author: PHILLIP R. GARRISON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John TALLY, Defendant-Appellant.
    No. 25710.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.

      Irene Earns, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

On April 29, 2004, this court issued an opinion in this case. On August 24, 2004, by order of the Supreme Court of Missouri, this cause was transferred to that court. On December 21, 2004, the Supreme Court entered an order retransfer-ring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

John Tally (“Appellant”) was charged as a prior and persistent offender with one count of production of a controlled substance, a violation of Section 195.211. Following trial by jury, he was found guilty and sentenced by the trial court, as a prior and persistent offender, to fifteen years imprisonment. In a single point on appeal, Appellant alleges it was prejudicial error for the trial court to overrule his motion to suppress an incriminating statement he made to law enforcement authorities during what Appellant contends was a custodial interrogation. We agree, and must therefore reverse the judgment appealed from and remand for new trial.

I. Statement of Facts

Appellant does not contest the sufficiency of the evidence supporting his conviction. Viewed in the light most favorable to the verdict and the trial court’s ruling on Appellant’s motion to suppress, State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998), the evidence revealed the following: on September 2, 2002, Rick Hamilton (“Hamilton”) and Eugene Wood (“Wood”), both of the Webster County, Missouri sheriffs department, and Alva Thurman “(Thurman”), of the Missouri State Highway Patrol, were engaged in a marijuana eradication effort in Webster County. Their efforts involved the use of a highway patrol helicopter, flown by Thurman, and in which Wood also rode, and communication with Hamilton, who was nearby in his patrol car.

Pursuant to a tip the officers had received, they focused their search on the property of Joe Horman (“Horman”) near Marshfield, Missouri. In a field behind Horman’s house, Thurman and Wood observed what appeared to be two cultivated patches of marijuana plants approximately 150 yards apart. They informed Hamilton by radio of the find, and Hamilton went to the door of Horman’s home to ask him about the plants.

Meanwhile, Thurman and Wood spotted Appellant standing between the two marijuana patches, approximately fifty yards from one and one hundred yards from the other, and looking up at the helicopter. There was no evidence that Appellant had just been tending to the plants. Thurman brought the helicopter closer to Appellant and made a gesture to him indicating that he was to walk toward Horman’s house. Appellant complied, and Thurman and Wood followed him in the helicopter toward the house.

When Hamilton was informed by radio of Appellant’s presence in the field, and that he was walking toward the house, he sought and received Horman’s permission to enter the field to meet Appellant. Hamilton was unarmed and not in uniform; thus, out of concern for his safety, he ordered Appellant to get on his knees and raise his arms to expose his waistband, in order that Hamilton could determine if Appellant was armed. He was not.

There is considerable dispute in the record concerning whether Appellant was immediately allowed to stand up and walk to where Hamilton was standing, as Hamilton testified, or if, instead, Appellant was forced to stay on his knees during his subsequent conversation with Hamilton, as testified to by Wood, Horman, and Appellant. In any event, Hamilton next told Appellant that marijuana had been spotted growing in the field Appellant had just left. Appellant denied any knowledge of the plants, telling Hamilton that he had been in the field looking for rocks, with Hor-man’s permission. Appellant asked Hamilton if he was under arrest, and Hamilton told him that, at that time, he was not.

Hamilton then asked Appellant if he was familiar with “box cameras.” Appellant said he was not, and Hamilton replied that a box camera was a concealed video camera that enabled authorities to record any activity around locations such as the marijuana patches in Horman’s field. In fact, no such device had been installed in the field. Unaware of that fact, Appellant immediately confessed to Hamilton that the plants in the field were for his personal use. -Wood testified that it was at this point in the conversation that he approached Appellant from behind, after Thurman landed the helicopter a short distance from Appellant and Hamilton. Hamilton instructed Wood to arrest Appellant, who was then handcuffed and read his Miranda rights as he was led to Hamilton’s patrol vehicle. The plants in the field were removed and sent to a highway patrol laboratory, where testing confirmed they were marijuana plants, and that the leaves thereof weighed 387 grams.

Appellant was charged as indicated above in the circuit court of Webster County. Following change of venue to Dallas County, Appellant filed a motion to suppress the incriminating statement he made to Hamilton prior to being arrested and Mirandized, claiming the statement was the result of an improper custodial interrogation. Following a hearing, the trial court denied Appellant’s motion. Appellant’s subsequent trial resulted in a mistrial. He was tried a second time and convicted and sentenced, as a prior and persistent offender, as indicated above. This appeal follows.

II. Appellant’s Point Relied On

In his sole point on appeal, Appellant contends that the trial court erred in overruling his motion to suppress his statement acknowledging that the marijuana plants belonged to him, and admitting that statement into evidence at trial over his objection. Appellant argues that the statement was “presumptively coerced” and inadmissible in that it was elicited during a custodial interrogation prior to which Appellant had not been informed of his rights to assistance of counsel and protection from compelled self-incrimination. Admission of the statement was prejudicial, according to Appellant, because the evidence was otherwise insufficient to support a finding of guilt.

III. Standard of Review

In reviewing a claim of error relating to a trial court’s ruling on a motion to suppress, “[t]he correctness of the trial court’s decision is measured by whether the evidence is sufficient to sustain the findings.” State v. Donnell, 849 S.W.2d 733, 733 (Mo.App. S.D.1993). In answering this question, “the facts and reasonable inferences from such facts are considered favorably to the trial court’s ruling and contrary evidence and inferences are disregarded.” State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). “Deference is given to the trial court’s superior opportunity to determine the credibility of witnesses.” Rousan at 845. When, however, the issue to be decided involves the constitutional protection against forced self-incrimination, our review of the trial court’s ruling is a two-part inquiry: we defer to the trial court’s determinations of witness credibility and findings of fact, but consider the court’s conclusions of law de novo. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000). Moreover, “[f|aetual issues on motions to suppress are mixed questions of law and fact” and “ ‘the trial court’s superi- or capacity to resolve credibility issues is not dispositive of the “in custody” inquiry’ ” Id. (quoting Thompson v. Keohane, 516 U.S. 99, 113, 116 S.Ct. 457, 465, 133 L.Ed.2d 383, 394-95 (1995)).

IV. Analysis

A. Legal Background

The Fifth Amendment to the United States Constitution states, in pertinent part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const, amend. V. This provision is applicable to the States in all criminal prosecutions. Dickerson v. United States, 530 U.S. 428, 432, 120 S.Ct. 2326, 2329-30, 147 L.Ed.2d 405, 412 (2000). Moreover, protection against self-incrimination under the Missouri Constitution is commensurate with that provided in the federal constitution. Werner at 595, Mo. Const, art. I, § 19.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States held that custodial interrogation by police must not occur prior to a suspect being informed of his right to assistance of counsel and his right against self-incrimination. Id. at 444, 86 S.Ct. 1602. By “custodial interrogation,” the Court “mean[t] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. In such a context, statements of a suspect, whether exculpatory or inculpatory, are inadmissible on the issue of the defendant’s guilt of the charged offense when made without the benefit of having been informed of his rights under the Fifth Amendment. Id. Whether Appellant was in custody when he made incriminating statements to Hamilton becomes, therefore, the threshold question in our analysis of Appellant’s point.

B. Was Appellant in Custody?

As indicated above, the Miranda Court defined custody as either formal arrest or circumstances in which a suspect is “deprived of his freedom of action in any significant way.” Miranda at 444, 86 S.Ct. 1602. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court clarified this definition when it noted the by-then “settled” doctrine “that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Id. at 440, 86 S.Ct. 1602 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983)). In reviewing for the presence of custody as so defined, a reviewing court is to apply an objective standard, in that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Id. at 442, 86 S.Ct. 1602; see also Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994); Werner at 595.

The landscape of Missouri law on the issue of custody was brought into sharp focus by the court’s analysis in Werner. There, the Supreme Court of Missouri applied a six-part test, previously enunciated in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), to a case in which a mentally handicapped sixteen-year-old boy was removed from his high school class by detectives, transported to a police station, and questioned concerning the suffocation death of the boy’s twenty-two-month-old nephew. Id. at 593. In holding unanimously that the boy was subjected to un-Mirandized custodial interrogation, the court noted generally that the reasonableness of a suspect’s belief that he is in custody is determined by considering the “totality of the circumstances” in view of the suspect’s “freedom to leave the scene,” as well as the “purpose, place, and length” of any interrogation that occurs while the suspect allegedly is in custody. Werner at 595 (citing Chiffin at 1348). The court recited with approval six other “indicia of custody” from Griffin, including

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest;
(2) whether the suspect possessed unrestrained freedom of movement during questioning;
(3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to answer questions;
(4) whether strong arm tactics or deceptive stratagems were employed during questioning;
(5) whether the atmosphere was police dominated; or,
(6) whether the suspects was placed under arrest at the termination of questioning.

Id. at 595 (quoting Griffin at 1349).

The Werner court cautioned that this list is “not exhaustive,” Id. (citing Maine v. Thibodeau, 475 U.S. 1144, 1146, 106 S.Ct. 1799, 1800-01, 90 L.Ed.2d 343, 345-46 (1986) (Burger, C.J., dissenting)), adding that in “examining the totality of the circumstances, courts may also consider an individual’s personal background, experience, familiarity with police questioning, maturity, education, and intelligence.” Id. at 595-96 (citing United States v. Zahrey, 963 F.Supp. 1273, 1278 (E.D.N.Y.1997)). The Werner court went on to state that

[although determining custody is not limited to applying the factors listed above, their presence and absence guide courts in assessing the totality of the circumstances surrounding interrogations. With regard to the first three Griffin factors, the affirmative presence of one or more of them during questioning “would tend to mitigate the existence of custody at the time of questioning.” The affirmative presence of the last three Griffin factors would “tend to aggravate the existence of custody.” It is not necessary that all of the foregoing indicia be present to find custody. “A particularly strong showing with respect to one factor may compensate for a deficiency with respect to other factors.”

Id. at 596 (internal citations omitted).

1. Application of Werner and Griffin to Instant Case

Applying the so-called “Griffin factors” cited by the court in Werner, we find that Appellant was in custody at the time he gave to Hamilton the incriminating statement that he argues should have been suppressed by the trial court.

(I) As to the first of the “Griffin factors,” we acknowledge with the Werner court that “[t]he most ‘obvious and effective means by which the police can demonstrate that a suspect has not been taken into custody’ is for the police to inform the individual that he or she is not under arrest and that the individual can terminate the interview at will.” Werner at 596 (quoting Griffin at 1349). “[T]he absence of police advisement that [a] suspect is not under arrest, or that the suspect is at liberty to decline to answer questions, has been identified as an important indicium of the existence of a custodial setting.” Griffin at 1350. Conversely, where officers have issued such an advisement, custody has frequently been found not to exist. Id.

Here, Appellant asked Hamilton if he was under arrest, to which Hamilton responded, “Not at this time.” Indeed, this constitutes the strongest evidence that Appellant was not in custody when he admitted to Hamilton that the marijuana plants belonged to him. However, Hamilton at no time informed Appellant that he could terminate the conversation with Hamilton at will, mitigating somewhat any inference to be drawn from the fact that Hamilton told Appellant he was not under arrest.

(2) Concerning the second “Griffin factor,” the Werner court noted that “[rjestraint on a suspect’s freedom of movement during questioning bears on whether a court will find that a suspect was in custody.” Id at 596. Suspects often are escorted or chaperoned during questioning for reasons unrelated to custody, but “the relevant inquiry is the effect on the suspect.... [T]he likely effect on a suspect of being placed under guard during questioning, or told to remain in the sight of interrogating officials” is associated with the restraints of a formal arrest and tends to support the existence of custody. Griffin at 1350-51.

In this case, Appellant was ordered by Thurman, who was piloting the helicopter, to walk toward Horman’s house, where he was met by Hamilton and ordered to his knees. If the trial court believed the testimony of Horman, Appellant, and Wood that Appellant remained on his knees throughout the ensuing conversation, the question posed under this second factor would be considerably less debatable. Given, however, the applicable standard of review, we assume the trial court believed the testimony of Hamilton, who stated that Appellant was allowed to stand immediately after Hamilton determined he was not armed. Even so, the presence of Hamilton, Wood, Thurman, and the helicopter, which was either hovering overhead or on the ground a short distance away during Hamilton’s questioning, suggests to us that a reasonable person in Appellant’s position would not have felt that he enjoyed unrestrained freedom of movement.

(3) “The method used to summon the individual is another factor courts consider in determining whether a suspect is ‘in custody.’ ” Werner at 597. “ ‘[W]en [a] confrontation between [a] suspect and the criminal justice system is instigated at the direction of law enforcement officers, rather than the suspect, custody is more likely to exist.’ ” Id. (quoting Griffin at 1351). “Mere acquiescence to an official’s request to answer questions does not indicate that an individual voluntarily is talking with police and not in custody.” Id.; see United States v. Chamberlain, 163 F.3d 499, 504 (8th Cir.1998) (inmate who appeared for interview at request of corrections official did not do so voluntarily because he reasonably could have believed that if he did not answer questions, he would have been in violation of prison rules).

Applying this factor to the case sub ju-dice, there can be little doubt that the conversation between Appellant and law enforcement was initiated at the behest of the latter. He was approached first by officers in a helicopter, then by a deputy who ordered him to the ground and began asking him questions. The encounter between Appellant and the officers was not consensual, adding further weight to the notion that he was in custody.

(4) The fourth factor listed in Werner and Griffin addresses whether police employed strong-arm tactics or deceptive stratagems. “It goes without saying that a strong presumption of impropriety attaches to any circumstances where this [e]ourt detects the use of coercive interrogation techniques to obtain confessions.” Griffin at 1351. Certainly, the use of deception in obtaining a confession from a suspect has been accepted as a viable tool of the interrogator in the custodial setting; that they are so often effective was, however, a powerful impetus for the Miranda decision itself. See Miranda at 466, 86 S.Ct. 1602.

The record before us clearly indicates that Hamilton employed deceptive tactics in obtaining Appellant’s incriminating statement. Indeed, Hamilton admitted as much in his testimony, where he described the purpose of his “box camera” line of questioning as an attempt to convince a suspect “that there is evidence against him, to make a person who’s normally lying to go ahead and — and tell the truth.” Considering the totality of the circumstances, we deem this fact a particularly strong indication that Appellant was in custody when he made his confession to Hamilton.

(5) As to the fifth factor enunciated in Griffin and Werner, questioning that occurs in an atmosphere dominated by the police “is more likely to be viewed as custodial than [questioning] which does not.” Griffin at 1352. “Where the conduct of the police leads a suspect to believe that the police have taken full control of the scene,” a court is more likely to recognize the existence of custody. Id.

Here, it seems unlikely that Appellant could reasonably have believed anything other than that the setting in which Hamilton questioned him was police dominated. Again, Appellant was at all times surrounded by three officers, one of whom was either flying a police helicopter overhead or landing the helicopter a short distance behind Appellant. We find unconvincing the argument that Horman’s presence on the scene mitigated in any significant way the control exercised by the three officers over the scene and Appellant.

(6) The sixth and final indicium of custody listed in Griffin and Werner is whether the suspect was placed under arrest at the termination of questioning. Griffin at 1349. In this case, Appellant was arrested by Wood immediately after making the incriminating statement to Hamilton.

When assessing the totality of the circumstances, a court also may consider an individual’s personal background, experience, familiarity with police questioning, maturity, education, and intelligence. Zahrey at 1278. In this regard, the State argues that Appellant’s “prior and persistent offender” status necessarily indicates that Appellant was aware of police interrogation procedure. The record, however, does not provide a sufficient basis for assuming that Appellant’s prior encounters with the legal system included custodial interrogation, or that he was otherwise familiarized with Fifth Amendment jurisprudence concerning custodial interrogation. Moreover, even if the record did contain such evidence, Appellant’s awareness of police procedure would not, given the totality of the circumstances presented here, be so impressive as to compel a finding that Appellant was not subjected to un-Mirandized custodial interrogation.

2. The State’s “Terry stop” Argument

The State, in its brief, makes no reference to the six-part test established by Griffin and Werner, bottoming its argument, instead, on a contention that the questioning of Appellant was part of “nothing more than an ordinary ‘Terry stop’ ” and that, therefore, the strictures of Miranda did not apply to Appellant’s statements to Hamilton. We are not persuaded that this “Terry exception” to Miranda applies here.

The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. 1868. As for what set of circumstances warrant such an intrusion based on less than probable cause, the Court held that an officer may briefly detain and search an individual if there are “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer at 439, 104 S.Ct. 3138. That the dictates of Miranda do not apply in the context of a valid “Terry stop” was established in Berkemer, where the Court held that “persons temporarily detained pursuant to [Terry ] stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440, 104 S.Ct. 3138.

Here, Appellant was observed standing between two “obvious[ly]” cultivated patches of plants, believed to be marijuana, prior to approaching Hamilton, who was unarmed and not in uniform. The officers on the scene could well have harbored a reasonable suspicion, based upon specific and articulable facts, that Appellant may have been engaged in criminal activity.

However, the Supreme Court has explicitly recognized that a valid Terry stop may evolve into a custodial setting in which the dictates of Miranda will apply. See Berkemer at 440, 104 S.Ct. 3138 (where a suspect detained pursuant to a valid Terry stop “thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, [the suspect] will be entitled to the full panoply of protections prescribed by Miranda ”). Again, whether a valid Terry stop has evolved into a de facto arrest is determined based upon “how a reasonable man in the suspect’s position would have understood his situation,” Id. at 442, 104 S.Ct. 3138, and, as we already have found based upon our preceding custody analysis, a reasonable person in Appellant’s position would have deemed himself to be in custody.

The State points to Donnell and State v. Middleton, 854 S.W.2d 504 (Mo.App. W.D.1998), in support of its argument that Appellant was subjected to nothing more than a valid Terry stop. Such reliance is misplaced.

In Donnell, we acknowledged that “Miranda warnings are not required when a police officer is conducting a preliminary on-the-scene investigation to determine the nature of the situation. Even if the [detainee] is the focus of the investigation, no Miranda warning is required when the inquiry is preliminary and has not become accusatory.” Id. at 736 (emphasis added). It is upon the emphasized language from the preceding quote that the State’s reliance on Donnell founders. Indeed, the Donnell court later cited with approval a Wisconsin case in which the court held that the appellant had not been in custody because “ ‘no police trickery or deception was used.’ ” Id. at 737 (quoting State v. Esser, 166 Wis.2d 897, 480 N.W.2d 541, 543 (1992)). Here, in contrast, Hamilton admitted in his testimony that the “box camera” line of questioning he employed was intended to elicit an incriminating response from Appellant, that it was a “bluff’ the intent of which was “to make [Appellant] believe that there [was] evidence against him.” Hamilton described the “technique” as one designed “to make a person who’s normally lying to go ahead and — and tell the truth.” This approach to questioning Appellant, which the State acknowledged was a “ruse,” does not strike us as the sort of “preliminary, investigatory questions by police” that do not indicate a person is in custody. Donnell at 737 (quoting State v. Crane, 841 S.W.2d 271, 273 (Mo.App. W.D.1992)).

The holding in Middleton is inapposite here for much the same reason. There, the western district of this court, in the course of a careful analysis and application of the law in Missouri concerning custodial interrogation, acknowledged that “Miranda makes exception for investigatory questions by the police[.]” Id. at 511. However, the Middleton court, in finding that the defendant there was not in custody when he made incriminating statements to police, specifically noted in support of its holding that on the facts before it, there was “no evidence of strong-arm tactics, deceptions or trickery to obtain incriminating statements. The police questions were straightforward.” Id. at 511. As we have indicated, this clearly was not the case here. We find, on the record before us, and based upon the totality of the circumstances, that what may arguably have begun as a valid Terry stop became a custodial situation prior to the making of Appellant’s incriminating statement to Hamilton, and that the requirements of Miranda were, therefore, applicable.

C. Was Appellant Interrogated?

Having determined that Appellant was in custody at the time of Hamilton’s questioning, we are left only with the relatively straightforward question whether he was subjected to un-Mirandized interrogation subsequent to being placed in custody.

The Miranda Court held that by “custodial interrogation,” it “mean[t] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. 1602. The Court expounded on this fairly simple definition in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), where it stated that Miranda applies when a suspect is subjected either to express questioning or its functional equivalent — words or actions the police should know are reasonably likely to elicit an incriminating response. Id. at 300-02, 100 S.Ct. 1682; see also State v. Cook, 67 S.W.3d 718, 721 (Mo.App. S.D.2002).

Applying the standard announced in Miranda and Innis to the facts here, there is little doubt that Appellant was subjected to custodial interrogation. Indeed, having staked its argument on a contention that Appellant was not in custody for purposes of a Miranda analysis, the State makes no contention otherwise. The questioning was initiated by Hamilton subsequent to the point in time at which a reasonable person would have believed himself to be in custody and consisted of express questions designed to elicit an incriminating response, specifically, the “box camera ruse” that Hamilton admitted was an oft-used technique to encourage a suspect’s confession.

Y. Conclusion

We find, based on the totality of the circumstances, that Appellant was subjected to custodial interrogation without having been advised of his rights as required by Miranda. The exception to Miranda carved out by Terry and its progeny does not apply here, and we must therefore hold that the evidence was insufficient to support the trial court’s findings that Appellant’s Fifth Amendment rights were not violated and that his statement to Hamilton should not have been suppressed. See Donnell at 733.

The judgment is reversed, and the case is remanded for new trial consistent with this opinion.

BARNEY, P.J., and PREWITT, J., concur.

      . References to statutes are to RSMo (2000) unless otherwise indicated.

      . That Appellant had such permission in advance was confirmed by Horman in his testimony.

      . Terry was decided in the context of a Fourth Amendment "search and seizure" claim, whereas this case involves no claim implicating the Fourth Amendment. No opinion is expressed herein concerning an unclaimed violation of Appellant's right to be free from unreasonable search, or seizure. Nevertheless, inasmuch as Appellant’s claim is bottomed on an argument that he was in custody, and to the extent Terry speaks to that question, it is appropriate to consider Terry and its progeny here.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    Arthur CORNEJO, d/b/a J & D Janitorial Services, Respondent, v. CRAWFORD COUNTY, Missouri, Appellant.
    No. 26340.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 28, 2005.

      Sidney T. Pearson, III, Steelville, for appellant.
    John D. Beger, Beger, Bushie <& Scheid-erer, L.L.C., Rolla, for respondent.
   ROBERT S. BARNEY, Judge.

Crawford County, Missouri, (“Appellant”) appeals from the trial court’s grant of summary judgment in favor of Respondent Arthur J. Cornejo (“Respondent”). In its two allegations of trial court error arising out of a contract action, Appellant first alleges summary judgment was improper because there was no showing of a contractual relationship between Appellant and Respondent and, second, Appellant alleges the trial court failed to apply the correct measure of damages in awarding summary judgment in favor of Respondent. We affirm the judgment of the trial court.

The record reveals that on April 13, 2001, Appellant entered into a contract with “J & D Janitorial Services, LLC” (“J & D”). The document reveals the signature of Appellant’s three county commissioners and also shows that Respondent affixed his individual signature, i.e., “Arthur J. Cornejo,” to the document, along with the title designation of “Owner.” The contract provided that in exchange for providing weekday janitorial services for the Crawford County Courthouse and Annex, Appellant would pay Respondent $1,600.00 per month for a period of twenty-four months.

From April 13, 2001, until May 17, 2002, Respondent provided janitorial services pursuant to the terms of the contract. On May 17, 2002, Appellant notified Respondent it was suspending his contract due to Respondent’s arrest on felony drug charges. According to Appellant, the contract was suspended because Respondent’s “cleaning of the courthouse would have required access to the offices in which files are maintained concerning the criminal charges against him.” At that time, there were approximately eleven and a half months remaining on the contract. Appellant declined to exercise a provision in the contract, namely paragraph “4”, which set out that the “[cjontract may be voided by either party with a 30 day written notice.”

On March 20, 2003, Respondent filed a breach of contract suit against Appellant. This suit alleged Appellant “arbitrarily, capriciously and without just cause or excuse” breached its contract with Respondent and requested judgment in his favor and against Appellant in the amount of $17,600.00 plus interest and costs.

Respondent filed a motion for summary judgment on January 6, 2004, in which he stated “there is no genuine issue as to any material fact” and that a judgment should be entered as a matter of law. He also attached a memorandum in support of his motion, together with an affidavit from Respondent and other documents.

In response, Appellant filed a one page answer to the motion for summary judgment asserting that Respondent was not entitled to judgment as a matter of law, and that there were facts in dispute that the fact finder had to determine at trial. In addition, Appellant filed a memorandum in opposition to the motion for summary judgment. No affidavits were filed in support of its response.

Following argument by both sides, the trial court granted Respondent’s motion and entered a judgment against Appellant in the amount of $18,400.00 plus $2,429.14 in interest. This appeal followed.

In its first point on appeal, Appellant maintains the trial court erred in granting Respondent’s motion for summary judgment and in assessing damages against it. Specifically, Appellant maintains

there was no showing of any contractual relationship between Appellant and Respondent, in that any contract was between J & D Janitorial Services, LLC, a legal entity, and Crawford County, and a member, manager, employee or agent of a limited liability company is not a proper party to proceedings by or against a limited liability company, pursuant to section 347.069....

We begin by noting a claim that a suit should have been filed in the name of a certain entity is waived if it is not raised by pleading or motion in accordance with Rules 55.13 and 55.27(g)(1)(E). Executive Jet Mgmt. & Pilot Serv., Inc. v. Scott, 629 S.W.2d 598, 611 (Mo.App.1981). Even if a party enters a responsive pleading alleging a party lacks the capacity to sue, a general denial is not sufficient to constitute a “specific negative averment” as required by Rule 55.13. See Gilmore v. Bi-State Dev. Agency, 936 S.W.2d 193, 194 (Mo.App.1996). Further, in pertinent part, Rule 55.27(g)(1) sets out that a challenge “[t]hat plaintiff does not have legal capacity to sue” is waived if “[ojmitted from a motion in the circumstances described in Rule 55.27(f),” or when “[n]either made by motion under this Rule 55.27 nor included in a responsive pleading.” Rule 55.27(g)(1); see also Boatmen’s First Nat’l Bank v. Roofco Sys., Inc., 852 S.W.2d 402, 404 (Mo.App.1993).

Here, Appellant argues there was no showing of a contractual relationship between Respondent and Appellant; however, Appellant’s argument fails for several reasons. First, Appellant did not raise the issue of Respondent’s standing to sue in a responsive pleading before the trial court. Secondly, Appellant failed to specifically raise the issue in his response to Respondent’s motion for summary judgment at the hearing on the summary judgment motion. Claims that a party lacks the capacity to sue or be sued must be raised in a responsive pleading under both Rule 55.13 and Rule 55.27(g)(1)(E). See Petry Roofing Supply, Inc. v. Sutton, 839 S.W.2d 337, 341 (Mo.App.1992). Accordingly, Appellant waived this issue. In this instance, Respondent’s capacity to sue cannot be raised for the first time on appeal. See Pemiscot County Mem’l Hosp. v. Bell, 770 S.W.2d 499, 502 (Mo.App.1989). Point denied.

In its second point on appeal, Appellant maintains the trial court erred in awarding Respondent $18,400.00 as damages. Appellant argues the measure of damages in this matter was incorrect in that the trial court “drew said sum from the gross amount remaining to be paid under the contract at the time of suspension.” According to Appellant, the proper amount of damages “would have been the gross amount due under the contract minus the sum which [Respondent] would have expended to perform under the contract for the remaining term.” We disagree.

In reviewing appeals from the grant of a motion for summary judgment, this Court reviews “the record in the light most favorable to the party against whom judgment was entered.” Reese v. Ryan’s Family Steakhouses, Inc., 19 S.W.3d 749, 751 (Mo.App.2000). “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the motion.” Id. Since the standard of appellate review on a judgment for summary judgment is no different than that employed by the trial court in determining the propriety of sustaining the initial motion, our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

“ ‘The key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question.’ ” Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App.1999) (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App.1995)). As such, a grant of summary judgment is appropriate “[w]hen a moving party makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to a judgment as a matter of law....” McAninch v. Robinson, 942 S.W.2d 452, 456 (Mo.App.1997). “A genuine issue exists, as to one of the material facts underlying the moving party’s right to summary judgment, where the record contains competent evidence that demonstrates two plausible, but contradictory, accounts of the essential fact.” Birdsong, 6 S.W.3d at 222. A genuine issue “implies that the issue, or dispute, must .be . a real and substantial one-one consisting not merely of conjecture, theory and possibilities.” ITT Commercial Fin. Corp., 854 S.W.2d at 378 (emphasis added).

An appellate court will reverse a judgment that awards damages for breach of contract if the record shows an absence of “proof of actual facts that present a basis for a rational estimate of damages without resorting to speculation.” Gillham v. LaRue Constr., 136 S.W.3d 852, 856 (Mo.App.2004). The proper measure of damages is a question of law for determination by the trial court. 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d 573, 584 (Mo.App.2003).

As a general rule, in a breach of contract case, the goal in awarding damages is to put the non-breaching party in as good a position as he or she would have been in if the contract had been performed. Williams v. Hubbard, 789 S.W.2d 810, 812 (Mo.App.1990). A party claiming damages for breach of contract bears “the burden of proving the existence and amount of damages with reasonable certainty.” Am. Laminates, Inc. v. J.S. Latta Co., 980 S.W.2d 12, 23 (Mo.App.1998). “The particular facts and circumstances of each case dictate which measure of damages is appropriate.” Gee v. Payne, 939 S.W.2d 383, 385 (Mo.App.1997).

It has been long held that a “plaintiffs damages, for breach of a contract of employment for a time certain, are prima facie the contract price agreed upon for such service.” Koenigkraemer v. Missouri Glass Co., 24 Mo.App. 124, 128 (Mo.App.St.L.1887). Under these circumstances a plaintiff “discharged while in the performance of the contract and without fault on his part, [is] entitled to recover the contract price as though he had fully performed the contract.” Simpson v. Ball, 145 Mo.App. 268, 129 S.W. 1017, 1018 (1910). “[T]he contract price of the services will be the measure of recovery for the plaintiff [when a defendant refuses to allow a plaintiff to perform his contract] unless the defendant by evidence shows that the damages actually sustained are less than the price agreed upon.” Nearns v. Harbert, 25 Mo. 352, 354-55 (Mo.1857) (emphasis added).

Accordingly, “[t]he burden was on [Appellant] to plead and prove mitigating facts” and to prove Respondent was not entitled to recover the full amount permitted under the contract. Simpson, 129 S.W. at 1018; see also Puller v. Royal Cas. Co., 271 Mo. 369, 196 S.W. 755, 761 (1917).

Here, Appellant bore “the burden of proof [to] ... show that [Respondent] had an opportunity to mitigate.... ” Bus. Men’s Assurance Co. v. Graham, 891 S.W.2d 438, 448 (1994). It failed in its burden by not tendering evidentiary support in favor of its contention.

When the moving party in a summary judgment motion makes such a pri-ma facie showing, the burden shifts to the non-movant to show that one or more material facts are genuinely disputed. Arnhold v. McDonnell Douglas Corp., 992 S.W.2d 346, 353 (Mo.App.1999). Rule 74.04 requires that a non-moving party in a motion for summary judgment “may not rest upon the mere allegations and denials of the pleadings but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial.” Zipper v. Health Midwest, 978 S.W.2d 398, 408 (Mo.App.1998). Rule 74.04(c)(2) states in pertinent part:

The response [to a summary judgment motion] shall admit or deny each of movant’s factual statements_A denial may not rest upon the mere allegations or denials of the party’s pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial. Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.

“The requirements of Rule 74.04(c)(2) are mandatory.” Chopin v. Am. Auto. Ass’n, 969 S.W.2d 248, 250 (Mo.App.1998).

In its memorandum in opposition to Respondent’s motion for summary judgment, Appellant made no attempt to controvert Respondent’s evidence of the amount of damages owed. Respondent asserted he entered into a twenty-four month contract which required payments to him of $1,600.00 per month, for a total contract value of $38,400.00. He maintained that at the time of Appellant’s breach he was damaged in the amount of $17,600.00 for the amount of time remaining under the contract. The burden was upon Appellant to controvert this proposition; it made no attempt in its written pleadings or at the motion hearing to prove Respondent failed to mitigate damages or was even required to mitigate damages. Appellant had the opportunity to present “affidavits, depositions, answers to interrogatories, or admissions on file” to demonstrate the existence of a genuine fact related to the issue of damages. However, Appellant rested on the mere allegations and denials found in its pleadings. See Zipper, 978 S.W.2d at 408. Appellant has failed to “demonstrate specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2).

When, as in the present matter, damages are shown by specific ascertainable values, and one party has failed to carry its burden to prove otherwise, there is no reason why summary adjudication should not include an award of damages. See Missouri Ins. Guar. Ass’n v. Wal-Mart Stores, Inc., 811 S.W.2d 28, 35 (Mo.App.1991). Point Two is denied.

We affirm the judgment of the trial court.

PARRISH, P.J. and SHRUM, J. concur.

      . Unless otherwise specified, all Rules references are to Missouri Court Rules (2004).

      . We note that the stated measure of damages in the present matter differs from the formula put forward by Appellant in its brief. This is not a construction contract situation as urged by Appellant. In construction contract cases, "the measure of damages is the contract price less the amount it would have cost the contractor to perform.” Wisch & Vaughan Constr. Co. v. Melrose Prop. Corp., 21 S.W.3d 36, 43 (Mo.App.2000).

      . See McGee v. St. Joseph Belt Ry. Co., 232 Mo.App. 639, 110 S.W.2d 389, 392 (1937); Paddock v. Mason, 187 Va. 809, 818, 48 S.E.2d 199 (Va.1948); South Side Buick Auto Co. v. Schmitter, 5 S.W.2d 687, 688 (Mo.App.1928); Martin v. Bd. of Educ., 120 W.Va. 621, 199 S.E. 887, 889 (1933) (holding that "Mitigation of damages is an affirmative defense, and its burden is entirely on the contract breaker”).


author: PER CURIAM.

text:
    In re Vincent LOMAX, Petitioner, v. Jack L. MERRITT, Greene County Sheriff, Respondent.
    No. SD 26669.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 31, 2005.

      Vincent Lomax, pro se.
    Darrell L. Moore, Prosecuting Atty., Michael Huddleston, Office of Prosecuting Atty., John W. Housley, Springfield, for respondent.
    Before PARRISH, P.J., SHRUM, J., and BATES, C.J.
   PER CURIAM.

Vincent Lomax (“Petitioner”) has filed a petition for writ of habeas corpus in this court challenging the lawfulness of his detention in the Greene County jail by Jack L. Merritt (“Respondent”), the sheriff of Greene County, Missouri. Specifically, Petitioner challenges the validity of his confinement pursuant to an “Order of Contempt” entered by the Honorable Donald E. Burrell, Jr., on January 14, 2004. This court orders Petitioner discharged from the effects of the January 14, 2004, Order of Contempt.

BACKGROUND

On October 5, 2001, Petitioner was charged in Greene County Case No. 301CF8584 with three counts of passing bad checks in violation of § 570.120. Petitioner posted bond in the case on April 23, 2003, and was released from custody.

Before his release, Petitioner filed various pro se documents with the circuit court in which he claimed to own the name ‘Vincent Lafayette Lomax” by virtue of a “common-law copyright of trade-name/ trade-mark.” Among other things, these documents stated that any person who used the name “Vincent Lafayette Lomax” or any derivative thereof without the “pri- or, express, written consent and acknowledgment of Vincent Lafayette Lomax” would be bound by a “Self-executing Con-traet/Security Agreement” whereby the “User” agreed to grant “Secured Party” a security interest in the “User’s assets” in the amount of $500,000 for each unauthorized use of petitioner’s name. According to the documents, ‘Vincent Lafayette Lo-max is Secured Party.”

While free on bond, Petitioner failed to appear for several scheduled court appearances. As a result, on November 25, 2003, the circuit court issued a capias warrant for his arrest. Thereafter, Petitioner was arrested on the warrant and confined in the Greene County jail.

On January 14, 2004, Petitioner appeared before Judge Donald E. Burrell, Jr., in the circuit court of Greene County. Based on the transcript of those proceedings, it is evident that, some time prior to the January 14 proceeding, Petitioner had refused to grant Judge Burrell permission to call him by name. It appears that the purpose of the January 14 hearing was to revisit this issue. At the outset, Judge Burrell said to Petitioner, “State your name, please.” Petitioner replied, “Vincent Lomax.” Judge Burrell then addressed Petitioner as follows:

Sir, I gave you some additional time to consult with [counsel] and try and come up with a legitimate reason for your insistence that I not call you by your name during these proceedings. I’ve taken a look at the file. I think some of the filings that you’ve made and put in the file I could interpret as an attempt to influence me and hinder me from carrying out my official duties in a way that I think is proper.
I told you that you’re in danger of being found in contempt, also for not allowing me to use your name during these proceedings, which I think is required for me to fulfill those duties. So you were going to have some time to think about that, consult with your lawyer, and get back to me on what if any explanation you have for your position. I think I’m ready to hear that from you now.

Petitioner responded:

My position has to do with my defense in this case, Judge. And the fact that my reluctance or hesitancy, as it was, to grant your permission to use my name affects my defense. It has to do with my right to privacy under the Fourth Amendment of the Constitution and the due process right not to have my property taken without — not—to be compensated for use of my property without due process, without — excuse me, let me regress. The right not to have my property used without compensation under the Fifth Amendment to the Constitution. These are reasonable, I think, legal positions to take with regard to this matter, and that’s basically in my own
words the reason that I’m hesitant to allow you to use my name.

After further colloquy between Judge Bur-rell and Petitioner — all of which appears to have been conducted in a civil and courteous manner — Judge Burrell announced:

All right. Well, with all do [sic] respect, back to you. I’m going to find you in criminal contempt of this Court for refusing me ... the right to use your name, if there is such a right. Your refusal to waive it I think is unreasonable. I think it’s criminally contemptuous of this Court’s authority. And so I hereby find you in criminal contempt of this Court.
You can purge yourself at any time you want, sir, by coming in and allowing me to use your name in connection with ... this criminal proceeding and not for any other purposes, and certainly not to waive any other rights that you have anywhere else. But I’m not taking any additional action on this case until you use the key that you have to unlock the jail house doors, so to speak, and allow us to proceed.

Judge Burrell proceeded to enter an “Order of Contempt” consistent with his pronouncement of contempt from the bench. The text of the order reads as follows:

ORDER OF CONTEMPT
THE DEFENDANT herein, having appeared before this Court on the 14th day of January, 2004, and having been given the opportunity to grant this Court permission to address him by his given name, has refused to grant such permission.
IT IS the finding of this Court that the denial of permission to address the Defendant by name for the limited purpose of this case is without legal justification, is done in bad faith, and is contemptuous of the authority of this Court;
IT IS, therefore the Order of this Court, that the defendant in this case be remanded to the custody of the Greene County Sheriff and held without bond. It is the further Order of this Court that the Defendant may purge himself of this contempt, at any time, by the act of granting this Court permission to address him by name during the conduct of these proceedings.
Done in open court this 14th day of January, 2004.
/s/ Don E. Burrell Judge Don E. Burrell

After filing numerous petitions for writ relief in various courts, Petitioner filed the instant petition for writ of habeas corpus in this Court on November 23, 2004. Petitioner asserts that his refusal to grant Judge Burrell permission to address him by name was not contemptuous conduct. Respondent, on the other hand, maintains that Petitioner’s conduct was contemptuous and that his detention pursuant to Judge Burrell’s January 14 “Order of Contempt” is lawful.

DISCUSSION AND DECISION

There are two classes of contempt, civil and criminal. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo.banc 1994). The trial court’s designation of the contempt as criminal “does not necessarily make it such.” Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo.banc 1976). See In re Marriage of Hunt, 933 S.W.2d 437, 448 (Mo.App.1996). “We must rather look to the substance of the order to determine its true nature.” Id. at 448. “The distinction between criminal contempt and civil contempt is not always clear and ‘[tjhere can be contempts in which both civil and criminal elements appear.’ ” Ex parte Ryan, 607 S.W.2d 888, 890 (Mo.App.1980) (quoting State ex rel. Jarboe v. Holt, 444 S.W.2d 857, 860 (Mo. banc 1969)). “ ‘Although at times the line is hard to draw, the essential difference lies in who is sought to be protected by the contempt proceeding.’ ” Teefey, 533 S.W.2d at 565-66 (quoting Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970)). See Mummert, 887 S.W.2d at 578.

“Civil contempt is for the protection of a party to the litigation, the party for whose benefit the order, judgment or decree was entered. Its function is to provide a coercive means to compel the other party to the litigation to comply with relief granted to his adversary....
“Criminal contempt on the other hand does not serve the function of aiding a litigant in achieving the relief granted but is for the purpose of protecting the dignity of the court.... The power of criminal contempt springs not from the needs to protect a litigant, but from the inherent power of the courts to protect the judicial system....”

Teefey, 533 S.W.2d at 566 (quoting Mechanic, 461 S.W.2d at 304-05). Stated another way:

Civil contempt is intended to benefit a party for whom an order, judgment, or decree was entered. Its purpose is to coerce compliance with the relief granted.... Criminal contempt is punitive in nature and acts to protect, preserve, and vindicate the authority and dignity of the judicial system and to deter future defiance.

Mummert, 887 S.W.2d at 578 (citations omitted).

Here, at the time the “Order of Contempt” was entered, there existed no order for the benefit of another party concerning the use of Petitioner’s name. Moreover, there is nothing in the “Order of Contempt,” itself, or elsewhere, to indicate that the order was made to protect another party to the litigation or to coerce Petitioner to comply with any prior order made for the benefit of another party. Instead, the “Order of Contempt” appears to have been intended to “protect, preserve and vindicate the authority and dignity” of the court. See Mummert, 887 S.W.2d at 578. Therefore, we conclude that Judge Burrell’s “Order of Contempt” is in the nature of criminal contempt and that habeas corpus is appropriate to challenge the lawfulness of Petitioner’s confinement pursuant to that order. See Thornton v. Doyle, 969 S.W.2d 342, 344-45 (Mo.App.1998) (“There is no right of appeal from a judgment of criminal contempt. Where the contemnor is committed to jail, the validity of the judgment is tested by a writ of habeas corpus.”).

“In order to sustain a judgment of contempt, it must be shown that the particular judgment can be sustained under the facts and the law.” State ex rel. Lepper v. Kinder, 14 S.W.3d 674, 677 (Mo.App.2000). By their terms, Rule 36.01, Missouri Supreme Court Rules (2004), and sections 476.110-.160 are applicable to cases of criminal contempt. As relevant here, Rule 36.01(a) provides that “[t]he judgment of contempt and the order of commitment shall recite the facts and shall be signed by the judge and entered of record.” Similarly, section 476.140 provides that “[w]henever any person shall be committed for any contempt specified in sections 476.010 to 476.310, the particular circumstances of his offense shall be set forth in the order or warrant of commitment.” “[I]n contempt proceedings, whether direct or indirect, the facts and circumstances constituting the offense ... must be recited with particularity in both the judgment of contempt and the order of commitment.” Ex parte Brown, 530 S.W.2d 228, 231 (Mo.banc 1975). “A judgment of criminal contempt, otherwise void on its face, cannot be validated by other conduct, contemptuous in fact, which is not made a part of the judgment.” State ex rel. Tannenbaum v. Clark, 838 S.W.2d 26, 35 (Mo.App.1992).

Here, the only fact recited in the “Order of Contempt” as giving rise to the order is that Petitioner refused to grant the trial court permission to address him by his given name. Based on our review of the “Order of Contempt” and the trial court’s record in this matter, we find that Petitioner’s refusal to grant Judge Burrell permission to address him by name, standing alone, was not contemptuous. In so holding, we observe that Petitioner does not deny that he is Vincent Lomax. On the contrary, he willingly identified himself as ‘Vincent Lomax” during the January 14 hearing. Furthermore, there is no indication in the transcript of the January 14 hearing or the “Order of Contempt” that Petitioner, in refusing to grant Judge Burrell permission to call him by name, behaved uncivilly or insolently toward the court in any way. Finally, we note that Judge Burrell did not need permission to call Petitioner by his name. Thus, Petitioner’s refusal to grant such permission was inconsequential. “ ‘[T]he court [cannot] make contempt of that which is not contempt: and every attempt to do so would be in excess of authority or jurisdiction ... There must be contempt in order to justify punishment for that offense.’ ” Kinder, 14 S.W.3d at 677 (quoting Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 920 (1912)). Because Petitioner’s refusal to grant Judge Burrell permission to call him by name was not contemptuous, the trial court exceeded its jurisdiction by holding Petitioner in criminal contempt on that basis.

Moreover, we note that the penalty imposed in the “Order of Contempt” also exceeded the trial court’s jurisdiction. As stated above, “[c]riminal contempt is punitive in nature and acts to protect, preserve, and vindicate the authority and dignity of the judicial system and to deter future defiance.” Mummert, 887 S.W.2d at 578. “Where imprisonment is imposed as a punishment, as in criminal contempt, generally it must be for a fixed or definite term and it cannot be prolonged indefinitely.” 17 C.J.S. Contempt § 117 (1999). Here, the penalty set out in the “Order of Contempt” is not for a definite term. Rather, it orders Petitioner to be held for an indefinite term, without bond, until such time as he purges himself of contempt. By its nature, such a penalty is coercive and would be permissible in a case of civil contempt. See, e.g., Ryan, 607 S.W.2d at 890. Inasmuch as this was a proceeding for criminal contempt, however, such a penalty was inappropriate and in excess of the trial court’s jurisdiction.

For all of these reasons, we hereby order Petitioner discharged from the effects of the January 14, 2004, “Order of Contempt.” This order of discharge should not be considered as a grant of any relief in connection with the charges currently pending against Petitioner in Greene County Case No. 301CF8584. See State ex rel. Mack v. Purkett, 825 S.W.2d 851, 858 (Mo.banc 1992).

      . Unless otherwise indicated, all statutory references are to RSMo (2000).

      . Additionally, each of the two classes of contempt also has two subcategories, direct and indirect. Mummert, 887 S.W.2d at 578.
      A direct contempt occurs in the immediate presence of the court or so near as to interrupt its proceedings. If the judge certifies that he or she saw the conduct constituting contempt, a direct contempt may be punished summarily. An indirect contempt arises from an act outside the court that tends to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice.

        Id. (Citations omitted.) Here, the conduct at issue occurred in the presence of the court.