source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WELLS FARGO HOME MORTGAGE, f/k/a Norwest Mortgage, Inc., Appellant, v. GEORGETOWN MORTGAGE CORP., Respondent.
    No. ED 85014.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    David T. Hamilton, St. Charles, MO, for appellant.
    Paul J. Puricelli, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Wells Fargo Home Mortgage (‘Wells Fargo”) appeals from the order of the trial court granting the motion of defendant Georgetown Mortgage Corporation (“Georgetown”) for summary judgment on Wells Fargo’s claim for breach of contract.

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 84.16(b).


text:
    John Edward TYLER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85446.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2005.

      Delores M. Berman, Chesterfield, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

John Edward Tyler (“Movant”) appeals from the judgment of the St. Charles County Circuit Court denying his Rule 29.15 motion for post-conviction relief. Movant claims that the trial court erred in denying his motion for post-conviction relief because his trial counsel failed to: (1) call Marguerite Gray, who would have testified to the victim AMG’s reputation for untruthfulness; (2) use AMG’s medical records to impeach her (3) object to testimony about his extra-marital affairs.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


author: GLENN A. NORTON, Judge.

text:
    STATE of Missouri, Respondent, v. Michael P. McCOY, Jr., Appellant.
    No. ED 85010.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2005.

      Deborah Daniels, Dora Fichter (co-counsel), Jefferson City, MO, for respondent.
    Irene Earns, Columbia, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Michael P. McCoy, Jr., appeals the judgment entered on his convictions for attempting to manufacture a controlled substance and unlawful use of drug paraphernalia. We reverse and remand.

I. BACKGROUND

McCoy was pulled over for a traffic violation and arrested for driving with a suspended license. The arresting officer noticed that McCoy’s hands were stained yellow, which the officer testified was consistent with stains from iodine, an ingredient used to manufacture methamphetamine.

Karrie Bowen was a friend of McCoy; they had a sexual relationship and used methamphetamine together. She testified that the night McCoy was arrested they had been at another friend’s house using methamphetamine. At some point, McCoy had called Bowen into the basement, which contained an operational methamphetamine laboratory. McCoy asked her to tear apart matchbooks to help make methamphetamine, and she complied. McCoy also asked for Bowen’s Medicaid card to scrape a chemical from a glass dish. When McCoy and another friend left the house, the manufacturing activity stopped. A later search of the home revealed the methamphetamine laboratory and the items about which Bowen had testified, including tattered matchbooks and her Medicaid card.

McCoy was charged with attempting to manufacture a controlled substance and with unlawful use of drug paraphernalia, namely matchbook strikers, acetone, pseu-doephedrine, iodine, muriatic acid and other items commonly used to produce methamphetamine that were seized from the lab. He had a prior conviction for creation of a controlled substance based on his possession of precursor ingredients of methamphetamine with the intent to manufacture methamphetamine. Before the jury trial on the instant charges, McCoy filed a motion in limine to prohibit the State from making any reference to his prior conviction. The State argued that the prior conviction was admissible because it showed that McCoy knew how to manufacture methamphetamine and had the intent to manufacture it, which were elements of the crimes with which he was charged. The court ruled that the evidence could be admitted for the limited purpose of showing McCoy’s knowledge of the methamphetamine manufacturing process and his intent to use the ingredients to manufacture it. At trial, the State mentioned the prior conviction in its opening and closing statements, and the prior conviction was admitted into evidence. McCoy properly objected and preserved his argument regarding the prejudicial effect of this evidence in a motion for new trial.

McCoy presented no evidence at trial. Through counsel’s opening and closing statements and cross-examinations of the State’s witnesses, McCoy denied involvement in the possession of drug paraphernalia or manufacturing of methamphetamine at the lab. Counsel argued that the State presented no direct evidence of his involvement in the crime aside from Bowen’s testimony, which he argued was highly suspect because of her plea agreement. McCoy was convicted on both counts and appeals.

II. DISCUSSION

A. Prior Conviction

We review a trial court’s decision to admit evidence for an abuse of discretion. State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999). Evidence of prior crimes is legally relevant, and therefore admissible, only when its probative value outweighs its prejudicial effect. State v. Bernard, 849 S.W.2d 10, 17 (Mo. banc 1998), superceded on other grounds by section 566.025 RSMo 1994. Generally, evidence of other similar crimes is not admissible to show that a person has a propensity to commit the crime charged. State v. Aye, 927 S.W.2d 951, 955 (Mo.App. E.D.1996). Evidence of other crimes may be admissible, however, to show intent, motive, identity, absence of mistake, or a common scheme or plan. Bernard, 849 S.W.2d at 13. If intent is the basis for the admission of otherwise inadmissible evidence, then the defendant’s intent must be a legitimate issue in the case. Aye, 927 S.W.2d at 955 (citing State v. Dudley, 912 S.W.2d 525, 530 (Mo.App. W.D.1995)). Otherwise, there is no need for such evidence. Aye, 927 S.W.2d at 955.

For instance, in State v. Ingleñght the defendant was charged with possession of several controlled substances. 787 S.W.2d 826, 827 (Mo.App. S.D.1990). He denied knowledge of the presence or nature of the items immediately surrounding him and his belongings in the car he was driving without any other passengers. Id. at 828. Thus, knowledge was directly at issue, and his prior conviction for drug possession was admissible. See id. at 829.

On the other hand, in Aye, the defendant was charged with possession of cocaine and the trial court admitted evidence of the defendant’s prior conviction for cocaine possession to show the defendant’s “knowledge and intent of what cocaine is.” 927 S.W.2d at 952-53. On appeal, this Court reversed, stating that the defendant “did not argue that he inadvertently possessed cocaine or that he thought it was another substance.” Id. at 956. Rather, the defendant had wholly disavowed possession of the drug, arguing that the cocaine was planted on him by the police. Id. The Court found no substantial controversy regarding intent, and thus no basis for admitting the prior conviction. Id. Similarly in this case, McCoy did not claim ignorance of the methamphetamine production process or a lack of familiarity with the items used to manufacture the drug. Rather, he argued that the only direct evidence that he was even present in the lab was Bowen’s testimony, which he argued was not credible, and that the police did not find him in possession of any methamphetamine paraphernalia. While this evidence and argument put McCoy’s participation in the crime at issue, it did not, as the State claims, thereby raise the specific issues of his intent to commit the crime or his knowledge of how to manufacture methamphetamine. General denial of involvement in the crime is not sufficient to make intent a legitimate issue.

Likewise, contrary to the State’s argument, the fact that knowledge and intent were elements of the charged crimes did not render McCoy’s prior conviction automatically admissible:

The prosecution should not automatically assume that whenever knowledge or intent is an element of the crime, evidence of other crimes bearing on intent is automatically admissible. In a prosecution for assault with intent to kill, it should not be assumed that the defendant’s previous murder conviction is admissible to show intent to kill. To allow evidence of the prior conviction would play into illicit reasoning based on propensity and bad character. Also, there is no reason to introduce prejudicial evidence where there is no actual controversy as to the defendant’s knowledge or intent.

Dudley, 912 S.W.2d at 529-30. Because there was no controversy in this case as to the defendant’s knowledge or intent, there was no reason to admit it. Thus, the probative value of McCoy’s prior conviction was slight and was outweighed by its highly prejudicial effect of alluding to McCoy’s propensity to commit the crime and his bad character. Admitting the pri- or conviction in this case was an abuse of the trial court’s discretion.

Point I is granted. The convictions must be reversed, and the case remanded for a new trial. The other points on appeal — regarding double jeopardy arising from the convictions and the allegedly erroneous admission of other bad acts — are moot. But because the evidentiary issue is likely to recur on retrial, we will address it.

B. Other Bad Acts

McCoy argues that evidence of Bowen’s sexual relationship with him was not admissible because it was evidence of a prior bad act and was not relevant. We disagree. The State explained that Bowen’s testimony about her relationship with McCoy showed why McCoy had invited her to the friend’s house. Bowen’s explanation of her relationship with McCoy tended to make her testimony more believable and easier to understand, which in turn supported her testimony about his involvement in the charged crime. Therefore, even if it suggested misconduct because Bowen was a teenager and much younger than McCoy, the testimony nevertheless presented a complete picture of the events in the case and was logically relevant. See State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994); State v. Barriner, 34 S.W.3d 139, 144 (Mo. banc 2000) (evidence is logically relevant when it legitimately tends to establish that the defendant is guilty of the offense for which he is being tried).

III. CONCLUSION

The judgment is reversed, and the case is remanded for a new trial.

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


text:
    Sharon L. PUETZ, Respondent, v. Ronald C. PUETZ, Appellant.
    No. ED 85613.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2005.
    Bradley S. Dede, Clayton, MO, for appellant.
    Jane E. Tomich, St. Charles, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Appellant Ronald Puetz appeals the trial court’s entry of a default judgment dissolving his marriage to Sharon Puetz, the trial court’s denial of his motion to set aside the default judgment, and the property-division, child-custody, and child-support provisions of the judgment. We have reviewed the parties’ briefs and the record on appeal and find that Appellant’s brief preserves nothing for appeal. Rule 84.04; Rule 84.13(a). An 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 trial court’s judgment is affirmed. Rule 84.16(b)(5).


text:
    James GRUBBS, Employee/Respondent, v. SPECTRUM CLEANING SERVICES, INC., Employer/Appellant, and Division of Employment Security, Respondent.
    No. ED 85810.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Rehearing Denied Nov. 2, 2005.
    Jenkins & Kling, P.C., Roger W. Pecha and Jocelyn A. Brennan, St. Louis, MO, for Appellant.
    Larry R. Ruhmann, St. Louis, MO, for Respondent.
    James Grubbs, acting pro se.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Spectrum Cleaning Services, Inc. appeals from the decision of the Labor and Industrial Relations Commission (Commission) in favor of James Grubbs (Employee) determining that Employee was not discharged for misconduct connected with work.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error lack merit. The order of the Commission is supported by competent and substantial evidence on the whole record. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. We affirm pursuant to Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the Commission’s order pursuant to Rule 84.16(b).


text:
    Ahmad ADISA, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85024.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2005.
    Kristina Starke, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Louise Kramer, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Ahmad Adisa (Movant) appeals from the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Movant raises four points on appeal. In his first three points, Movant argues the motion court erred in denying his motion for post-conviction relief because defense counsel was ineffective for failing to request a continuance due to the State’s last minute endorsement of a key witness, to request a mistrial or recall a witness when the State’s rebuttal witness said the State had “the wrong man,” and to call alibi witnesses who would have testified Movant was at the laundromat the night of the murder. In his fourth point, Movant argues the motion court erred in denying his motion for post-conviction relief because the State knowingly presented the false testimony of a witness in order to secure Movant’s conviction. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


author: JAMES K. PREWITT, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Randy Steven TEAGUE, Defendant-Appellant.
    No. 26498.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 20, 2005.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Even J. Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.
   JAMES K. PREWITT, Presiding Judge.

Randy Steven Teague (“Appellant”) challenges the trial court’s jurisdiction to accept his guilty pleas. Whether the trial court had jurisdiction is a question of law that we review de novo. State v. Ferrier, 86 S.W.3d 125, 127 (Mo.App.2002). Appellant bases his contention on § 217.460, RSMo 2000, which is set forth below.

On May 14, 2003, Appellant was charged with three counts of second degree burglary and three counts of stealing. On November 26, 2003, Appellant filed an “Inmate’s Request for Disposition of Indictments, Informations, or Complaints.” At the preliminary hearing on March 16, 2004, the court dismissed one count of second degree burglary and one count of stealing. The State filed an amended information on March 23, 2004, charging Appellant with two counts each of stealing and burglary in the second degree.

On March 25, 2004, Appellant appeared with public defender Nicki Neil and entered a plea of not guilty. Appellant’s trial was set for May 25, 2004, however, at a hearing held on May 18, 2004, the prosecutor informed the court that a May 25 trial date would place final disposition one day beyond the 180-day limit provided in § 217.460. Appellant’s counsel, after speaking with Appellant, announced that he “waived his 180 days.” Nevertheless, the court re-scheduled the trial for May 24, 2004, “to comply with unlawful detain-er.”

On May 24, 2004, Neil and co-counsel Larry Maples, also with the public defenders office, said they discovered a conflict with a witness for the State, Appellant’s former co-defendant, Ashley Cook. Cook had been represented by Neil at the preliminary stage of her trial. Maples said he had received confidential or privileged information from Cook, and Neil said she had received such information from others in their office. Neil stated she would waive the conflict, but the court said Appellant would have to do so. The court told Appellant he had two choices: To consult with independent counsel to determine whether he wanted to waive the conflict, or to continue the case to a later date with new counsel. Appellant said he wanted to talk with neutral counsel. Later, the assistant prosecuting attorney indicated to the court that Appellant had talked with “independent counsel” and waived the conflict.

Thereafter, Maples stated Cook also needed to waive the conflict, and he suggested the court reschedule so she could consult with independent counsel. Neil said that she was not aware of the conflict because she had only represented Cook at the arraignment. The court ruled there was good cause to continue the proceedings since the matter could not be tried in a timely manner due to the conflicts.

On June 24, 2004, the court set Appellant’s trial for August 17, 2004. Appellant, through counsel, William Fleischaker, entered guilty pleas on two counts of burglary in the second degree on August 10, 2004. The court sentenced Appellant to two consecutive four-year sentences. Appellant filed Notice of Appeal on August 19, 2004.

In his sole point relied on, Appellant contends:

The trial court erred in overruling Appellant’s motion to dismiss pursuant to the UMDDL and in accepting Appellant’s guilty pleas and sentencing him on August 10, 2004, because these rulings violated Appellant’s right to a speedy trial under Section 217.460, and his right to due process of law guaranteed by the 14th Amendment to the U.S. Const., and Art. I, § 10 of the Mo. Const., in that the trial court lost jurisdiction over Appellant’s case after May 24, 2004, because the trial court’s decision to extend the case beyond 180 days, based on its erroneous belief that Appellant could not waive a conflict of interest, without “timely holdfing] a hearing on the issue of the conflict,” did not constitute “good cause shown in open court.”

The right to be brought to trial within 180 days of a proper request is jurisdictional. Woody v. State, 904 S.W.2d 467, 469 (Mo.App.1995). A guilty plea by the defendant after the running of the statute does not waive a claim for lack of jurisdiction. O’Neal v. State, 925 S.W.2d 480, 483 (Mo.App.1996). However, the statute allows for additional, necessary or reasonable time for good cause shown in open court. State v. Allen, 954 S.W.2d 414, 418 (Mo.App.1997).

An attorney representing “both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests.” Ciarelli v. State, 441 S.W.2d 695, 697 (Mo.banc 1969). The court properly found counsel had a conflict of this nature.

Appellant claims the actions of the court are contrary to State ex rel Kinder v. McShane, 87 S.W.3d 256 (Mo.banc 2002). “[A] court may reject a waiver in the face of an actual conflict of interest[,]” yet it “must be allowed substantial latitude in refusing waivers of conflicts of interest ... in those rare cases where an actual conflict may be demonstrated before trial.” Id. at 262. “ ‘[S]uch a waiver ... does not necessarily resolve the matter, for the trial court has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel[.]’ ” Id. at 263, quoting U.S. v. Moscony, 927 F.2d 742, 749 (3d Cir.1991).

Appellant maintains a hearing is required on the issue. This is incorrect. What Kinder says is that “[t]he best way for the trial court to fulfill its role would be for the court to timely hold a hearing on the issue of the conflict.” Id. at 263 (emphasis added). This addresses “the need to accord an accused the right to select his or her own counsel, ... particularly where the potential conflict involves ... representation of a peripheral witness or a conflict that arose due to the conduct of someone other than defendant and his [or her] counsel.” Id. The goal of the hearing is to determine if defendant needs independent advice on this issue. Id. The court, in this case, gave Appellant the opportunity to consult with independent counsel as Appellant requested.

There was good cause to extend the trial beyond the 180-day requirement. The trial court did not lose jurisdiction. The judgment is affirmed.

PARRISH and RAHMEYER, JJ., concur.

      . 217.460. Trial to be held, when — failure, effect. — Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

      .. May 22, 2004 marked 180th day in this case and fell on a Saturday. The Missouri Supreme Court has determined that, with trials not customarily beginning on Saturdays and no jurors available on Sunday, it is reasonable to extend the 180-day limitation. State v. Malone, 694 S.W.2d 723, 725 (Mo.banc 1985).


text:
    Larry D. WALTON and Pamela L. Walton, Plaintiffs-Appellants, v. Ray GILTON and Barbara Gilton, Defendants-Respondents.
    No. 26837.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 21, 2005.

      Ralph L. Innes, Edmundson, Edmund-son & Innes, Poplar Bluff, MO, for Appellants.
    John F. Scott, Scott, Kidwell & Scott, Poplar Bluff, MO, for Respondents.
   JAMES K. PREWITT, Presiding Judge.

Larry D. Walton and Pamela L. Walton (“Appellants”), husband and wife, appeal from a judgment entered by the trial court on January 13, 2005, in favor of Ray Gilton and Barbara Gilton (“Respondents”), husband and wife. Appellants sought title to real property by adverse possession.

Appellate review in this non-jury case requires that the judgment be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or unless it erroneously declares or applies the law. Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App.1998). The trial court’s judgment is presumed valid, the burden is on the appellant to demonstrate its incorrectness, and due regard is given to the trial court to judge the credibility of witnesses. Id,

Appellants and Respondents own adjacent real property. Respondents have lived at the property known as 2147 County Road 425 since 1975. Appellants have lived at 2001 County Road 425 since acquiring the property from John and Pat Morgan in 1985. The Morgans purchased this property from Norma and Oscar Morgan in 1978.

In 1975, Respondent Ray Gilton and Oscar Morgan built a fence along what they considered the property line. No survey was done at the time. In 1992, Respondents had a survey conducted which determined that the record property line was south of that fence.

When Respondents built a new fence in April of 2003, it followed the surveyed line with the exception of an area reserved for Appellants’ driveway. Appellants filed their petition on October 15, 2003. Trial was held on August 27, 2004, and Findings of Fact, Conclusions of Law, and Judgment were entered on January 13, 2005. The trial court found Appellants were aware of the 1992 survey and “that the actual property line was not the old fence, but rather where the new fence is located.” The trial court also found Appellants used the portion of the disputed area with “the knowledge and acquiescence of [Respondents].” The court ordered that title of the disputed property be vested in Respondents. Appellants filed their notice of appeal on February 14, 2005.

“To prevail on a claim of adverse possession, Respondent must prove by a preponderance of the evidence ... that the possession was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years.” Luttrell v. Stokes, 77 S.W.3d 745, 750 (Mo.App.2002). “[L]ong and continued use creates a presumption that it was adverse and casts on the landowner the burden of showing that it was permissive.” Harmon v. Hamilton, 903 S.W.2d 610, 613 (Mo.App.1995).

“[L]ong acquiescence in a fence as a boundary line will warrant a presumption that it is the true line.” Kelley v. Prock, 825 S.W.2d 896, 900 (Mo.App.1992).

‘Acquiescence for a length of time is evidence of a parol agreement that the line so delineated is to be considered the boundary line[,][a]nd, where the line has been acquiesced in for a great number of years by all the parties interested, it is conclusive evidence of an agreement to that line.’

Id. (quoting Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343, 347 (1951)).

[Although a fence built by one with record title to the property where the fence is located does not necessarily establish a belief that the, fence is the property line, as there are many reasons for not placing a fence on the property line, ... fencing property to which one does not have record title is a strong indication of a claim to the land.

Crowley v. Whitesell, 702 S.W.2d 127, 128 (Mo.App.1985).

From 1975 to 1992, the initial fence appeared to have been treated as the property line. Even if we assume that Appellants acquired title to the disputed property, under the evidence they could have lost that title after the survey in 1992. There was sufficient evidence for the trial court to find that since the survey Respondents re-acquired title through adverse possession. The trial court found that Appellants were aware of the 1992 survey, (LF, 17) and “their actions and/or failure to act for a period of more than ten years bars them from making a claim to said property.”

Appellant was budding a shed on the post-1992 property line. Respondent Ray Gilton testified Appellants stopped construction and relocated the shed based on the survey; Appellant Larry Walton testified he stopped because he could not afford to finish the shed and later chose to build the structure closer to his house.

Respondent Ray Gilton testified he placed five steel posts “on every one of the survey markers.” He described these posts as “six-foot metal fence [posts].” Gilton testified that the posts remained until the new fence was built in April of 2003. He confirmed spraying purple spray paint on the trees along the property line in 1996 or 1997. Gilton also testified that Appellant Larry Walton approached him about buying this particular tract because the survey line came so close to his driveway. Gilton said he would not sell the property, but he agreed to let Appellants use the driveway.

Ray Gilton testified that between 1992 and 2003, he and his wife, Barbara, believed the property to the survey line belonged to them. He testified to cutting wood, hunting, and riding a four-wheel vehicle on the area. Appellant Larry Walton testified that during this time period, he maintained the area, and his daughter used this area as a basketball court.

Appellant Larry Walton testified he didn’t see the five steel posts that Respondent said he placed on the survey line, but stated that he saw the surveyor as well as the survey stakes. Walton also admitted that he walked the survey line in 1992, following the “narrow furring strips” which were tied with orange flags by the survey- or. Walton stated he still considered the old fence as the proper property line. Walton denied offering to purchase the piece of property from Respondents.

Appellant Pamela Walton testified to seeing the surveyor and walking the survey line. She did not recall seeing any steel posts marking the property line. Respondents’ witness, Chris Halcumb, testified that he and Appellant Larry Walton worked on the shed which Appellants began building in 1992. Halcumb testified that Larry Walton told him to move their building equipment to the site of the completed shed “because the property lines had changed and that wasn’t Larry’s property now and he had to move it down to where it was on his property for sure.” Halcumb admitted he could not remember the exact year this occurred; he only knew it was in the early 1990’s.

Respondent Barbara Gilton testified that Appellant Larry Walton offered to buy the disputed area shortly after the 1992 survey. Neighbor Mike Weatherford testified that he recalled a survey being completed and the results also affecting the line between his property and Appellants property, as the newly-determined property line crossed his driveway as well. Weatherford approached Appellant, discussed the property line shift, and asked if he could continue to use the property covering his driveway. Appellant agreed but later refused to sell the property.

The findings and conclusions entered by the trial court are supported by evidence. “ ‘The trial judge is in a better position than this court to determine credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record.’ ” Crowe v. Clairday, 935 S.W.2d 343, 346 (Mo.App.1996) (quoting In re the Marriage of Gardner, 890 S.W.2d 303, 304-05 (Mo.App.1994)). The trial court properly applied the ten-year limitations of 516.010, RSMo 2000. The petition was filed outside the time period afforded.

As Appellants were time-barred from bringing this claim, we need not consider their remaining points.

The judgment is affirmed.

PARRISH, J., and RAHMEYER, J., concur.

      . Section 516.010, RSMo 2000, states:
      No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grant- or or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold D. HEYN, Respondent-Appellant.
    No. 26633.
    Missouri Court of Appeals, Southern District, Division II.
    Oct. 27, 2005.

      Melinda K. Pendergraph, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen.; Evan J. Buehheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

Appellant Harold Heyn (“Defendant”) was charged by information with escaping from custody and committing violence against an employee of the Department of Corrections (“DOC”) in violation of § 575.200 and § 217.385, respectively. The ease was tried to the court. The judge dismissed the escape from custody charge, but he found Defendant guilty of committing violence against a DOC employee. The court sentenced Defendant to eight years imprisonment, which is within the authorized range of punishment for a class B felony. § 217.385.1; § 558.011(2). Execution of the sentence was suspended, and Defendant was placed on supervised probation for five years.

Defendant has appealed from the judgment of conviction. In his lone point relied on, he challenges the sufficiency of the evidence to prove that he knowingly committed violence against a DOC employee. We affirm.

I. Standard of Review

This Court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case. State v. Mann, 129 S.W.3d 462, 465 (Mo.App.2004). In a case tried without a jury, the trial court’s findings have the force and effect of a jury verdict. Rule 27.01(b); State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). Our review is limited to determining whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. The State may prove its case by presenting direct or circumstantial evidence connecting the defendant to each element of the crime. State v. Howell, 143 S.W.3d 747, 752 (Mo.App.2004).

In reviewing a challenge to the sufficiency of the evidence, we accept as true all evidence favorable to the State, including all reasonable inferences that can be drawn from the evidence. Crawford, 68 S.W.3d at 407-08. We disregard all evidence and inferences to the contrary. Id.; Howell, 143 S.W.3d at 752. The trial court determines the weight and credibility of the witnesses’ testimony. Crawford, 68 S.W.3d at 408. The judge “may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case.” Id. Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

II. Facts and Procedural History

In January 2003, Pamela Burnett (“Burnett”) was employed by the DOC as a probation and parole officer. She supervised people who were on probation and parole in Ozark, Douglas and Wright Counties. Defendant was one the parolees under Burnett’s supervision. As a condition of Defendant’s parole, he was required to refrain from consuming alcohol.

On the evening of January 10th, Burnett was on duty as a DOC parole officer when she received a telephone call concerning Defendant. The caller stated that Defendant was at a local residence, drinking alcohol and taking Vicodin simultaneously. The caller was concerned because Defendant might be jeopardizing his health and because Defendant had driven himself to the residence.

Since drinking alcohol was a violation of the conditions of Defendant’s parole, Burnett began an investigation. She and Douglas County Sheriffs Deputy Lonnie Huddleston (“Huddleston”) drove in a marked patrol car to the residence, which was located about 10 miles from the Sheriffs office. When they arrived, Huddle-ston walked to the front door of the residence while Burnett waited in the patrol car. Huddleston looked through a window and saw Defendant lying on the living room floor. There were beer cans all over the floor. Huddleston motioned for Burnett to join him at the front door. After repeated knocking, Defendant finally answered the door. Burnett observed that Defendant was staggering, slow to respond and smelled strongly of alcohol. Burnett asked Defendant if he had been drinking, and he admitted he had been. Burnett also asked Defendant what he had in his pants pocket. Defendant took out bottles of Vicodin, a narcotic drug that he had been prescribed. Defendant had been ingesting that drug with alcohol. Burnett told Defendant to get his coat and his shoes because he had to go to the Sheriffs office and take a blood-alcohol test. Once the test was completed, Burnett intended to obtain a warrant to arrest Defendant for violating his parole.

After Burnett finished questioning Defendant, he was taken into custody by Huddleston for violating the conditions of his parole. Defendant was not placed in handcuffs because his right arm was in a cast. Huddleston put Defendant in the front passenger seat of the patrol car and fastened his seat belt. Burnett got into the back seat of the patrol car and sat directly behind Defendant.

While Huddleston was driving to the Sheriffs office, Defendant removed his seatbelt. As Burnett was leaning over the front seat to re-buckle Defendant’s seat-belt, he opened the passenger door 12 to 18 inches. The patrol car was traveling approximately 50 m.p.h. at that time. Burnett grabbed the neck of Defendant’s jacket with both hands and started yelling at him to shut the door. Defendant started moving his shoulders to make Burnett let loose of him. While struggling, Defendant told Burnett to quit, to let go of him and to leave him alone. He also wanted to know why she always did this to him.

Huddleston immediately slowed the car down, and he attempted to help Burnett by grabbing onto Defendant’s jacket. Once the car stopped moving, however, Huddleston lost his grip on Defendant. Burnett maintained a two-handed grip on the collar of Defendant’s jacket while leaning over the front seat, but he was still able to exit the vehicle. At that point, Burnett let go with her right hand and opened the back door of the patrol car about half way. She then reached through the opening between her car door and the door jamb with her right hand and grabbed Defendant’s jacket. Burnett once again had both hands on Defendant’s jacket collar, and he was standing on his feet outside the car with his door open. Burnett’s right arm was outside the car and threaded between her door and the door jamb. Burnett told Defendant to get back in the car. He said, “No, let go of me.” That same exchange was repeated two or three times while Defendant squirmed and tried to shake himself loose. He then slammed Burnett’s car door. That act pinched her right forearm between the inner edge of the car’s door and its body and broke her hold on Defendant. After slamming Burnett’s door on her right arm, Defendant looked directly at her, said “Leave me alone” and escaped into the woods. Defendant’s car door remained open.

After Defendant ran away, Burnett received medical attention. No bones in her forearm were broken, but she did develop a “horrible bruise” that was approximately four inches long by one inch wide. The bruise remained visible for about two weeks after Burnett’s right forearm was slammed in the car door. Burnett testified that “any reasonable person would know that slamming a door on someone would hurt you.” Huddleston, who also saw Defendant slam the door on Burnett’s arm, testified that the door was shut “[h]ard enough I wouldn’t have wanted my arm in there....”

Defendant testified in his own behalf. Although Defendant did not recall slamming the car door on Burnett’s arm, he admitted that he was “in fact trying to get away from Pam Burnett” when she was injured. Defendant also conceded that he was repeatedly told by Burnett and Hud-dleston to stay in the car.

After hearing the evidence and taking the matter under advisement, the trial court entered an order in August 2003 dismissing the escape from custody charge, but finding Defendant guilty of knowingly committing violence against a DOC employee. In December 2003, the court held a sentencing hearing. During that hearing, the court elaborated on the basis for its decision that Defendant was guilty of knowingly committing violence against a DOC employee:

As far as the charge itself is concerned, the charge under 217.385,1, in doing the judgment found beyond a reasonable doubt that the defendant was a person under the supervision of Department of Corrections employee Pam Burnett and he injured her by slamming a car door on her arm and part of the reason for that specific finding was first that Ms. Burnett had, I believe her testimony showed that she had been supervising him for some time. When he was placed in the car and tried to get out of the car there was some yelling and scuffling around. At one point, my notes show that she put her hands on Mr. Heyn’s jacket and [he] tried to move away. He said, “Quit it and leave me alone” or something to that effect, attempted to open the door.... One of the things that convinced me in the testimony of Pam Burnett that Mr. Heyn knew who he was dealing with and what he was doing was she said that during the time he had shut the door on her arm, they made [eye] contact and he said, “Leave me alone” and then ran away and I was left with the undeniable conclusion that Mr. Heyn did know who he was dealing with and he did have a purpose for getting away ..., so I think that the prosecutor was well within his authority to charge under that statute and I feel confident in the finding of guilt beyond a reasonable doubt under that statute.

After the judgment of conviction and sentence was imposed, this appeal followed.

III. Discussion and Decision

In Defendant’s sole point on appeal, he contends the evidence was insufficient to prove beyond a reasonable doubt that he knowingly committed violence against a DOC employee. Defendant argues it was unreasonable for the trial court to infer that Defendant was aware that Burnett’s arm was between the door jamb and the back passenger door when he shut the door because it was dark, Burnett let go of him and he was not looking at her when he shut the door. Defendant also argues there was no evidence he knew Burnett was a DOC employee. We address each argument in turn.

Defendant was convicted of violating § 217.385.1, which states, in pertinent part, that “[n]o offender shall knowingly commit violence to an employee of the department....” Section 562.016.3 states:

A person “acts knowingly”, or with knowledge,
(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or
(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.

“Intent may be established by circumstantial evidence or may be inferred from surrounding facts.” State v. Durant, 156 S.W.3d 524, 527 (Mo.App.2005); State v. Theus, 967 S.W.2d 234, 239 (Mo.App.1998). In addition, a defendant’s mental state may be reasonably inferred from the act itself. Theus, 967 S.W.2d at 239. Viewed most favorably to the verdict and with due regard for the tidal court’s superior ability to assess the credibility of the testimony presented, we conclude the evidence was sufficient to support the trial court’s finding that Defendant knowingly committed violence against a DOC employee.

Defendant knew that Burnett was his parole officer because she had supervised him ever since he was released from the penitentiary. Defendant knew that one of the conditions of his parole was not to consume alcohol. When Defendant answered the door, Burnett was standing there with Huddleston. Burnett was solely in charge of investigating whether Defendant had violated the conditions of his parole. She obtained an admission from Defendant that he had been drinking. Burnett also recovered narcotic pills from Defendant’s person that he had been mixing with alcohol. Defendant was taken into custody for a suspected parole violation, and he knew Burnett was going to make him take a blood-alcohol test at the Sheriffs office. This test would have resulted in Defendant’s arrest, as well as providing evidence for use in a later parole revocation hearing. En route to the Sheriffs office, Defendant tried to escape by unfastening his seatbelt and opening the front passenger door of the patrol car. Burnett kept him from getting out of the car by grabbing his jacket collar with both hands and repeatedly yelling at him to stay in the car. Defendant struggled to get free and told Burnett to let go of him and leave him alone. He also wanted to know why she always did this to him. Once the car stopped, Defendant persisted in his efforts to escape from Burnett by getting out of the vehicle. In the process, Burnett let go of Defendant with her right hand, partially opened her door and then grabbed Defendant’s collar again with that hand. Burnett repeatedly told Defendant to get back in the car. He responded by saying, “No, let go of me[J” while squirming and trying to shake himself loose. Defendant then slammed Burnett’s car door on her right arm, which broke her grip on him. Defendant looked right at Burnett, said “Leave me alone” and escaped. Defendant’s own car door, on the other hand, was left open when he fled. Defendant also admitted that he was trying to escape from Burnett when she was injured, and Defendant heard her and Huddleston telling him to stay in the car. Burnett suffered a very serious and painful bruise when Defendant slammed the back door of the patrol car on her arm.

Based on the foregoing testimony, the trial court had a right to infer that Defendant knew: (1) Burnett’s right arm, which was gripping Defendant’s jacket collar, was between the car door and the door jamb; (2) slamming Burnett’s car door could break her grip, thereby allowing Defendant to escape; and (3) the act in slamming the car door on Burnett’s arm was practically certain to injure her. We believe these conclusions are amply supported by the direct and circumstantial evidence before the trial court. Defendant’s contrary argument is unavailing because it amounts to nothing more than a complaint that the trial court drew the wrong inferences from the evidence presented.

We also And no merit in Defendant’s second argument that the State failed to prove Defendant knew Burnett was a DOC employee. Burnett testified at trial that she worked for the DOC as a probation and parole officer. The DOC supervises and manages all correctional centers, as well as probation and parole in this state. See § 217.015.1 RSMo Cum.Supp. (2004). Defendant was in the custody of the DOC when he was in the penitentiary, and Burnett was assigned the responsibility of supervising Defendant when he was released on parole. They had an on-going offender/parole officer relationship that continued through January 10, 2003. On that date, Burnett was acting in her official capacity as Defendant’s parole officer while conducting an investigation of whether Defendant had violated the conditions of his parole. Defendant admits that he knew Burnett was his parole officer and that he was trying to escape from her when she was injured. The record supports the trial court’s “undeniable conclusion that Mr. Heyn did know who he was dealing with.”

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

SHRUM, P.J., and BARNEY, J„ Concur.

      . All references to statutes are to RSMo (2000).

      . All references to rules are to the Missouri Court Rules (2005).

      . Defendant had been sent to prison after being convicted of a felony offense for driving while intoxicated. Burnett became Defendant’s parole officer when he was released from the penitentiary.

      . Defendant was caught about one week later.

      . Huddleston testified that he asked Defendant no questions at the scene.

      . Although this statute was amended in 2001, the changes have no bearing on the issues presented in this appeal.


author: MARY K. HOFF, Presiding Judge.

text:
    In the Matter of the CARE AND TREATMENT OF Gerald PERKINS.
    No. ED 85247.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 1, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   MARY K. HOFF, Presiding Judge.

Gerald Perkins (Offender) appeals the judgment of the Circuit Court of Franklin County, probate division (probate division), probate court’s judgment and order committing Offender to secure confinement in the custody of the Department of Mental Health (DMH) as a sexually violent predator, pursuant to Section 632.480 et seq., RSMo 2004. We affirm.

In his sole point on appeal, Offender claims the trial court abused its discretion in denying his motion to dismiss for lack of jurisdiction the State’s petition (petition) to commit Offender to DMH as a sexually violent predator. Offender argues the probate division lacked jurisdiction to proceed to trial on the petition because Offender was already committed to DMH’s custody at the time the petition was filed.

We review a trial court’s refusal to dismiss on jurisdictional grounds for an abuse of discretion. Wibberg v. State 957 S.W.2d 504, 506 (Mo.App. W.D.1997). We find an abuse of discretion when a trial court’s ruling clearly violates the logic of the circumstances or is arbitrary or unreasonable. Id.

Section 632.480 et seq. applies to the civil commitment of sexually violent predators (SVP). Section 632.480(5) defines a SVPas:

any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense....

Section 632.483 requires an agency, such as DMH, to notify the attorney general in writing when it appears that an individual in the agency’s custody may meet the SVP criteria. Section 632.483.1. After the attorney general is so notified and a prosecutor’s review committee has determined that the individual meets the SVP definition, the attorney general may file a petition in the probate division of the circuit court in which the person was convicted or committed alleging that the person is a SVP. Section 632.486.

Offender does not dispute that he was found not guilty by reason of mental disease or defect, pursuant to Section 552.030, RSMo, of the sexually violent offense of sodomy in the Circuit Court of Franklin County, Missouri, or that Offender is currently confined in the custody of DMH. Offender’s sole argument challenges the jurisdiction of the probate division to entertain the petition.

Two districts of our court have considered arguments similar to Offender’s and rejected them. In Barlow v. State, 114 S.W.3d 328 (Mo.App. W.D.2003), the Western District addressed a situation where the probate division dismissed a SVP petition under the doctrine of “concurrent jurisdiction.” In Barlow, the offender had been committed to DMH in 1973 by the Circuit Court of Jackson County under the Criminal Sexual Psychopath (CSP) Act. Id. at 330. In 2000, the attorney general filed a petition in the probate division the Circuit Court of Jackson County seeking Barlow’s commitment under the SVP Act. Id. The probate division dismissed the petition for lack of jurisdiction under the doctrine of “concurrent jurisdiction” because Barlow was still under the jurisdiction of the Circuit Court of Jackson County under the CSP Act. Id. at 330-31. However, the Western District disagreed with the probate division’s determination, recognizing that jurisdiction over a person could be had in many courts as long as the courts were not attempting to adjudicate the same issue in controversy. Id. at 334. The Western District, noting that Section 632.486 prescribed venue in the probate division of the circuit court that committed the offender, concluded that venue was proper in the probate division of the Circuit Court of Jackson County. Id. at 333. The Western District vacated the probate division’s dismissal judgment and remanded the case. Id. at 335.

The Southern District also has addressed the concurrent jurisdiction challenge to a probate division’s jurisdiction to commit an offender to the custody of DMH as an SVP. In the Matter of Lieurance, 130 S.W.3d 693 (MoApp. S.D.2004). In Lieurance, the offender likewise argued that the probate division lacked jurisdiction to commit him as an SVP because he remained under the jurisdiction of the circuit court that originally committed him as a CSP in 1979. Id. at 695, 697. The Southern District followed the holding of Barlow, concluding the SVP statute “unambiguously” conferred jurisdiction over Lieurance to the probate division of the circuit court “notwithstanding the continuing jurisdiction of the court that committed him as a CSP[.]” Id. at 699.

We agree with the holdings of Barlow and Lieurance. Section 632.486 clearly vests jurisdiction over SVP petitions in the probate division of the circuit court that originally committed such individuals who were found not guilty of sexually violent offenses by reason of mental disease or defect, pursuant to section 552.030. Thus, the SVP statute conferred jurisdiction over Offender to the probate division. We find no abuse of discretion. Point denied.

The judgment is affirmed.

CLIFFORD H. AHRENS, Judge and PATRICIA L. COHEN, Judge, Concur.

      . All subsequent statutory references are to RSMo 2004.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Charles Steven DAVENPORT, Defendant/Appellant.
    No. ED 85659.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, Charles Steven Davenport, appeals from the judgment entered on a jury verdict finding him guilty of robbery in the first degree, in violation of section 569.020 RSMo (2000), and armed criminal action, in violation of section 571.015 RSMo (2000). The trial court found defendant to be a prior offender and sentenced him to fifteen years imprisonment on the robbery count and fifteen years imprisonment on the armed criminal action count, to be served concurrently.

No error of law appears and no jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

We affirm thei judgment pursuant to Rule 30.25(b).


text:
    William F. SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85531.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.

      Lisa M. Stroup, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

William F. Smith (“Movant”) appeals from the motion court’s judgment denying his Rule 24.035 post-conviction motion after an evidentiary hearing. We affirm. We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    James HOLMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85584.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    Lisa M. Stroup, Public Defender s Office, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER, III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, James Holman (“Movant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Following a jury trial, Movant was convicted of domestic assault in the first degree, section 565.072, RSMo 2000, armed criminal action, section 571.015, and unlawful use of a weapon, section 571.030. Subsequently, Movant was sentenced to a total of twenty years imprisonment. We previously affirmed the convictions. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

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


text:
    Kenneth ROBINSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85409.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    N. Scott Rosenblum, Rosenblum, Schwartz, Rogers & Glass, P.C., Clayton, MO, for appellant.
    Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Kenneth Robinson, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find the motion court’s judgment is not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. However, the parties have been furnished with a memorandum for their information, setting forth the reasons for this order. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Charles GLASPERIL, Appellant.
    No. ED 85418.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Charles Glasperil (“Defendant”) appeals from his conviction for robbery in the first degree and armed criminal action. The trial court sentenced him to imprisonment of twenty-five years for robbery in the first degree and five years for armed criminal action. The sentences were ordered to be served concurrently.

Defendant raises two points on appeal. First, Defendant contends that the trial court plainly erred and abused its discretion by permitting the State to charge Defendant, a juvenile at the time of the offense, with first degree robbery and armed criminal action, even though the juvenile petition charged Defendant with first degree robbery and second degree assault. Second, Defendant contends that the trial court erred and abused its discretion by overruling Defendant’s trial objection regarding Barbara Hathorne’s testimony that Defendant sold her crack because it was irrelevant and its prejudicial effect outweighed its probative value.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. William GAUCH, Appellant.
    No. ED 85417.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    William J. Swift, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

William W. Gauch (Defendant) appeals from the judgment upon his convictions by a jury of possession of methamphetamine, Section 195.202, RSMo 2000, and attempt to manufacture methamphetamine, Section 565.202, RSMo 2000, for which Defendant was sentenced, as a prior and persistent offender, to two concurrent sentences of twelve years’ imprisonment.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Gretchen PETERSON, Respondent/Cross-Appellant, v. Warren PETERSON, Appellant/Cross-Respondent.
    No. ED 84476.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    Deborah Benoit, St. Louis, MO, for appellant.
    Jack C. Hauser, Jr., Clayton, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Warren Peterson appeals the judgment dissolving his marriage to Gretchen Peterson, and she cross-appeals. We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence, and we find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reason for our decision. The judgment is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Tyler BOOTH, Defendant/Appellant.
    No. ED 85377.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The defendant, Tyler Booth, appeals his conviction for felony possession of a controlled substance, in violation of section 195.202 RSMo. (2000), and for misdemeanor trespassing at the Cochran Gardens public housing development, in violation of section 569.140. On appeal the defendant alleges an improper strike of one African-American venireperson in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Finding no error, we affirm.

We have reviewed the parties’ briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo.2000.


author: KENNETH M. ROMINES, Judge.

text:
    MOBIUS MANAGEMENT SYSTEMS, INC., Appellant, v. WEST PHYSICIAN SEARCH, L.L.C., Respondent.
    No. ED 85723.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.

      Russell M. Zelei, St. Peters, MO, Stephen D. Palley, Julia C. Walker, Sandberg, Phoenix & von Gontard, P.C., St. Louis, MO, for appellant.
    West Physician Search, LLC, St. Louis, MO, pro se.
   KENNETH M. ROMINES, Judge.

Mobius Management Systems, Inc. (Mo-bius) appeals from the Associate Circuit Court’s Judgment sustaining West Physician Search, LLC’s (West’s) Motion to Dismiss Mobius’s Motion to Pierce the Corporate Veil and for Creditor’s Bill. We reverse.

The source of this matter is a commercial real estate sublease between Mobius and West, entered into on 14 December 2001. This sublease was signed by David West (David), West’s managing member. Pursuant to this sublease, West was obligated to pay Mobius monthly rent; late payments were subject to an administrative charge at an annual interest rate of five percent of the amount due, accruing until rent is paid in full. West defaulted under the sublease when it failed to pay rent for September 2002 through December 2002.

On 16 December 2002, Mobius filed its Verified Petition for Rent and Possession Pursuant to Section 535 RSMo (2000). In this petition, Mobius asked the Circuit Court to: (1) grant Mobius immediate possession of the subleased premises; (2) award Mobius $17,709.43 for past rent and administrative charges; (3) award Mobius $115,085.88 for rent owing on the remainder of the sublease; and (4) award Mobius the costs and expenses of the rent and possession action, including attorney’s fees and pre-judgment and post-judgment interest at a rate of nine percent per annum.

On 10 July 2003, a Consent Judgment was entered against West, awarding $175,000 to Mobius. This Judgment was signed by David. Because Mobius was unsuccessful in its attempts to collect this judgment from West, it filed a Motion to Pierce the Corporate Veil and for a Creditor’s Bill on 20 September 2004, seeking to recover personally from David. In its motion, Mobius alleged that David co-mingled personal funds with West and failed to maintain books or records for West; West was undercapitalized; and West failed to follow corporate formalities. Accordingly, Mobius claimed that David had complete control over West and used West as a sham to avoid contractual obligations.

West filed a Motion to Dismiss Mobius’s Motion to Pierce the Corporate Veil and for a Creditor’s Bill, which the Circuit Court sustained on 9 December 2004. The Court’s Order did not state any reasons for its ruling. This appeal followed.

Because the Circuit Court did not list the reasons for its ruling, this Court must presume the dismissal rested on one or more grounds specified in West’s motion. Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo.App. E.D.1996). The appellate court must affirm the trial court’s dismissal if the dismissal can be sustained on any ground supported by the motion to dismiss. Id.

In its first point on appeal, Mobius argues that the Circuit Court erred when it dismissed Mobius’s Motion to Pierce the Corporate Veil. Mobius claims the Court should have enforced the $175,000 Consent Judgment against David as an individual. According to Mobius, the corporate veil should have been pierced, because West operated while undercapitalized, violated its statutory duties, manipulated corporate assets, stripped itself of its corporate assets, and co-mingled its funds with David’s personal funds. West did not file a brief on appeal, and therefore made no arguments in response. We agree with Mobius that its Motion to Pierce the Corporate Veil should not have been dismissed.

In some circumstances, a court may disregard a corporate entity and hold its owners personally liable for corporate debts. 66, Inc. v. Crestwood Commons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo. banc 1999). In order to “pierce the corporate veil,” the plaintiff must first show control — not mere majority or stock control, but complete domination, not only of finances, but of policy and business practice with respect to the transaction, such that the corporate entity had no separate mind, will or existence of its own. Id. In other words, the plaintiff must show that the corporation is the alter ego of the defendant. Id. at 41. When a corporation is so dominated by a person as to be a mere instrument of that person, and indistinct from the person controlling it, the court will disregard the corporate form if its retention would result in injustice. Saidawi v. Giovanni’s Little Place, Inc., 987 S.W.2d 501, 504-05 (MoApp. E.D.1999).

David’s deposition testimony indicates that David owned 80 percent of the company. David testified that he often paid West employees with his own personal funds. David also testified that the other two members of West “ran the company,” by making strategic decisions, holding training sessions, and hiring and firing. However, these two individuals left West in July 2002 — one year before the Consent Judgment was entered. David admitted that there was no corporate resolution authorizing the Consent Judgment — in fact, David alone consented to the Judgment-just as he alone signed the sublease. Mo-bius has shown that David had “control” over West, such that David and West operated with one mind. The “control” requirement for piercing the corporate veil is therefore satisfied.

Second, the plaintiff must show a breach of duty — that this control was used by the corporation to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or to commit a dishonest and unjust act in contravention of the plaintiffs legal rights. 66, Inc., 998 S.W.2d at 40. It is not necessary, however, to show actual fraud. Id. at 41. In some situations, the corporate veil may be pierced when a corporation is undercapitalized, or when its assets are stripped to avoid creditors. Id.; Sunbelt Envtl. Services, Inc. v. Rieder’s Jiffy Mkt., Inc., 138 S.W.3d 130, 135 (Mo.App. S.D.2004). Inadequate capitalization is circumstantial evidence of an improper purpose or reckless disregard for the rights of others. 66, Inc., 998 S.W.2d at 41.

In his deposition, David testified that West did not maintain accounts receivable or accounts payable ledgers. He also stated that he kept track of money coming in and going out of the company “poorly.” David also said that West has not had a bank account since August 2002 — almost one year before he signed the $175,000 Consent Judgment. David testified that West never had any cash, but ran a deficit. David admitted that, when he agreed to and signed the Consent Judgment, he knew West was unable to pay it.

Similarly, in 66, Inc., the Court found that the corporation-defendant, Crestwood Commons Redevelopment Corporation (Crestwood), was an undercapitalized “shell corporation” used to avoid its debts. Id. The plaintiff in 66, Inc., like Mobius, was unable to collect on a judgment against Crestwood. Id. at 37. Crestwood had no capital or plans to acquire capital. Id. at 41. The Court concluded that Crestwood had a positive, legal duty to pay the judgment, and circumvented this duty by operating a shell corporation. Id. The Court held that this conduct evidenced a wrongful purpose and justified piercing the corporate veil. Id. at 42. Likewise, David created West, never acquired sufficient capital to operate West, entered a sublease without sufficient capital to fulfill its obligations under that sublease, and signed a $175,000 consent Judgment one year after West had been abandoned. David circumvented West’s legal obligations by operating an undercapitalized shell corporation— and therefore used his control over West to avoid its obligations to Mobius. The second requirement for piercing the corporate veil is satisfied.

Finally, the plaintiff must show that.the control and breach of duty proximately caused the injury or unjust loss. Id. at 40. Clearly, Mobius has suffered an injury — an unpaid $175,000 Judgment — and this injury was proximately caused by West’s conduct. The only reason Mobius has not been paid the money it is legally owed is because West lacks the necessary capital to satisfy this judgment.

Therefore, all three elements required to pierce the corporate veil — control, breach of duty, and proximate cause — are present. The judgment is reversed and remanded for trial.

GARY M. GAERTNER, SR., P.J., and GEORGE W. DRAPER III, J., concur.


text:
    Susie BLAKE, Plaintiff/Appellant, v. DIVISION OF EMPLOYMENT SECURITY and Ladelle Investment Company, Inc., Defendants/Respondents.
    No. ED 85774.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    Cardina F. Johnson, St. Louis, MO, for appellant.

      Marilyn Gail Green, Jefferson City, MO, for Division of Employment Security.
    Jonathan Dewitt McKee, St. Louis, MO, for Ladelle Investment, Inc.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Susie Blake (Appellant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) disqualifying Appellant for 10 weeks from unemployment benefits because she was discharged for misconduct connected with work. We have reviewed the briefs of the parties and the record on appeal and conclude that the Commission’s decision is supported by competent and substantial evidence and is authorized by law. Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 737 (Mo.App. E.D.2001). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Respondent, v. Gregory WILSON, Appellant.
    No. ED 85392.
    Missouri Court of Appeals, Eastern District, Division Pour.
    Nov. 1, 2005.
    Gregory L. Wilson, Foristell, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Gregory Wilson (Defendant) appeals from the judgment upon his conviction by a jury for assault of a law enforcement office in the first degree, Section 565.081 RSMo 2000, and driving while revoked, Section 302.321. Defendant received concurrent sentences of ten years’ imprisonment on the assault charge and forty-eight hours in county jail on the driving while revoked charge. On appeal, Defendant argues the trial court (1) abused its discretion in allowing evidence and argument regarding an incident that occurred five days prior in which Defendant threatened and cursed at a police officer who informed Defendant his license was suspended, (2) plainly erred in prohibiting Defendant from questioning the jury panel during voir dire about self-defense, (3) plainly erred in giving the jury Instruction No. 5, the verdict director for assault of a law enforcement officer in the first degree, and (4) plainly erred in precluding Defendant’s testimony that the police beat him “even more after his arrest.” We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).

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


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    Joseph MULLER, Respondent, v. ST. LOUIS HOUSING AUTHORITY, Appellant, and Treasurer of Missouri, Custodian of the Second Injury Fund, Respondent.
    No. ED 85453.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.

      Steven J. McMahon, St. Louis, MO, for appellant.
    Leonard P. Cervantes, Eileen Ruppe Krispin, St. Louis, MO, for respondents.
   LAWRENCE E. MOONEY, Presiding Judge.

In this workers’ compensation case, St. Louis Housing Authority (SLHA) appeals from a partial final award of the Labor and Industrial Relations Commission. Because there is not a final, appealable award, we dismiss for lack of jurisdiction.

Factual Background,

The claimant, Joseph Muller, was employed by Evan Thibault Garden Design, Inc. Thibault was hired by SLHA to perform landscape work at seventeen housing complexes owned by SLHA. While working at one of these sites, the claimant lifted a wheelbarrow full of debris to empty it into a dumpster and experienced what he described as a “bolt of electricity,” which shot down the back of his neck and into his arms and legs. The claimant also felt numbness and a vibration. The claimant experienced these same sensations on several more occasions when he lifted wheelbarrows into the dumpster. The claimant then stopped lifting, attempted light-duty work for a short time, and sought medical attention. An MRI showed a large herniated cervical disc with severe spinal-cord compression. The claimant later underwent three cervical-spine surgeries. The claimant never returned to work, is unable to use his upper extremities for work, and has disabling pain for which injections are currently prescribed for relief.

The claimant filed his workers’ compensation claim against both Thibault and SLHA. Thibault did not carry workers’ compensation insurance and was later discharged in bankruptcy. The claim against Thibault was dismissed, and the claimant proceeded on his claim against SLHA, asserting that he was the statutory employee of SLHA. The Administrative Law Judge found SLHA to be a statutory employer under Section 287.040.1 RSMo.1994 and liable for benefits to the claimant. The ALJ found that the claimant sustained permanent total disability as a result of the reported neck injury, and awarded him the following: (1) unpaid medical expenses of $187,562.00; (2) out-of-pocket prescription drug expenses in the amount of $2,110.25; (3) 188.57 weeks of temporary total disability in the amount of $97,926.28; and (4) permanent and total disability beginning May 3, 2001, and continuing for the remainder of the claimant’s life. SLHA appealed to the Commission.

On October 19, 2004, the Commission, pursuant to sections 286.090 and 287.510, entered a partial final award affirming the award and decision of the ALJ as to all issues except attorney’s fees and past medical expenses. The Commission modified the ALJ’s allowance of attorney’s fees. The Commission, however, did not decide the issue of past medical expenses and left the issue open for future determination. By separate order, the Commission remanded the issue of past medical expenses to the Division of Workers’ Compensation to schedule a hearing on various issues related to the past medical expenses.

Although the issue of past medical expenses had been remanded to the Division, SLHA filed an appeal of the Commission’s October 19, 2004 partial final award with this Court. SLHA contends the Commission erred in finding SLHA to be a statutory employer, and in finding that the claimant suffered an injury that arose out of and in the course of his employment.

Discussion

This Court has a duty to determine sua sponte whether it has jurisdiction. Lane v. Lensmeyer, 158 S.W.3d 218, 222 (Mo. banc 2005). Without jurisdiction, the appeal must be dismissed. Id. This Court has no appellate jurisdiction in a workers’ compensation case except as expressly conferred by statute. Schwarzen v. Harrah’s St. Louis Riverport, 72 S.W.3d 223, 224 (Mo.App. E.D.2002). Section 287.495 authorizes an appeal from the “final award of the commission” to the appellate court. Id. A “final award” is one which disposes of the entire controversy between the parties. Id. An award is final only when the Commission arrives at a terminal, complete resolution of the case before it. Lewis v. Container Port Group, 872 S.W.2d 134, 136 (Mo.App. E.D.1994). Only a final award is appealable. Schwarzen, 72 S.W.3d at 224.

The Commission’s award in this case was designated as a partial final award and entered, in part, pursuant to section 287.510. No appeal lies from a temporary or partial award made pursuant to section 287.510. Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo.App. E.D.1996). There are, however, two situations where reviewing courts have looked behind an award’s designation as temporary or partial to determine if it is in fact a final award for the purposes of appeal. Id. at 398. First, this Court may review an award designated as temporary or partial if it is not entered pursuant to section 287.510 but is an award of permanent total disability pursuant to section 287.200.2. Id. citing Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 343 (Mo. banc 1991) and Smith v. Ozark Lead Co., 741 S.W.2d 802, 808-10 (Mo.App. S.D.1987)(overruled on other grounds in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). Second, this Court may review the issue of the employer’s liability where an employer claims it is not liable for paying any compensation. Korte, 922 S.W.2d at 398 citing Woodburn v. May Distributing Co., 815 S.W.2d 477 (Mo.App. S.D.1991)(overruled on other grounds in Hampton, 121 S.W.3d at 223).

This case does not fall within either of these two judicially-crafted exceptions to the final-award requirement. The claimant contends the Commission’s award is a final award for purposes of appeal under the first exception because the ALJ made a finding of permanent total disability pursuant to section 287.200. However, while the Commission affirmed the award of permanent total disability, it left the issue of past medical expenses open for future determination. That issue is still pending. In those cases that first crafted and applied this exception to the final-award requirement, the Commission’s award had resolved all issues in the case and disposed of the entire controversy between the parties as of the date of the award, save for future medical aid, an issue that, by its very nature, was not then capable of being adjudicated. See Smith, 741 S.W.2d at 810; Abrams, 819 S.W.2d at 339. Such is not the case here. The parties have not directed us to a case, nor has our independent research revealed one, where the appellate court found an award of permanent total disability final for purposes of appeal even though designated as temporary or partial, where the Commission had left open an issue such as past medical expenses, which was then capable of determination.

Similarly, despite the parties’ contentions to the contrary, this case also does not come within the second judicially-crafted exception to the final-award requirement. Under the second exception, limited review on the issue of the employer’s liability is permissible, even though the award is designated as temporary or partial. Woodburn, 815 S.W.2d at 481. This second exception derives from the procedure set forth in 8 C.S.R. 20-3.040. See Schwarzen, 72 S.W.3d at 225. This regulation provides for prompt review by the Commission, on issues of liability, from temporary or partial orders of administrative law judges. The regulation allows a party to file an application for review with the Commission after the issuance of a temporary or partial award by the ALJ, upon the ground that the party is not liable for payment of any compensation. 8 C.S.R. 20-3.040. Accordingly, the Southern District concluded it had jurisdiction to review a decision of the Commission that was based on an appeal permitted by this state regulation, where an employer is contesting liability only. See Woodburn, 815 S.W.2d at 480-1.

The facts of the instant case are unlike that in the Woodbum case and its progeny. This is not a case where the Commission was reviewing a temporary or partial award issued by the ALJ, under the appeal process provided for by the state regulation. Rather, the award in this case became a partial award by action of the Commission when it affirmed a portion of the ALJ’s award, but left the issue of past medical expenses open for future determination and remanded the issue to the Division for further hearings. Again, the parties have not directed us to a case where the appellate court has found a partial award final for purposes of appeal under these circumstances.

Indeed, to allow an appeal in the instant case would subvert the legislature’s requirement of finality as a necessary precondition to the right to appeal. Again, a “final award” is one which disposes of the entire controversy between the parties, and an award is final only when the Commission arrives at a terminal, complete resolution of the case before it. Only a final award is appealable. If we were to allow an appeal here, where the Commission has specifically reserved the issue of past medical expenses for further adjudication, we would encourage piecemeal litigation of workers’ compensation awards and waste judicial resources. For example, in the instant case, if we were to affirm the partial final award, the adjudication of past medical expenses would still be subject to review of the Commission and an appeal to this Court. Further, because the question of future medical expenses is not presently capable of being adjudicated, there may yet be a third review by the Commission and a third appeal to this Court. This is exactly the type of piecemeal litigation and waste of judicial resources that the finality rule seeks to avoid. In sum, there is no reason for this Court to exercise its appellate jurisdiction when the Commission has not exhausted its jurisdiction by resolving all issues presently capable of determination.

To conclude, the Commission issued a partial final award, leaving open the issue of past medical expenses for future determination. Therefore, the Commission did not come to a complete, final resolution of all issues before it, and the award did not dispose of the entire controversy between the parties. The Commission’s award, accordingly, is not a final award. Further, this case does not fit within either of the two judicially-crafted exceptions to the final-award requirement, which we decline to expand. Thus, this Court is without jurisdiction to hear this appeal.

The appeal is dismissed.

MARY K. HOFF and GEORGE W. DRAPER, III, JJ., concur.

      . While this appeal was pending, the Division, upon remand, held a hearing on the unpaid medical expenses, received evidence, and then forwarded a transcript to the Commission. The Commission issued an order concluding that it had no jurisdiction to consider the material presented in the remand hearing because it no longer had jurisdiction to consider the case, as the case was on appeal to this Court. This order, while not directly at issue in this appeal, was erroneous because, as we here hold, the partial final award of October 19, 2004 was not properly subject to appeal. Thus, the Commission retained jurisdiction over this workers’ compensation claim and the issue of past medical expenses.

      . SLHA's Motion to Strike and For Sanctions is denied.


text:
    Tommy E. REED, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85698.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Tommy E. Reed (“Movant”) appeals from the motion court’s judgment denying his Rule 24.035 post-conviction motion without an evidentiary hearing. We affirm. We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    McKELVEY PROPERTIES, INC., Appellant, v. COLONIAL HOMES, INC., Respondent.
    No. ED 85467.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    Gerald M. Dunne, Clayton, MO, for appellant.
    Charles F. Dufour, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

McKelvey Properties, Inc (“McKelvey”) appeals from a judgment of the Circuit Court of St. Charles County for Colonial Homes, Inc. (“Colonial”) and against McKelvey on its petition for breach of contract. McKelvey argues that the trial court erred in its finding that Colonial did not breach an exclusive procurement agreement that had been extended to McKelvey through Colonial’s agent, Tom Hutfless (“Hutfless”). Additionally, McKelvey claims that the trial court erred in failing to apply a presumption under Missouri law that testimony from Hutfless would have been unfavorable to Colonial, who failed to call Hutfless. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


author: GARY M. GAERTNER, SR, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Glen BLAIR, Appellant.
    No. ED 84888.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    N. Scott Rosenblum, Mark W. Lyons, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, SR, Presiding Judge.

Appellant, Glen Blair (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis, following a jury trial, finding him guilty of four counts of statutory sodomy in the first degree, section 566.062, RSMo 2000, one count of child molestation in the first degree, section 566.067, and one count of sexual misconduct involving a child, section 566.083. Defendant was sentenced as a persistent offender to twenty years imprisonment for each count of statutory sodomy in the first degree, ten years imprisonment for child molestation in the first degree, and three years imprisonment for sexual misconduct involving a child, all sentences to be served in the Missouri Department of Corrections and to run concurrently. We affirm.

In August of 2002, Sarah Gant (“Ms. Gant”) and her two children, X.M. and Q.G., moved into Defendant’s residence. On several occasions, between November 1. 2002 and January 31, 2003, Defendant engaged in inappropriate sexual activities with X.M. At the time of Defendant’s trial, X.M. was thirteen years old.

X.M. did not immediately report any of the incidents because Defendant threatened X.M. that if she did, he would put her and her family “out on the streets.” However, X.M. eventually told her grandmother and mother about the incidents and X.M.’s mother reported them to the police.

On March 4, 2003, X.M. was interviewed by Ms. Luzette Wood (“Ms. Wood”) at the Children’s Advocacy Center (“the CAC”) in St. Louis. In a videotaped interview (“the videotape”), X.M. reported that Defendant had engaged in inappropriate sexual activities with her. The videotape was later played for the jury and is the subject of this appeal.

On April 1, 2003, Defendant was charged with five counts of statutory sodomy in the first degree, one count of child molestation in the first degree, one count of sexual misconduct in the first degree, and one count of sexual misconduct involving a child. On April 1, 2004, the State of Missouri (“the State”) filed its “Notice of Intention to Use Statements Under 491.075.3 RSMo.” In its notice, the State informed Defendant of its intention to offer into evidence out-of-court statements made by X.M. to a class of persons including Ms. Wood from the CAC, and that such evidence would include, inter alia, videotapes.

A jury trial took place from April 26 to April 30, 2004. On April 27, 2004, a hearing took place outside the presence of the jury on the admissibility of X.M.’s out-of-court statements to Ms. Wood on the videotape. At the conclusion of the hearing, the court found there was a sufficient showing of reliability to render the videotape admissible.

Defendant made an oral motion for judgment of acquittal at the close of the State’s case and an oral motion for judgment of acquittal at the close of the entire case, both of which the trial court denied. On April 30, 2004, the jury found Defendant guilty of four counts of statutory sodomy in the first degree, one count of child molestation in the first degree, and one count of sexual misconduct involving a child. On May 21, 2004, Defendant filed a motion for directed verdict of acquittal, or, in the alternative, for a new trial. On June 17, 2004, Defendant was sentenced as a persistent offender to twenty years imprisonment for each count of statutory sodomy in the first degree, ten years imprisonment for child molestation in the first degree, and three years imprisonment for sexual misconduct involving a child, all sentences to be served in the Missouri Department of Corrections and to run concurrently. This appeal followed.

In his sole point on appeal, Defendant asserts that his Sixth Amendment right to confront witnesses was violated when the videotape was admitted through the hearsay exception of section 491.075.3.

We note initially that we have jurisdiction in this case because, as discussed below, Defendant’s challenge to the constitutionality of section 491.075.3 was not preserved for appellate review. See State v. Bowens, 964 S.W.2d 232, 236 (Mo.App. E.D.1998).

In order to preserve a constitutional issue for appellate review, a party must (1) raise the issue at the first available opportunity, (2) note the constitutional provision claimed to be violated by specifically referencing the article and section of the constitution or by quoting the constitutional provision itself, (3) state the facts that constitute the constitutional violation, and (4) preserve the constitutional issue throughout the proceeding. State v. Williams, 904 S.W.2d 103, 105 (Mo.App. E.D.1995) quoting State v. Hillis, 748 S.W.2d 694, 697 (Mo.App. E.D.1988). When a constitutional issue is raised for the first time in a motion for new trial, it is not preserved for review. State v. Belcher, 805 S.W.2d 245, 251 (Mo.App. S.D.1991).

In this case, the earliest opportunity Defendant could have raised his constitutional challenge to section 491.075.3 would have been on April 1, 2004, after the State filed its “Notice of Intention to Use Statements Under 491.075.3 RSMo.” The record reflects that Defendant not only failed to raise his constitutional challenge at that time, but also failed to raise it during the pretrial hearing on the admissibility of the videotape. In addition, Defendant failed to raise the constitutional challenge when the State moved to admit the videotape at trial. Because Defendant raised the constitutionality of section 491.075.3 for the first time in his motion for new trial, it is not preserved for our review.

In similar circumstances, where the appellant raised the constitutionality of a statute for the first time in a motion for new trial, we found that because the issue had not been preserved for review, we could neither consider the issue nor transfer the appeal to the Supreme Court. See State v. Belcher, 805 S.W.2d at 251. Therefore, we also decline to consider the constitutionality of the statute in this case. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER III, J. and KENNETH ROMINES, J., concur.

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

      . We deny Defendant's motion for transfer to the supreme court taken with the case.

      . While the State's notice reflects a file stamp date of "March 32, 2004,” an impossible date, and the docket sheet does not reflect that this document was filed with the court, the certificate of service indicates the document was filed and mailed to opposing counsel on April 1, 2004.

      .Nothing in the record indicates that the trial court ever ruled upon this motion.


text:
    In the Interest of A.M.B., A Minor Child.
    No. ED 85902.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    John Richard Bird, St. Louis, MO, William B. Beedie, Guardian Ad Litem, Farm-ington, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Heidi C. Doerhoff, Asst. Atty. Gen., Jefferson City, MO, Rebecca Shelton, Farming-ton, MO, for respondent.

      Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

R.A.B. (Father) appeals from the judgment terminating his parental rights to his minor child, A.M.B. On appeal, Father argues there was not clear, cogent, and convincing evidence to support the trial court’s findings under Sections 211.447.4(2), 211.447.4(3), and 211.447.6, RSMo 2000. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    In the Interest of C J.W., a minor. Juvenile Officer of Lincoln County, MO, Petitioner/Respondent, v. J.J.Z., Respondent/Appellant.
    No. ED 86084.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    G. John Richards, Lincoln Co. Prosecuting Attorney, Troy, MO, for respondent.
    John T. Bruere, Troy, MO, for appellant.
    William W. Cheeseman, Troy, MO, Guardian Ad Litem.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Father appeals from the judgment of the trial court terminating his parental rights to his minor child. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. 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).