author: ROBERT S. BARNEY, Judge.

text:
    William J. WEST, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. 26756.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 23, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., and Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for appellant.
    Robert E. Childress, Springfield, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant, Director of Revenue (“the Director”), “revoked for two years” the commercial driver’s license of Respondent, William J. West (“Driver”) due to Driver’s conviction by an unknown court in the State of Oregon for “Driving While Suspended/Revoked or Denied.... ” §§ 302.700; 302.725. Driver then filed a petition for a trial de novo in the Circuit Court of Greene County, Missouri, pursuant to section 302.311, seeking reinstatement of his commercial driving privileges.

On November 1, 2004, the matter was submitted to the trial court based exclusively upon the Director’s records and no testimony was heard. On November 5, 2004, the trial court entered judgment in favor of the Director and upheld the revocation of Driver’s driving privileges. Thereafter, Driver filed a “motion to amend judgment pursuant to Rule 75.01 & 78.01.” Subsequent to receiving additional arguments on Driver’s pending motion, the trial court reversed its earlier decision and set aside its prior judgment. In so doing, the trial court noted in its amended, docket entry judgment that the administrative record presented by the Director’s “Exhibit A, ... consists only of [Driver’s] driving record ... [t]he conviction in Oregon by an unknown court, which is the reason for the suspension of [Driver’s] driving privilege, has no supporting documentation other than what appears on [Driver’s] Missouri driving record.” The trial court concluded that “without further proof of the Oregon conviction, beyond what appears on [Driver’s] Missouri Driving Record, the Director fails to make a prima facie showing of the elements necessary to support the suspension of [Driver’s] driving privilege.” This appeal by the Director followed.

In her sole point on appeal, the Director maintains the trial court erred in reinstating Driver’s commercial driving privileges. The Director argues the administrative record entered into evidence at trial made a prima facie showing that Driver “had an Oregon conviction for driving while suspended, revoked, or denied,” and that Driver “failed to carry his burden of persuasion or present any evidence to suggest that the conviction was unlawful, unconstitutional, or otherwise insufficient to support the Director’s action.”

We review the trial court’s judgment in a driver’s license revocation case after a trial de novo pursuant to the familiar standards established by Rule 84.13(d). Ruth v. Dir. of Revenue, 143 S.W.3d 741, 744 (Mo.App.2004); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). Generally, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the judgment and disregard all contrary evidence and inferences. See Carlson v. Fischer, 149 S.W.3d 603, 605 (Mo.App.2004). “All evidentiary omissions in the record on appeal are presumed to support the trial court’s decision.” Thomas v. Dir. of Revenue, 874 S.W.2d 427, 429 (Mo.App.1994).

“In a case under section 302.311, ‘the driver bears initially the burden of producing evidence that he is entitled to a license.’” Carlson, 149 S.W.3d at 606 (quoting Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 54 (Mo. banc 2001)). “The [D]irector may discharge the driver’s initial burden of production by admitting in her answer that the driver is duly licensed.” Id. “After the driver meets the initial burden, the burden then shifts to the [D]irector to ‘offer the evidence.’ ” Id. This generally consists of the administrative record. Id. “The driver bears the burden of persuasion at all times.” Id. Once the Director has submitted the administrative record, “ ‘it is the driver’s burden to show that the facts that purport to be established by the administrative record are not true or that the grounds for suspension are unlawful, unconstitutional, or otherwise insufficient ... to support the [Director’s action.’ ” Id. at 606 (quoting Kinzenbaw, 62 S.W.3d at 54-55).

“[T]he [D]irector is authorized to rely on convictions in other states to suspend driving privileges.... ” Carlson, 149 S.W.3d at 606; § 302.160. The Driver License Compact (“the Compact”), section 302.600, Article III, to which Missouri is a signatory, requires the licensing authority of any state who is a party to the Compact to

report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or whether the conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection therewith.

§ 302.600, Art. Ill (emphasis added).

Here, the Director admits in her brief and shows in her submitted administrative record, that in August of 2004 Driver was a duly licensed commercial vehicle license holder; therefore, Driver met his initial burden of producing evidence he was licensed or otherwise eligible for a license. Carlson, 149 S.W.3d at 606. “As a result, the burden of producing evidence shifted to the [D]irector.” Id. At this juncture, the Director had to make a prima facie showing of facts necessary to support the suspension or revocation of a license. In this case, the Director had to show that Driver had been convicted of operating “a commercial motor vehicle ... while [his] driving privileges [were] suspended, revoked, or canceled ...” as defined by Missouri law. § 302.725; see also Carlson, 149 S.W.3d at 606; Stellwagon v. Dir. of Revenue, 91 S.W.3d 113, 115 (Mo. banc 2002).

Here, the Director’s entire evidentiary effort consisted solely of a two-page report of Driver’s Missouri Driving Record. In relevant part it revealed the following entries:

Department Actions
CDL Revocation For Driving Without A CDL License effective on 8-27-2004 Eligible to reinstate on 8-27-2006, Action is Pending as of 7-23-2004
Court Convictions
DRIVE WHILE SUS/REV/DEN assessed 00 points
Violation on 12-12-2002 in Commercial Vehicle
Convicted on 2-03-2003 in Oregon by UNKNOWN court
Conviction used for evaluation on 6-26-2004

(Emphasis in original).

Our review of the case law shows there are no specific requirements as to what documentary evidence is necessary to present to the trial court in order to sustain the Director’s initial burden of presenting a prima facia case for the revocation of Driver’s commercial license based on out-of-state convictions.

We of course recognize that in Rundquist v. Dir. of Revenue, 62 S.W.3d 643, 645 (Mo.App.2001), driver originally filed a petition for review challenging the Director’s denial of driver’s application for a driver’s license based on, in part, respective Kentucky and Illinois driving under the influence of alcohol (“DUI”) convictions. In his petition, driver alleged the two DUI convictions “did not comply with the provisions of the [Compact] in [s]eetion 302.600 ...,” due to “fourteen technical defects in both conviction reports.” Id. The Rundquist driver also asserted section 302.600 mandated removal of the two out-of-state convictions and resulting points from his driving record. The trial court found for driver and set aside the Director’s denial of his license application, on the basis that “ ‘specific required information is not included,’ ” and ordered the Director to remove the Kentucky DUI conviction from driver’s driving record. Id. In reversing the trial court on the basis of its erroneous application of the law, the reviewing court determined that the language of section 802.600 was “directory” and not “mandatory,” and that “no result is prescribed if a party state fails to provide all of the information listed in Article III, [s]ection 802.600.” Id. at 647 (emphasis added).

It is our view, nevertheless, that by embracing the Compact via section 302.600, the Missouri General Assembly evidenced its intent that certain minimal information has to be provided to the Director by foreign jurisdictions before alleged violations of foreign law can be used to impact a Missouri citizen’s driving privileges. We believe that to be true whether or not the foreign jurisdiction is a party to the Compact. The minimal information required includes at least an identification of “the court in which the action was taken.” § 302.600. It is not a stretch to say that the requirement of court identification was included in the Compact by the General Assembly so that an aggrieved driver would have only one county or one municipality to contact in order to explain or otherwise rebut the information given by the Director, i.e., to show he was not the person convicted, or he was charged but not convicted, or otherwise demonstrate informational error. In other words, it is a means by which an aggrieved driver receives reasonable notice as to why the Director has revoked a driver’s operating or commercial driver’s license, and by which such driver may meaningfully exercise his appeal rights accorded by section 302.311.

Here, the information proffered by the Director does not provide any information about which court in the State of Oregon Driver’s alleged conviction occurred. In our view, when the report does not contain that minimal information, it does not provide sufficient evidence to sustain the Director’s revocation of Driver’s commercial driving privileges. Kinzenbaw, 62 S.W.3d at 54. Point denied.

The judgment of the trial court is affirmed.

SHRUM, P.J., and GARRISON, J., concur.

      . Section 302.725 states
      Any person who drives a commercial motor vehicle ... while driving privileges are suspended, revoked, or canceled ... shall be guilty of a class A misdemeanor.... Upon receipt of such conviction the director shall revoke such person’s privilege to drive a commercial motor vehicle for a period of two years.
      Statutory references Eire to RSMo 2000. All rule references are to Missouri Court Rules (2004).

      . Section 302.311 states in pertinent part:
      In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grsmt such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license.

      .The record is devoid of a transcript of the proceedings. The docket entry shows the following entry: "trial held on the records of the DOR.” " 'While caution should be exercised when a suspension or revocation case is submitted on the records alone, it is not prohibited.’” Riggin v. Dir. of Revenue, 25 S.W.3d 695, 698 (Mo.App.2000) (quoting Tebow v. Dir. of Revenue, 921 S.W.2d 110, 113 (Mo.App.1996)).

      . Under Chapter 302, "Record” is defined as "includ[ing], but not being limited to, papers, documents, facsimile information, micropho-tographic process, electronically generated or electronically recorded information, digitized images, deposited or filed with the department of revenue.” § 302.010(17).

      . Section 320.160 sets out:
      When the director of revenue receives notice of a conviction in another state or from a federal court, which, if committed in this state, would result in the assessment of points, the director is authorized to assess the points and suspend or revoke the operating privilege when the accumulated points so require as provided in section 302.304.

      . As best we discern, Oregon is not a signatory to the Compact.


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eric Scott EBEIRUS, Defendant-Appellant.
    No. 26823.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 3, 2006.

      Margaret M. Johnston, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

Eric Scott Ebeirus (“Defendant”) was convicted by a jury of two counts of the class C felony of forgery, violations of Section 570.090, and was sentenced as a prior and persistent offender to consecutive ten-year terms. On appeal, Defendant maintains the trial court committed plain error by failing to sua sponte strike two members of the venire panel for cause because they indicated an inability to acquit a defendant who did not present evidence. We affirm the trial court’s judgment in part, and remand for correction of a clerical error in the judgment.

As Defendant does not challenge the sufficiency of the evidence supporting his conviction, facts stated in this opinion are limited to those necessary for the disposition of the issue. The record reveals that on March 26, 2003, Defendant and his girlfriend went to a convenience store in Lebanon, Missouri, where Defendant’s sister worked as a cashier. Defendant presented a blank check to his sister, already signed by “Brad Hunter,” to pay for his purchases. His sister initialed and accepted the check after Defendant had filled in the amount. A couple of hours later Defendant and his girlfriend returned to, the store and made another purchase. Defendant again presented a check in the name of “Brad Hunter.”

The next day, the store manager noticed that the two checks accepted from Defendant were over the limit allowed by store policy. She called the bank to see if they would clear and was told that the checks had been written on a “closed account.” She then contacted Brad Hunter, and was told that the checks had been stolen. Later, Defendant was stopped for a traffic offense while driving a car belonging to his girlfriend and in which she was a passenger. A search of the car revealed several checks belonging to “Brad Hunter.”

Defendant was charged with two counts of forgery. At trial, Defendant called one witness, but did not testify himself. A jury found Defendant guilty on both counts, and Defendant was sentenced as a prior and persistent offender to consecutive terms of ten years. This appeal followed.

Defendant, in his sole allegation of error, maintains:

The trial court plainly erred in failing to sua sponte strike venire members Martin and Bartlett for cause because they both indicated that they would believe [Defendant] to be guilty if he did not testify, in violation of [Defendant’s] rights to due process of law and a fair trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§10 and 18(a) of the Missouri Constitution, in that Martin and Bartlett’s inability to acquit a defendant who did not present evidence disqualified them from jury service and placed upon [Defendant] a burden to present a defense, which was manifestly unjust.

We disagree.

To qualify as a juror, a venire-person must enter upon that service with an open mind, free from bias and prejudice. State v. Wheat, 775 S.W.2d 155, 158 (Mo. banc 1989). The State bears the burden of proof in a criminal trial, and a venireperson who is unable to follow that principle must be excused for cause. State v. Lang, 795 S.W.2d 598, 602 (Mo.App. E.D.1990). “For a trial court to deny a legitimate challenge for cause constitutes an abuse of discretion and reversible error.” State v. Walker, 795 S.W.2d 522, 525 (Mo.App. W.D.1990).

In the present case, during voir dire examination, the members of the veni-re panel were asked if they understood that the State bore the burden of proof in showing Defendant’s guilt. They all indicated that they did. Later, during voir dire, the following exchange took place between Defendant’s counsel and the veni-re:

Defendant’s Counsel: Now, is there anyone here in this group who, because of the charge, which is a forgery count or counts that they’re alleging he did, is there anyone that has a problem with the fact the defense may not want to put on any evidence at all, may feel that it’s not necessary, just don’t do it — just doesn’t do it? Would anyone consider that a bad thing, they think the accused ought to present some evidence? ...
Venireperson Martin: ... I do realize where the burden of proof lies, but I should think, personally speaking, if I was accused of something, I would want to help prove that I did not do it by providing evidence.
Venireperson Bartlett: I feel that if you did not have to state your case on your side, how are we going to know both sides of the story if all we’re hearing is just one side from the plaintiffs?

Defendant did not move to strike Bartlett and Martin for cause, nor did Defendant exercise peremptory strikes for those jurors. “The failure to make a timely and proper objection to members of a jury panel constitutes a waiver.” State v. Wilson, 888 S.W.2d 744, 750 (Mo.App. E.D.1994).

Recognizing that this point is not properly preserved for appeal, Defendant requests that we grant relief for plain error pursuant to Rule 30.20. This rule provides, in pertinent part, that “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20. Under the plain error rule, prejudice exists where the error complained of impacts the rights of a defendant so substantially that manifest injustice or a miscarriage of justice will result if the error is not corrected. State v. Dillard, 158 S.W.3d 291, 299 (Mo.App. S.D.2005). The appellant has the burden of showing manifest injustice or miscarriage of justice. State v. Mitchell, 145 S.W.3d 21, 22 (Mo.App. S.D.2004). Plain error review should be used sparingly and is not a justification to review every point that has not been properly preserved. Id. We find no basis for plain error relief here.

Missouri courts have consistently held that a trial court is under no duty to remove any venire member sua sponte. State v. Eastburn, 950 S.W.2d 595, 599 (Mo.App. S.D.1997); State v. Overby, 432 S.W.2d 277, 279 (Mo.1968); State v. Johnson, 637 S.W.2d 290, 291 (Mo.App. S.D.1982); State v. Dodson, 595 S.W.2d 59, 60 (Mo.App. E.D.1980); State v. Lane, 551 S.W.2d 900, 907 (Mo.App.K.C.1977); State v. Gamache, 519 S.W.2d 34, 41 (Mo.App.St.L.1975). Furthermore, Defendant cites no case where a trial court has been found to have committed reversible error, under plain error review, for failing to remove a member of the venire sua sponte. This absence is the natural result of the policy requiring a contemporaneous objection to the qualifications of jurors. “[Such a policy] serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction attack on the jury selection process.” State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991). “For that reason, juror challenges made for the first time after a conviction are highly suspect.” Id. “A defendant cannot stand trial, hoping for acquittal, and then challenge the selection of the jury which convicts.” State v. Bynum, 680 S.W.2d 156,160 (Mo. banc 1984).

In any event, we find that Defendant was not prejudiced by Bartlett and Martin’s presence on the jury. In so finding, we are instructed by Hadley and East-bum.

In Hadley, a prospective juror stated she could not be impartial if the defendant did not take the stand. 815 S.W.2d at 423. Defense counsel made no challenges to any member of the venire. Id. The Supreme Court of Missouri held that “[a]ny potential miscarriage of justice in having [the venireperson] on the jury was entirely dependent upon defendant failing to testify.... When defendant took the stand, the possibility of prejudice ... evaporated.” Id. at 424.

Similarly, in Eastbum, two members of the venire panel indicated that they expected the defendant to prove his innocence. 950 S.W.2d at 597. Neither juror was challenged for cause and both served on the jury. Id. at 597-98. The defendant testified at trial. Id. at 598. Following Hadley, this court held that where a defendant testifies, a trial court cannot be convicted of reversible error for failing to remove a venireperson sua sponte because he believed that the defendant should testify. Id. In addition, we held there was no basis for plain error relief on the grounds that the trial court should have removed the veniremembers because they expected the defendant to prove his innocence. Id. at 598-99.

In the present case, Bartlett and Martin both indicated an expectation that Defendant would present evidence. The record shows that Defendant called one witness, his brother, to testify at trial. Any potential miscarriage of justice in having Bartlett and Martin on the jury, because of their responses during voir dire, was entirely dependent upon Defendant failing to present evidence. When Defendant presented evidence at trial, “the possibility of prejudice ... evaporated.” Hadley, 815 S.W.2d at 424. Given the facts of this case, there was no manifest injustice or miscarriage of justice resulting from Bartlett and Martin remaining on the jury. Defendant’s point is denied.

The rejection of Defendant’s point on appeal does not, however, end our consideration of this case. As previously related, Defendant was charged as a prior and persistent offender. The trial court found that Defendant was a prior and persistent offender and announced that it was sentencing him accordingly. However, the written judgment and sentence fails to reflect that finding. The failure to memorialize accurately the decision of the trial court as it was announced in open court was clearly a clerical error. “Rule 29.12 permits a trial court to correct such clerical errors in the judgment that obviously are a result of oversight or omission.” State v. Taylor, 123 S.W.3d 924, 931 (Mo.App. S.D.2004) (quoting State v. Booyer, 87 S.W.3d 926, 931 (Mo.App. S.D.2002)). We affirm the conviction and sentence, but remand this case with instructions to the trial court to enter a written judgment reflecting the judgment and sentence as announced by the trial judge in open court.

BATES, C.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . All references to rules are to Missouri Rules of Criminal Procedure (2004) unless otherwise indicated.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas A. JENSEN, Defendant-Appellant.
    No. 26901.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 24, 2006.

      Teresa Grantham, Springfield, for Appellant.
    Darrell L. Moore, Greene County Prosecuting Attorney and Bryan R. Berry, Assistant Prosecuting Attorney, Springfield, for Respondent.
   PHILLIP R. GARRISON, Judge.

Thomas A. Jensen (“Defendant”) was charged with child molestation in the second degree, a violation of Section 566.068, and assault in the third degree, a violation of Section 565.070. After a bench trial, he was found guilty on both counts and sentenced to terms of one year for the child molestation charge and fifteen days for the assault charge to run concurrently. The trial court suspended execution of the sentences and Defendant was placed on supervised probation for two years. Defendant now contests the sufficiency of the evidence to support his conviction of child molestation in the second degree. We affirm.

Sufficiency of the evidence in a court-tried case is determined by the same standard employed when reviewing a jury-tried case. State v. Waddell, 164 S.W.3d 550, 551 (Mo.App. S.D.2005). We must determine whether there was sufficient evidence from which the trier of fact could have reasonably found guilt. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). An appellate court may not weigh the evidence, but accepts as true all evidence proving guilt together with all reasonable inferences that support the verdict. State v. Davis, 51 S.W.3d 869, 870 (Mo.App. S.D.2001). All contrary evidence and inferences are disregarded. State v. Love, 134 S.W.3d 719, 721 (Mo.App. S.D.2004). Viewed in this light, the evidence most favorable to the judgment shows:

Defendant, manager of a Pizza Hut in Willard, Missouri, interviewed and hired sixteen-year-old C.K. for a position at the restaurant in March 2003. On Saturday, September 27, 2003, C.K. was working the morning half of a split-shift, when a coworker playfully threw water on her, soaking her uniform in the area of her buttocks. As C.K. was clocking out to leave, Defendant grabbed her in the buttocks with his right hand and said, ‘Tour butt’s wet.” C.K. immediately went to the back of the restaurant and told a co-worker what Defendant had done, then left the restaurant.

When C.K. returned later that day for the second half of the split-shift, she asked Defendant about a larger uniform shirt she had previously requested. Defendant went out to his vehicle to get her another shirt. When he returned, Defendant gave her the shirt and “pinched her butt” with his right hand. She was “shocked” and “surprised” by Defendant’s actions, and immediately told another employee about the incident.

Sometime around 7:00 p.m. that same evening, C.K. was behind the pizza-cutting counter, and as she was reaching to get some sauce, Defendant came up behind her to restock pizza delivery boxes. Leaning over C.K., he pinned her against the counter and pushed his erect penis against her backside with such force it pushed her body forward. C.K. threw down the pizza cutter, and told Defendant, “I give up.” She then went to the back of the store and reported the incident to the assistant manager and the shift leader.

On the following Monday, C.K. spoke to the area Pizza Hut General Manager about Defendant’s actions. Pizza Hut management conducted an investigation of the incidents and subsequently terminated Defendant. C.K. later reported the incidents to the police.

Defendant was charged with child molestation in the second degree and assault in the third degree. After a bench trial, he was found guilty on both counts and, as indicated earlier, received a suspended execution of the sentences and was placed on supervised probation for two years. Defendant now appeals his conviction for child molestation in the second degree.

In his sole allegation of error, Defendant alleges insufficient evidence existed to support a finding of a specific intent that he touched the alleged victim for the purpose of sexual arousal. “A person commits the crime of child molestation in the second degree if he or she subjects another person who is less than seventeen years of age to sexual contact.” Section 566.068.1. “Sexual contact” is defined as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3).

It is the State’s burden to prove each and every element of a criminal ease. Love, 134 S.W.3d at 722. The elements of the offense of child molestation in the second degree are twofold: the victim must be less than seventeen years of age and the prohibited touching must have been “for the purpose of arousing or gratifying sexual desire” of a person. The latter element is necessary to prevent innocent contacts from being deemed criminal conduct. Id. at 723.

The only issue raised here relates to the sufficiency of the evidence proving that Defendant touched C.K “for the purpose of arousing or gratifying sexual desire” of a person. “In assessing whether a touching is for the purpose of arousing or gratifying sexual desire rather than being an innocent touching, a fact-finder looks at the circumstances of the particular case.” Id. A defendant’s purpose is ascertained by his or her mental state. Id. at 722. Direct evidence of a particular mental state is seldom available; therefore, proof of the mental state will usually rest on circumstantial evidence and permissible inferences. State v. Blom, 45 S.W.3d 519, 521 (Mo.App. W.D.2001). The State may establish a particular mental state by evidence of Defendant’s conduct before and after the act itself. Id. In assessing the sufficiency of the evidence, the same principles apply regardless of whether the evidence is direct or circumstantial. Love. 134 S.W.3d at 722.

We hold that the evidence in this case is sufficient to support a finding by the trial court that Defendant’s contact with C.K. was done for the purpose of arousing or gratifying sexual desire. Regarding the contact at issue, C.K. testified as follows:

A: I was reaching over to get sauce for either the pizza or breadsticks, and [Defendant] came up behind me and was putting boxes up. And he was, like, right behind me and you could feel everything behind when I was reaching over.
Q: Now, when you say you could feel everything, I need you to tell the Court what you felt.
A: I felt his penis up against my back side.
Q: Okay. Now, how did his penis feel?
A: Hard.

Because there was evidence that Defendant’s penis was erect, it is reasonable to infer that he was aroused. Defendant’s conduct before and after the incident support the conclusion that Defendant leaned against C.K. for the purpose of sexual arousal. During an earlier shift on the same day, Defendant grabbed C.K’s buttocks. During C.K.’s second shift that day, Defendant pinched her buttocks. C.K. also testified that Defendant made her feel uncomfortable on other occasions by coming up too close or putting his hand on her shoulder or waist. Evidence of the incident described above considered in the context in which it occurred provided a sufficient basis for the trial court to infer that the contact was done for the purpose of arousing or gratifying Defendant’s sexual desire.

Defendant’s point is denied, and the judgment of trial court is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . Defendant contends in his brief that in a case where the evidence presents two equally valid inferences, one of defendant’s guilt and the other of his innocence, the trial court lacks the power to convict and the appellate court must reverse. However, as the State points out, this approach to reviewing the sufficiency of evidence was explicitly overruled by the Supreme Court of Missouri in State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998) (holding that "[b]ecause the equally valid inferences rule is at war with the due process standard governing an appellate court’s review of the sufficiency of evidence, the equally valid inferences rule should no longer be applied”). Defendant conceded at oral argument that the equally valid inferences rule was no longer being used by Missouri courts. Because the equally valid inferences rule has been abandoned by the Supreme Court of Missouri, we will not apply it here.


author: RONALD R. HOLLIGER, Judge.

text:
    Robert COX, Respondent, v. Richard COLLINS, Jr., Respondent, Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Appellant.
    No. WD 65363.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Christina Hammers, Office of Attorney General, Jefferson City, for Appellant.
    Lisa Rae McWilliams, for Robert Cox, John R. Emerson, for Richard Collins, Jr., Kansas City, KS, for Respondent.
   RONALD R. HOLLIGER, Judge.

The question is whether the Second Injury Fund or the employer at the time of injury should pay that portion of permanent disability benefits attributable to the employee’s income with his second employer. More precisely the issue is whether the term “wage loss benefits” in the version of Missouri Revised Statutes section 287.220.9 (1993) that was in effect for a narrow window of time — including the date of this accident — includes benefits payable for permanent total disability benefits or only for temporary total benefits. The Industrial Commission found that the Second Injury Fund was responsible for the difference and the Fund now appeals. Affirmed.

FACTS

On July 8,1995, Robert Cox (hereinafter “Employee”) was working as a part-time laborer for Collins Construction (hereinafter “Employer”). While working on a rooftop, he became dizzy and, while attempting to descend a ladder from the rooftop, lost consciousness and fell about ten feet to the ground. Employee sustained injuries resulting in permanent paralysis from the chest down and is confined to a wheelchair. At the time of his injury, Employee also had another job as a mechanic at Wal-Mart.

After Employee’s injury, he was unable to successfully return to either of his jobs. The Employee, Employer, and Second Injury Fund have stipulated that the Employee reached maximum medical improvement on February 28, 1998. All parties have also stipulated that the Employee has been permanently and totally disabled since the date he reached maximum medical improvement.

At the final hearing on his claim before the Administrative Law Judge (“ALJ”), Employee sought from his Employer and/or the Second Injury Fund that portion of total permanent total disability benefits resulting from lost wages at his Wal-Mart job — his second job where he was not injured yet still could not return to work. The Fund admitted that it was liable for the Wal-Mart benefits for the period of time that Employee was temporarily and totally disabled (July 9, 1995— the day after injury — through February 28, 1998 — the date of maximum medical improvement), but denied that it was liable for the permanent and total benefits resulting from the loss of Wal-Mart wages. Rather, the Fund contended that Collins Construction was responsible for that portion of the permanent total benefits as well.

Following the hearing, the ALJ found that Employee was permanently and totally disabled due to his work-related injury and that, under the statutes in effect at the time of Employee’s injury, the Second Injury Fund was hable for Employee’s permanent total disability benefits resulting from the loss of his Wal-Mart wages. The judge ordered Employer to pay Employee the weekly permanent total disability rate based upon his employment with Collins Construction, for the rest of his life. The judge also ordered the Second Injury Fund to pay the weekly permanent total disability rate based upon his employment at Wal-Mart, for the remainder of Employee’s life. The Labor and Industrial Commission affirmed the award, and the Second Injury Fund now appeals, asserting that under the former versions of sections 287.220.9 and 287.250.8 the Employer, not the Fund, is liable for the permanent total benefits stemming from the Wal-Mart employment.

STANDARD OF REVIEW

In an appeal from a final workers’ compensation award by the Labor and Industrial Relations Commission, this court reviews the findings and award of the Commission, rather than those of the (ALJ). Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo.App. S.D.2004). However, when the Commission incorporates the ALJ’s award and decision in its own determination, as in this case, we review the ALJ’s findings and conclusions, as adopted by the Commission. Id. The scope of our review is controlled by statute:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Mo.Rev.Stat. Section 287.495.1 (2000). “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We defer to the Commission on fact issues but review questions of law, such as the interpretation of statute, de novo, liberally construing all provisions to favor the employee. George v. City of St. Louis, 162 S.W.3d 26, 30 (Mo.App. E.D.2005).

DISCUSSION

The Second Injury Fund (“the Fund”) was created in 1943 for the purpose of encouraging the employment of the physically disabled. Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo.1966). Until 1993 the Workers’ Compensation Act did not provide additional benefits for employees who had multiple employers. The authority for the receipt of these additional benefits flows from Missouri Revised Statutes sections 287.220.9 and 287.250.8 (Cum.Supp.1993). Prior to the enactment of these provisions, an employee with multiple jobs was only entitled to receive benefits for lost wages from the employment at which he or she was injured; but under the provisions adopted in 1993, the employee can recover benefits for his time away from the employment where he was not injured, as well. The 1993 enactments require the Fund to provide certain benefits for employees who have multiple jobs and sustain an injury that prevents them from working both jobs. The dispute here is over what benefits the Fund must provide. The Fund concedes that under those enactments it is responsible for a portion of temporary total benefits earned during the employee’s healing period. It contends, however, that it is not responsible for any portion of the permanent total benefits awarded the employee herein but that his employer should pay all benefits for permanent total disability.

Cox was injured on July 8, 1995, and the resolution of our issue depends upon the meaning and effect of section 287.220.9 as of that date. It reads:

Any employee who at the time a com-pensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer’s employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury. The provisions of this subsection shall expire on August 28, 1996.

Mo.Rev.Stat. (Cum.Supp.1993) (emphasis added). As part of the same 1993 enactment (SB 251) the legislature enacted Section 287.250.8 establishing the computation of average weekly wages where an injured employee had multiple employers. In 1993, section 287.250.8 provided:

For an employee with multiple employments, the employee’s total average weekly wage shall be equal to the sum of the total average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of the injury.

Section 287.220.9 was amended in 1998 to eliminate the “sunset” provision in the last sentence. Section 287.250.8 was also amended in 1998 to restrict its application to only provide benefits for temporary disability. See Ristau v. DMAPZ, Inc., 130 S.W.3d 602, 606 (Mo.App. W.D.2004).

The Fund cites Hillyard v. Hutter Oil Company, 978 S.W.2d 75 (Mo.App. S.D.1998), and asserts that it controls the issues of this case. Mr. Hillyard was shot in 1995 (while the same 1993 statutory scheme with which we are concerned was in effect) while working for a deli (his injury Employer). Id. at 76. He also worked at Midwest Traders. Id. He suffered permanent partial disability but apparently was unable to return to work at all for Midwest. Id. The Commission calculated Hillyard’s average weekly wage under section 287.250.8 using the wages from both employers and ordered Hutter Oil (the injury Employer) to pay benefits calculated from both employers. Id. The appellate court affirmed, but did not resolve the question we face here, as we discuss further below.

The Fund’s argument here leans heavily on a quote from Hillyard: “By ‘sunset’ language, the legislature eliminated the Second Injury Fund’s liability for temporary total disability benefits effective August 28, 1996, yet left the ‘multiple employment’ language of Section 287.250.8 intact.” Id. at 78. (emphasis added). The quote is, of course, referring to the original language of section 287.220.9 that cut off the section’s application on August 28, 1996. The Fund argues that this sentence from the Hillyard opinion means that section 287.220.9 was limited in its application to only temporary total disability benefits because the court mentioned no other kind of benefits that would be eliminated upon the triggering of the sunset provisions of the statute.

This statement from Hillyard is of course dicta. Interestingly, in a footnote the court said that the Employer had raised an argument briefly that if section 287.250.8 were “the method of calculating permanent partial benefits in the multiple employment section, cross-referencing of section 287.220.9 with [section 287.250.8] would be the means for calculating the Second Injury Fund’s liability for permanent partial disability rather than the Employer’s.” Id. at 80 n. 4. In other words, the Employer was arguing for a similar result to the issue here of whether the Fund was liable for permanent benefits (albeit partial rather than total). The Hillyard court, however, held that this argument was abandoned because not raised in the point relied upon. Id. Because Hillyard did not resolve the question, it provides us no assistance in resolving the issue we now face.

The Fund quotes language from another case, Stark v. Missouri State Treasurer, 954 S.W.2d 645, 647 (Mo.App. W.D.1997), indicating that the plain meaning of section 287.220.9 shows an intent by the legislature to “limit the duration” of wage loss benefits. The Fund alleges that the court was restricting section 287.220.9’s application to temporary total benefits when it indicated that the legislature’s intent was to limit the duration of benefits recoverable under the statute. Ms. Stark was injured on July 16, 1993, before the 1993 amendments took effect. Id. at 646. She claimed temporary total benefits for a six-week period from her second employment and claimed that the Fund should pay them. Id. This court held that the 1993 amendments that we deal with now were not retroactive and denied her claim. Id. at 647. Frankly, the limited duration language quoted by the Fund is not clear to us, nor does it make any sense in the context of Ms. Stark’s claim for six weeks of temporary total benefits. Most importantly, however, it is dicta, since the court was not required to interpret the 1993 amendments as part of its decision.

Finally, the Fund argues that our decision in Ristau reaffirms the holdings in Stark and Hillyard that the Fund’s liability for second job wage loss is for temporary total disability only. First we note that Ristau does not even mention Stark and cites Hillyard only for the history of second job benefits prior to the 1993 enactments. 130 S.W.3d at 606. And, as the Fund acknowledges, Ristau involves a claim for an injury after the 1998 amendments. Id. at 604.

Ristau does, however, provide us some guidance in our inquiry as to the meaning of the 1993 amendments. Ms. Ristau sought additional death benefits from the Fund representing her deceased husband’s wage losses from his second employment. Id. We held that the 1998 amendments evidenced a clear legislative intent that Fund liability for second job wage loss benefits was limited to temporary total benefits. Id. at 605. In part we based our decision on the maxim that “[a] change in a statute is ordinarily intended to have some effect.” Id. at 606 (citation omitted). Specifically we said that the 1998 amendment “demonstrates the legislature’s intent to limit the Fund’s liability for benefits under section 287.220.9 to temporary disability benefits as calculated in subsection 8 of section 287.250.” Id. Here the Fund urges that its liability was already so limited and in effect it urges that the 1998 amendments had no legal effect. We disagree. “We will not presume the legislature engaged in a useless act.” Id.

Assuming the amendment served some purpose, we must next ask what liability the 1998 amendments did limit. We can not perceive, and the Fund does not suggest, any other than liability for permanent benefits, total or partial. In fact, we believe that Ristau answered the question avoided in footnote four in Hillyard of how 287.220.9 and 287.250.8 are to be read together. Ristau, 130 S.W.3d at 606. Because of our interpretation we do not need to consider the Fund’s additional argument (circular in any event) that “wage loss benefits” are only temporary total benefits because the Fund is liable only for temporary total payments.

We hold that for injuries sustained after August 28, 1993, but before August 28, 1996, the Second Injury Fund is responsible, up to the statutory maximum, for permanent total disability benefits represented by the loss of wages from Mr. Cox’s second employment.

In its reply brief, the Fund raises for the first time an additional ground of error claiming that it cannot be held responsible to pay interest on the award against it. Points raised in appellant’s reply brief, but not the appellant’s original brief, will not be considered. Application of Gilbert, 563 S.W.2d 768, 771 (Mo. banc 1978).

The Commission’s award is affirmed.

PAUL M. SPINDEN, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.

      . Although not at issue in our case, the general rule seems to be that the repeal of a "sunset clause” in a statute effectively revises the statute in its former version. See State v. Chadeayne, 323 S.W.2d 680, 684 (Mo. banc 1959); see also In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1311-12 (8th Cir.1996).

      . Section 287.250.8 now provides: "For an employee with multiple employments, as to the employee’s entitlement to any temporary total or temporary partial disability benefits only pursuant to subsection 9 of section 287.220, and for no other purposes, the employee’s total average weekly wage shall be equal to the sum of the total of the average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of this injury." Mo.Rev.Stat. (2000) (emphasis added). The significance of the language in this amendment will be discussed later.


author: PER CURIAM.

text:
    Shane K. BRAKEFIELD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65282.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2006.
    Kent Denzel, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before: JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.
   ORDER

PER CURIAM.

Shane Brakefield appeals the judgment of the motion court denying his Rule 24.035 motion for postconviction relief. Mr. Brakefield sought to vacate his conviction of stealing, section 570.030, RSMo 2000, and sentence of four years imprisonment. He asserts on appeal that his guilty plea was not voluntarily entered because plea counsel had a conflict of interest in representing both him and his co-defendant wife.

For the reasons set forth in the memorandum provided to the parties, the judgment is affirmed. Rule 84.16(b).


text:
    Lorne BROWN, Appellant, v. Barbara Ann LINEBERRY, Respondent.
    No. WD 64815.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2006.
    Bradley P. Grill, Kansas City, MO, for Appellant.
    Barbara A. Lineberry, Kansas City, MO, pro se.
    Before: SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Lome Brown (“Brown”) appeals from a judgment following a bench trial in the Circuit Court of Clay County in favor of Barbara Lineberry (“Lineberry”) in Brown’s breach of written agreement action against Lineberry. In his sole point on appeal, Brown argues that the trial court erred in entering judgment in favor of Lineberry, because Missouri law allows custodial parents to waive the right to recover past-due child support, in that Li-neberry induced Brown to sign a consent for adoption, Brown relinquished his visitation rights and Lineberry allowed Brown to believe that the adoption was proceeding.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Phillip K. SMITH, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86161.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 28, 2006.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Robert J. Bartholomew, Jr., Jefferson City, MO, for respondent.

      Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Movant, Phillip K. Smith, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant argues that his guilty pleas were not voluntarily and intelligently made because his counsel erroneously promised him that if he entered his pleas he would receive long-term drug treatment.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Donnell WITHERSPOON, Appellant.
    No. ED 86016.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 28, 2006.
    Mark W. Lyons, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN.
   ORDER

PER CURIAM.

Donnell Witherspoon (“defendant”) appeals the judgment on his conviction of trafficking in the second degree, unlawful use of a weapon, and possession of a controlled substance. Defendant claims the trial court erred in sentencing him as a persistent drug offender.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Zivan CHRISTIAN, Defendant/Appellant.
    No. ED 84863.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 28, 2006.

      Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.
    Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, Zivan Christian, appeals from a judgment entered by the trial court after a jury found him guilty of felonious restraint, in violation of section 565.120 RSMo (2000), and burglary in the first degree, in violation of section 569.160 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to fifteen years imprisonment for felonious restraint and seventeen years imprisonment for burglary, to be served concurrently.

On appeal, defendant challenges the sufficiency of the evidence on both counts. He also claims the trial court plainly erred in allowing a police officer to testify to his statement. We affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

We view the facts in the light most favorable to the verdict. Victim, who was defendant’s girlfriend, lived at a house in Wentzville, Missouri. On July 16, 2003, at approximately 9:00 a.m., defendant and victim began to argue. As the argument continued, defendant dragged victim by her hair, punched her in the face, hit her on her legs, back, and arms, threw her on the floor and threw her head against the concrete. Victim telephoned her sister twice to come pick up her and her children.

When victim’s sister and a friend arrived, they heard victim and her daughter screaming, and they heard sounds of someone being thrown against the wall. Victim’s daughter ran out to the car. When victim and her son tried to leave, defendant came out after them. Victim’s sister told defendant she was going to call the police, and the Mend called 911 and put victim’s daughter into the car. While they were outside, defendant pulled victim’s hair and punched her. After defendant took victim’s son back into the house, victim went back in and retrieved her son. Defendant came out and threw rocks at the Mend’s car and chased her down the street.

The police department received a report of domestic violence at victim’s house at approximately 11:30 a.m. or 12:00 p.m. that day. While the officers were responding, the dispatcher told them that defendant had outstanding warrants.

The officers arrived to find victim, who had bruises on her face and marks on her neck, crying and yelling in the front yard. She told the officers, “He held me, he held me, he wouldn’t let me go.” Victim told the officers that defendant had beat her, and she gave them a description of defendant. The officers went into the house to arrest defendant for the outstanding warrants and to investigate the assault, but defendant was not in the house.

Meanwhile, shortly before 12:00 p.m., defendant entered a neighbor’s house. The neighbor’s daughter heard footsteps and discovered a man, later identified as defendant, in the living room, holding an object that had been in her upstairs bedroom. Defendant told her, “I’m not here to rob you. I’m hiding from the cops.” Defendant asked if he could hide in the basement, but the daughter said she did not want to get into trouble and told him no. At that point, the neighbor’s daughter told defendant that she saw the neighbor’s car pull into the driveway. When the neighbor came in, she saw defendant run out the back door. Defendant did not have permission to enter the neighbor’s house.

After twenty to thirty minutes of searching the neighborhood on foot, one of the officers saw defendant standing on the sidewalk and arrested him for outstanding warrants and for domestic assault. Defendant told the officer that he ran because he knew he had “warrants.” Defendant was transported to the St. Charles County jail, where he made a statement to the police.

While police were searching for defendant, an ambulance was called for victim, and she was treated by paramedics. Victim was later treated at the local emergency room, where she was given a CT scan, X-ray, tetanus shot and pain medication. Victim had swelling, marks, abrasions, bruises, and contusions on her face, right eye, right shoulder, and legs, which were photographed.

On November 26, 2003, defendant moved to suppress his post-arrest statement to police. On December 18, 2003, the court denied the motion to suppress after a hearing. The trial began on May 18, 2004. Defendant did not testify or offer any other evidence.

DISCUSSION

1. Sufficiency of the Evidence — Count I

For his first point, defendant contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence because there was insufficient evidence to submit the felonious restraint count to the jury. Defendant argues that the state did not show that defendant exposed victim to a substantial risk of serious injury because she had minor injuries and did not suffer serious permanent disfigurement or protracted loss or impairment of the functions of any part of her body, and there was no expert evidence of a substantial risk of death.

On review of the denial of a motion for judgment of acquittal, we determine if the state adduced sufficient evidence to make a submissible case. State v. Foster, 930 S.W.2d 62, 63 (Mo.App.1996). In making this determination, we accept as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all evidence and inferences to the contrary. Id. at 63-64. We ascertain whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. at 64. We must consider all inferences favorable to the state. Id.

“A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.” Section 565.120.1. Under this statute, it is irrelevant whether the victim suffered serious physical injury. State v. Smith, 902 S.W.2d 313, 315 (Mo.App.1995). The sole elements of this offense are that the defendant 1) unlawfully restrained the victim and 2) exposed the victim to a substantial risk of serious physical injury. Id.; State v. Baker, 791 S.W.2d 939, 942 (Mo.App.1990); State v. Warren, 779 S.W.2d 751, 753 (Mo.App.1989).

Section 565.002(6) RSMo.1994 defines “serious physical injury” as a “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” A protracted loss or impairment of the function of any part of the body entails an injury short of permanent but more than a short duration. State v. Brokus, 858 S.W.2d 298, 301 (Mo.App.1993). Further, an impairment of the function of any part of the body means damage, injury or deterioration and is distinguishable from “loss” of function. Id.

Smith, 902 S.W.2d at 315.

Defendant does not dispute that he restrained victim. Rather, he contends that the state failed to present sufficient evidence that this restraint exposes a victim to a substantial risk of serious physical injury. Whether a defendant’s unlawful restraint exposes a victim to the risk of serious physical injury is to be determined from all of the circumstances. Id. The question is whether the defendant engaged in physical intimidation or violence, which, if repeated or carried further, could have seriously injured the victim or threats of or the propensity to commit violence which, if carried out, could have seriously injured the victim. Smith, 902 S.W.2d at 315. Whether or not the victim actually suffered serious physical harm is not dis-positive. Baker, 791 S.W.2d at 942.

Defendant dragged victim by the hair, punched her in the face, hit her, threw her on the floor, and threw her head against concrete. These are acts that, had they been repeated or carried further, could have seriously injured victim. By engaging in these acts of physical violence, defendant exposed victim to the risk of serious physical harm. See Baker, 791 S.W.2d at 942; State v. Terrell, 751 S.W.2d 394, 395-96 (Mo.App.1988); State v. Salkil, 659 S.W.2d 330, 334 (Mo.App.1983). Point one is denied.

2. Sufficiency of the Evidence — Count II

In his second point, defendant asserts that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the state did not prove that the defendant entered the neighbor’s residence with the intent to commit a crime, specifically with the intent to resist arrest by fleeing. Defendant contends that the state did not prove that he knew or reasonably should have known that the officers were making an arrest of him at the time he entered the house.

A person commits “the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.... ” Section 569.160.1. The state charged defendant with entering the house “for the purpose of committing the crime of resisting arrest.” A person who knows or reasonably should know that a law enforcement officer is making an arrest, and flees from that officer, commits the crime of resisting arrest. Section 575.150.1(1) RSMo (2000). The statute requires that a defendant 1) knows that a law enforcement officer is making an arrest and 2) resists the arrest by fleeing in order to prevent the officer from effecting the arrest. State v. Dossett, 851 S.W.2d 750, 751 (Mo.App.1993). “[T]he gravamen of the offense is resisting an arrest, not flight from an officer. Accordingly, the offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest.” State v. Brooks, 158 S.W.3d 841, 850-51 (Mo.App.2005).

“[Resistance to an arrest must occur when the person knows that an officer is making an arrest.” Dossett, 851 S.W.2d at 752. Section 575.150.1(1) does not allow a conviction to be based on an intent to resist in the event an arrest is made later. Id. “The arrest must be in progress when the ‘resistance’ occurs.” State v. Shanks, 809 S.W.2d 413, 418 (Mo.App.1991). An arrest is in progress once the officer is attempting to actually restrain or control the person of the defendant. See State v. Nicholson, 839 S.W.2d 593, 596 (Mo.App.1992).

In this case, although the officer intended to arrest defendant when he found him, and defendant knew that he would be arrested, the officer had not located defendant at the time defendant tried to hide in the neighbor’s house. The officer had not made any attempt to restrain or control defendant and, as a result, had not attempted to make an arrest. Since the officer had not commenced to make an arrest, defendant could not have entered the neighbor’s house with the purpose of committing the crime of resisting arrest. The state did not adduce sufficient evidence satisfying this element of the crime of burglary in the first degree.

However, when a conviction of a greater offense is overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements of the lesser offense, and the jury was required to find those elements to enter the erroneous conviction on the greater offense. State v. O’Brien, 857 S.W.2d 212, 220 (Mo. banc 1993). Trespass in the first degree is a lesser-included offense of burglary in the first degree without the added element of intent to commit a crime within the premises. State v. Granger, 966 S.W.2d 27, 29 (Mo.App.1998). “A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.” Section 569.140.1 RSMo (2000). Under the verdict-directing instruction for burglary, the jury found all of the elements of trespass in the first degree in arriving at its verdict on the burglary count. Granger, 966 S.W.2d at 29; see also Brooks, 158 S.W.3d at 852. Since trespass in the first degree does not require the element of intent to commit a crime on the premises, we may enter a conviction on this offense. Granger, 966 S.W.2d at 29.

Point two is granted with respect to defendant’s challenge of the sufficiency of evidence of burglary, and defendant’s burglary conviction must be reversed. However, because the jury found all the elements of trespass, the case must be remanded for entry of a judgment of conviction on this offense.

3. Admission of Defendant’s Statement

For his third point, defendant claims the trial court plainly erred when it “allowed” the state to introduce defendant’s statement to Deputy Joel Fann that he was the “crack man for the neighborhood.” He argues that this statement constituted irrelevant evidence of other crimes, the prejudicial nature of which outweighed any probative value.

At trial, Deputy Joel Fann was called by the state. He testified:

[Defendant] told me that this domestic started over drugs, that — [defendant] told me that he is the crack man for the neighborhood, and that when [the victim] wants crack she is supposefsic] to come to him. And that previously [the victim] had gone to someone else to obtain her crack. And [defendant] told me he knew that [the victim] did not have money, and that [the victim] had obtained crack from someone else other than him, and that in order for her to have gotten the cocaine from someone else that she would have had to have had sex with this other individual, and that’s what the fight was over.

Defendant made no objection of any kind to this testimony. To preserve a claim that prejudicial evidence of other crimes was improperly admitted, a defendant must object to that evidence on that ground at trial. State v. Miller, 14 S.W.3d 135, 137 (Mo.App.2000).

Because no objection was made, defendant’s point is reviewable, if at all, only for plain error. Id. We will not review a claim of plain error under Rule 30.20 unless there are substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. State v. Chaney, 967 S.W.2d 47, 59 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). There are no extraordinary circumstances in this case to justify reviewing this argument as a matter of plain error. State v. Mosley, 980 S.W.2d 1, 3 (Mo.App.1998). See State v. Mallett, 732 S.W.2d 527, 534-35 (Mo. banc 1987); State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994). Point three is denied.

4. Request for Remand

Defendant’s fourth point does not make a claim of trial court error, but requests this court to remand the case for a new suppression hearing because the transcript of that hearing has been lost. Defendant argues that if there had been a transcript, he might have raised two additional claims on appeal — whether the trial court erred in admitting his custodial statements and whether he was improperly removed from the suppression hearing.

On November 26, 2004, defendant filed a motion to suppress statements he made to the police. The trial court denied the motion to suppress on December 18, 2003, after a hearing. At trial, five months later, Deputy Fann testified without any objection to defendant’s oral statements.

We deny defendant’s request for a remand and his separately-filed motion for remand for two reasons. First, defendant has not raised any point on appeal challenging the denial of the motion to suppress, the voluntariness of his confession, or his removal from the courtroom during the hearing on the motion. Second, he did not object at trial to the admission of the statements.

We recognize that there are circumstances when a remand for a new suppression hearing is appropriate. In State v. Finster, 963 S.W.2d 414, 415 (Mo.App.1998), the court of appeals remanded for another evidentiary hearing “on the preserved issue,” which was the admissibility of a statement claimed to have been given without proper Miranda warnings, when the transcript of the motion hearing had been lost. This issue had been raised on appeal as error in denying the motion to suppress and in overruling the objection to the statement at trial.

In contrast, in this case, there is no need for a remand for a new suppression hearing. Defendant has not raised these claims in a point relied on. Moreover, because he did not object at trial, these claims were not preserved. State v. Gardner, 741 S.W.2d 1, 3 (Mo. banc 1987). ‘“[A] ruling on a motion to suppress is interlocutory and subject to change during the course of the trial.... Therefore, a specific objection is required when the evidence is offered at trial to preserve the issue for appellate review.’ ” State v. Evenson, 35 S.W.3d 486, 491 (Mo.App.2000) quoting State v. Cardona-Rivera, 975 S.W.2d 200, 203 (Mo.App.1998); see also Miller, 14 S.W.3d at 137. Defendant’s request for remand contained in point four and in his motion is denied.

Conclusion

We reverse the burglary conviction and remand for entry of a judgment of conviction and sentencing on the misdemeanor of trespass in the first degree, Section 569.140.1 RSMo (2000). In all other respects, the judgment is affirmed.

LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J., concur.

      . Defendant suggests that there is a possibility that, at the motion to suppress hearing five months before trial, the trial court told defendant he would not have to object at trial but would be considered to have a "continuing objection.” Defendant has pointed to nothing in the record supporting his claim that this might have happened. There was no indication in the transcript of the hearing on other pretrial motions or in the trial transcript that defendant had been granted a "continuing objection” to the introduction of his statement, even though there was a pretrial discussion about whether certain other of defendant’s statements would be admitted. In any event, a “continuing objection” presupposes an initial objection to all questions in a given line of questioning. See Black’s Law Dictionary 1101 (7th ed.1999). This initial objection must be made at trial to preserve a claim for review. Miller, 14 S.W.3d at 137.


text:
    Talar SHAHAB, Plaintiff/Appellant, v. RYAN’S FAMILY STEAK HOUSES, INC., Defendant/Respondent, Kenneth Dilling, Defendant, and Sherri (Last Name Unknown), Defendant.
    No. ED 86375.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 28, 2006.

      Jerome J. Dobson, Weinhaus, Dobson, Goldberg & Moreland, St. Louis, MO, for appellant.
    E. Grantland Burns, Nexsen Pruet Adams Kleemeier, LLC, Greenville, S.G., pro hac vice.
    Marvin L. Lindmark, L. Allison McKeel, Bobroff, Hesse, Lindmark & Martone, P.C., St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Plaintiff appeals from a judgment dismissing her action because she failed to comply with the trial court’s order to pay sanctions. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). No jurisdictional purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Avery TAYLOR, Appellant.
    No. ED 85991.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 28, 2006.
    Irene Karns, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Kramer, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN.
   ORDER

PER CURIAM.

Avery Taylor (“defendant”) appeals the judgment on his conviction of two counts of first degree statutory sodomy, one count of child molestation in the first degree, one count of burglary in the first degree, one count of second degree child molestation, and violation of a protective order. Defendant claims the trial court plainly erred in allowing the state to submit a question to the jury panel during voir dire and in allowing certain closing argument by the prosecutor.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).