS, In the Interest of B. Stiers, a Minor, Respondent Pro Se, v. Robert BERNICKY, Appellant.
    No. WD 64447.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.

      Charles F. James, and Shelly Christine Dreyer, St. Peters, MO, for Appellant.
    Respondent Acting pro se.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.

      . Amended in 2004 by S.B. No. 1211, § A, effective August 28, 2004.

   PER CURIAM:

Appellant Robert Bernicky appeals from a judgment granting a full order of protection against him. Appellant argues that there was insufficient evidence to support the allegation in the petition that he stalked the minor child. We reverse the judgment.

On July 13, 2004, Respondent Ms. Stiers filed a Petition for Order of Child Protection. The petition alleged that Appellant Bernicky had sexually abused Respondent’s minor daughter. The petition form used by the court requires the petitioner to check one of four boxes coinciding with the definition of abuse and provide a narrative of the acts constituting the abuse alleged. Respondent checked the box for sexual abuse and provided a corresponding narrative. That narrative pleaded facts consistent with a stalking allegation, but not with a sexual abuse allegation. Respondent, however, did not check the box for stalking. In the narrative describing the sexual abuse allegation, the petition alleged that Bernicky and his friends “have been driving repeatedly up and down the road in front of [Ms. Stiers’] house.” Ms. Stiers alleged one particular incident where Bernicky gave Ms. Stiers’ daughter “nasty looks” as the child got off the school bus. The petition did not specifically plead that Bernicky had been stalking the child.

On July 13, 2004, the trial court issued an ex parte order of child protection. On July 27, 2004, a hearing was held to determine whether the full order of protection would be entered. Ms. Stiers appeared pro se. The only evidence she presented was her own testimony. Ms. Stiers testified that Bernicky drove in front of Ms. Stiers’ home once. That day, the child saw Bernicky driving down the street as she got off the school bus. Ms. Stiers said that Bernicky scared her daughter. Ms. Stiers acknowledged that Bernicky’s mother-in-law lived on the same street and that Bernicky was doing work on her home that day.

The trial court issued the full order of protection, enjoining Bernicky from disturbing the peace of the minor child in any way, entering her premises, or having any contact with her. The court informed Ber-nicky that he could drive down the street to see his mother-in-law provided his purpose was not to harass the child. The order was effective for 180 days, or until February 23, 2005.

Bernicky’s sole point on appeal is that the trial court erred in granting the order of protection because Ms. Stiers failed to prove that he stalked the child; he contends that the judgment was not supported by substantial evidence.

Ms. Stiers declined to file a brief in connection with this appeal. Because the respondent is not required to do so, we review the case on its merits without the aid of a respondent’s brief. In the Interest of A.T.H., 37 S.W.3d 423, 425 n. 1 (Mo.App.2001). Although not raised by Ms. Stiers as an issue on appeal, we consider whether this case is moot. The full order of protection was entered on July 27, 2004, and provided that it was effective until February 23, 2005, unless otherwise terminated or extended. The record does not indicate that it was extended, and, therefore, we assume it has expired.

This court has, on several occasions, dismissed an appeal from a full order of protection based on mootness where the order had expired and was not extended. See Hannah v. McCubbin, 21 S.W.3d 125, 126 (Mo.App.2000); McGrath v. McGrath, 939 S.W.2d 46, 47 (Mo.App.1997); Pope v. Howard, 907 S.W.2d 257, 258 (Mo.App.1995). Nonetheless, an appellate court may decide an otherwise moot issue if it is of general public interest and importance, recurring in nature, and will otherwise evade appellate review. In the Interest of R.T.T., 26 S.W.3d 830, 834 (Mo.App.2000). Missouri appellate courts have used this discretion to review the merits of a challenge to a child protection order. See A.T.H., 37 S.W.3d at 426 (involving a challenge to the sufficiency of the evidence to support a stalking allegation, like the case here).

It is difficult to obtain appellate review of protection issues prior to ,the expiration of a full order of protection. This is because section 455.516.1 provides that the duration of such an order shall not exceed 180 days. We are also mindful of the stigma that can attach to a person who is adjudicated a “stalker.” This stigma does not disappear simply because the order has expired. Such person may be forced, in an application for certain kinds of employment or in an application for licensure, to disclose the order of protection.

In light of these reasons, we exercise our discretion to review the merits of Ber-nicky’s claim.

An order of protection may be sought “for a child who has been subject to abuse by a present or former adult household member or person stalking the child.” § 455.505. The petitioner must prove the allegation of abuse of a child by a preponderance of the evidence. § 455.516.1. Abuse is defined as “any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by an adult household member, or stalking of a child.” § 455.501(1). At the time of the incident, “stalking” was defined as

purposely and repeatedly harassing or following with the intent of harassing a child. As used in this subdivision, “harassing” means engaging in a course of conduct directed at a specific child that serves no legitimate purpose, that would cause a reasonable adult to believe the child would suffer substantial emotional distress. As used in this subdivision, “course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

§ 455.501(10), RSMo 2000 (emphasis added). To prove stalking, then, Ms. Stiers had to show that Bernicky engaged in a series of acts over a period of time for the purpose of harassing the child.

Appellant Bernicky challenges only the sufficiency of the evidence to support the stalking grounds. In Ms. Stiers’ petition, she alleged that the category of abuse warranting an order of protection was “sexual abuse,” not stalking. Ms. Stiers was apparently referring to the fact that a charge of sexual abuse had been brought against Bernicky in connection with the allegation that Bernicky had sexually abused Ms. Stiers’ child. But even though Ms. Stiers did not designate stalking as one of the grounds, she alleged facts consistent with such an allegation. She pleaded that “[Bernicky] and his friends have been driving repeatedly up and down the road” in front of her house. She alleged one particular incident where Bernicky gave the child “nasty looks.”

Physical, sexual, or emotional abuse are grounds for protection only when a current or former household member commits that abuse. § 455.505; see also A.T.H., 37 S.W.3d at 426. There is no evidence in the record that Bernicky was ever a “household member.” Therefore, the sexual abuse allegation, standing alone, could not support the protective order against Bernicky.

Stalking, on the other hand, is grounds for a protective order even if the perpetrator is not a household member. A.T.H., 37 S.W.3d at 427. Thus, we examine the record to see if the evidence supports this allegation.

The only evidence Ms. Stiers presented in support of the stalking allegation was her testimony. The relevant portion of that exchange is as follows:

Q. Ms. Stiers, first of all, I’d like to know when these incidents of [Appellant] driving by happened.
A. He drove by when my daughter was getting on the school bus and scared her.
Q. That’s the only time ?
A. Then there was people driving down the road—I didn’t say that it was [Appellant] that did that, I said that ... his friends were driving around.... People were slowing down and staring at the house, and then go[ing] down, turning] around, and eom[ing] back and slowfing] down in front of my house again.
Q. So the ... only incident you know of involving [Appellant] directly was a school bus incident?
A. Yes.
Q. Where did that happen?
A. In Williamsburg, on South Street, up at the top where the bus stops.
Q. Are you aware that his mother-in-law lives in that area?
A. Yes.
Q. Were you aware that he was over at his mother-in-law’s house ... doing work on the house?
A. Yes.
Q. So he didn’t say anything to [the child] when he drove by?
A. No. But ... for my daughter’s safety, with the charges that are against [Appellant], I want her to know that she is protected.

(Emphasis added.)

This testimony establishes that on one occasion, Bernieky drove down the street where the child waited for her school bus. There is very little evidence that Bernicky’s purpose in doing so was to harass the child. The evidence of that was primarily the perception of the child that Bernieky gave her a “nasty look” apparently as he drove by. Ms. Stiers acknowledged that Bernieky was driving on the street to visit his mother-in-law. Intent is a necessary element of stalking under the statute. Brockert v. Syler, 95 S.W.Bd 187, 191-92 (Mo.App.2003).

Even if we were to assume that Ber-nicky drove down the street and gave a menacing look with the intent of harassing the child, this was a one-time incident. It was not “a pattern of conduct composed of a series of acts over a period of time.” See § 455.501(10). It seems that Ms. Stiers was also implying that Bernieky arranged for his friends to drive up and down the street in order to intimidate the child. There was, however, no specific evidence that Bernieky was involved in instigating this activity. The evidence of what his friends did was very general, without any discussion of how often or when the events in question occurred. Altogether, this evidence was too attenuated to support a protection order.

Ms. Stiers failed to present substantial evidence that Bernieky engaged in a pattern of conduct composed of a series of acts over a period of time for the purpose of harassing the child. Thus, the trial court erred in issuing the full order of protection.

Conclusion

We reverse the judgment and remand the case to the trial court with instructions to vacate the full order of protection.

      . At the time, Bernicky was charged criminally with sexual abuse of Ms. Stiers' child. He was later acquitted.


text:
    Charles BURGETT, Appellant, v. James HOYT, Apple Creek Apartments, et al., Respondent.
    No. WD 64336.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.
    Jeffrey R. Lange, Kansas City, MO, for Appellant.
    Michelle R. Stewart, Overland Park, KS, for Respondent.
    Before VICTOR HOWARD, P.J., THOMAS H. NEWTON and JAMES M. SMART, JJ.
   ORDER

PER CURIAM.

Mr. Charles Burgett appeals the trial court’s judgment in favor of Apple Creek Apartments. For the reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Carl A. DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64577.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.
    Mark Allen Grothoff, State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Linda Lemke, Asst. Attorney General, joins on the briefs, Jefferson City, MO, for Respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM:

Appellant Davis was charged with stealing, third offense, § 570.040, RSMo 2000. A jury found him guilty and sentenced him to three years of imprisonment. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).