author: ROBERT G. ULRICH, P.J.

text:
    STATE of Missouri, Respondent, v. Donald L. BIGGS, Sr., Appellant.
    No. WD 63312.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Jeannie M. Willibey, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, P.J.

Donald Biggs, Sr. was convicted of first-degree robbery, section 569.020, as an accomplice in the armed robbery of Michele Leach. He was acquitted of first-degree assault and armed criminal action, charges that emanated from the same occurrence. Mr. Biggs asserts two points on appeal, claiming that the trial court plainly erred by (1) instructing in the disjunctive in its verdict director when the evidence supported only a single theory of liability, and (2) failing to sua sponte either declare a mistrial or instruct the jury to disregard allegedly improper comments made by the State during closing argument.

The judgment of conviction is affirmed.

Facts

In an appeal from a conviction, the evidence presented at trial is reviewed in the light most favorable to the verdict. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). On October 25, 2001, Donald Biggs, Sr. (Mr. Biggs) left his Independence home with his son, Donald Biggs, Jr. (Donald Jr.). Over the next two days, Donald, Jr. engaged in a series of armed robberies throughout numerous cities and counties in western Missouri. Donald Jr. was ultimately convicted of the crimes, and Mr. Biggs was charged as an accomplice in the robbery and shooting of Michele Leach, the final robbery in the spree. The details of the other robberies were recounted in detail throughout the course of the three-day trial. Mr. Biggs does not challenge the sufficiency of the evidence against him, but a summary review of the events provides context to the points raised on appeal.

On October 25, 2001, Madhuker Patel was the general manager of a Days Inn in Oak Grove in which Mr. Biggs, Donald Jr., and a young woman rented a room. At around 2 p.m., Mr. Biggs left with the woman while Donald Jr. remained in the lobby. Donald Jr. displayed a gun and demanded money from Mr. Patel. In addition to the money from the cash drawer, Mr. Patel gave Donald Jr. his wallet, which contained credit cards and identification. After leading Mr. Patel to his apartment in search of more money, Donald Jr. fled.

The following day, October 26, Audrey Portwood was working at the Alamo Steakhouse in Sedalia. Although the restaurant was closed, Ms. Portwood heard the alarm signal that someone had entered the front door at about 2:30 p.m. A man standing in the front of the restaurant displayed a gun from “somewhere,” which he put to her throat and demanded money. Ms. Portwood pushed the gun away and it discharged. The man then pushed Ms. Portwood down and ran out the front door. Although Ms. Portwood ran after him, she was unable to see the man or any vehicles except her own and the Miller beer truck in the parking lot. Ms. Portwood was unable to identify the man who had attempted to rob her, but Donald Jr. admitted to the robbery when he later testified at his father’s trial.

During the afternoon of the same day, Pamela Parr was working at a convenience store in Tipton. Donald Jr. came into the store to ask her for an application, at which time she noticed his left ear was “all bloody” and he was “acting weird.” Soon, Ms. Parr heard a clerk “hollering” and noticed Donald Jr. behind the counter with the clerk. Donald Jr. swung around and pointed a gun at Ms. Parr’s head, demanding money. After he had taken the money from the cash register, Donald Jr. ordered Ms. Parr, the clerk, and a customer into a back room. He ordered them to lie on the floor, where they remained until he left. Ms. Parr did not see any vehicle in the parking lot except her own car and the cars of the clerk and the customer. A senior housing center that includes parking for the residents is located behind the building, though customers ordinarily did not park at the senior center to visit the convenience store.

Around noon on October 27, 2001, Joanne Gregory and Doris Wren were working at an antique mall in Rocheport. The door opened, and Donald Jr. walked in and asked for the manager. Donald Jr. produced a firearm and demanded money. Ms. Gregory gave him the money from the cash register, and both women gave Donald Jr. the money from them purses. Donald Jr. threatened to kill the two women and ordered them to sit in chairs at the bottom of the steps leading to the basement of the building. He then went back up the stairs and yelled to someone “it is clear, you can come in.” Ms. Gregory and Ms. Wren proceeded out the back door, ran to the interstate, and waved down a car for help.

Just after 1:00 p.m. on October 27, 2001, Michele Leach was working at a gas station in Emma. Ms. Leach observed an older man driving an older-model maroon car that entered the parking lot and drove between the gas pumps. The car parked parallel to the store near a coin-operated air pump with the passenger side of the vehicle facing the store. The passenger within the car, later identified as Donald Jr., came into the store and asked Ms. Leach for change for a dollar. After Ms. Leach provided the change, Donald Jr. returned to the passenger side door of the vehicle he had exited, which had been left open. Ms. Leach noticed that he then leaned into the passenger side of the car and grabbed something before coming back into the store. Donald Jr. approached the register and presented a firearm that had been concealed beneath his clothing, demanding money.

Donald Jr. ordered Ms. Leach to give him the money out of the register and the safe and to keep her hands where he could see them. Ms. Leach opened the cash register, and Donald Jr. reached over the counter and grabbed the money. As Donald Jr. backed out of the store, he pulled the trigger of the firearm twice, but each time it misfired making a clicking sound. He pulled the trigger a third time, and the weapon fired. Ms. Leach was shot in her left side, just above her waistline. Donald Jr. ran out of the store and jumped into the waiting vehicle, which immediately left the parking lot and proceeded west on Interstate 70. Ms. Leach called 911 and told the operator that a maroon car was proceeding westbound on 1-70. Ms. Leach was transported to Marshall, where she underwent extensive surgery.

Officer Monte Crane of the Concordia Police Department received information about the shooting shortly after 1:00 p.m. Officer Crane stopped his marked patrol car under an overpass of 1-70 and saw a maroon car exit the interstate and proceed toward the top of the ramp at a high rate of speed. Before the car had traveled half way to the top of the exit ramp, the front end of the car “dipped severely, indi-cat[ing] that the driver had either seen the patrol car or over estimated his speed.” The car stopped at the stop sign at the top of the exit ramp, where it remained for thirty to forty-five seconds while the individuals in the vehicle conversed with each other. The passenger of the car “shrank down” in the seat, looking at the officer, and the driver was “looking back and forth.” The driver of the car then accelerated, leaving black marks on the roadway.

Officer Crane activated his siren and emergency flashers and followed the car as it drove into a gas station entrance and stopped. As the officer exited the vehicle, Donald Jr. opened the passenger door, rolled out of the car, and fired shots at the officer. Officer Crane fired his weapon in response, and Donald Jr. fled. Officer Crane then approached the driver and ordered him out of the car. Mr. Biggs responded by driving the vehicle from the parking lot. Officer Crane radioed a description of the car and the license plate number.

Corporal Alex Whitehead of the Missouri State Highway Patrol was driving a patrol car when he heard about these incidents over the radio and soon observed the identified vehicle traveling west on 1-70. He followed the vehicle and eventually arrested Mr. Biggs. Corporal Whitehead discovered Mr. Patel’s credit cards, Price Chopper card, and driver’s license in Mr. Biggs’ front shirt pocket. When asked to whom the cards belonged, Mr. Biggs said something that Corporal Whitehead could not understand. When asked what he had been doing for the last three hours, Mr. Biggs replied, “trying to get away from.... ” After this statement, he paused and then stated that he was with a prostitute.

Deputy William McCoy of the Lafayette County Sheriffs Office interviewed Mr. Biggs on October 29, 2001. After being informed of his Miranda rights, Mr. Biggs provided an oral statement that was written down for him. Mr. Biggs signed the statement. He admitted to having been present with his son throughout the prior few days. He stated that on October 25, 2001, Donald Jr. came to his house and asked him to leave with him. Mr. Biggs stated that Donald Jr. had insisted he go and that he would take Mr. Biggs’ car whether “he liked it or not.” He admitted to being present at the bar in Sedalia, at the store in Tipton, and at the gas station at Emma where the crimes of the last few days had occurred. He stated that he did not know what Donald Jr. had done when he went into the gas station at Emma. Mr. Biggs further stated that he had stopped in Concordia for gas and that the first time he knew Donald Jr. had a firearm was when he fired at the police officer.

Mr. Biggs was charged by indictment with the class A felony of first degree robbery, section 569.020; the class A felony of first degree assault, section 565.050; and the unclassified felony of armed criminal action, section 571.015. The charges relate to the robbery and shooting of Michele Leach at the convenience store in Emma. Mr. Biggs was charged as an accomplice.

At trial, Donald Jr. was called as a witness for the defense. He admitted to committing the robbery of Mr. Patel in Oak Grove, the Robbery in Pettis County, the robbery in Rocheport, and the robbery of Michele Leach in Emma. Donald Jr. testified that he did not remember shooting Michele Leach. He further testified that he had forced his father to escort him throughout the crime spree and that Mr. Biggs had no knowledge that Donald Jr. was committing the robberies.

The jury returned a unanimous guilty verdict as to the first-degree robbery charge, but Mr. Biggs was acquitted of the first-degree assault and the armed criminal action charges. This appeal followed.

Instructional Error

In his first point on appeal, Mr. Biggs contends that the trial court plainly erred by giving an instruction in the disjunctive when insufficient evidence was presented to support both alternatives suggested in the verdict director for armed robbery. Mr. Biggs concedes that no objection was raised to the verdict director at trial, but he asks this court to review the instruction for plain error pursuant to Rule 30.20. Plain error is only found where the alleged instructional error demonstrates on its face substantial grounds for believing that manifest injustice or miscarriage of justice has occurred. State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003). An errant jury instruction constitutes plain error only when the appellant demonstrates that the trial court “so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury’s verdict.” Id.

Mr. Biggs’ specific claim on appeal pertains to instruction number 6, the verdict director for the charged offense of first-degree robbery, which was patterned after MAI-CR3d 304.04. The contested instruction reads as follows:

As to Count 1, if you find, and believe from the evidence beyond a reasonable doubt:
First, that on or about October 27, 2001, in the County of Saline, State of Missouri, Donald L. Biggs Jr. took United States Currency, which was property in the possession of Michele A. Leach, and
Second, that Donald L. Biggs Jr. did so for the purpose of withholding it from the owner permanently, and
Third, that Donald L. Biggs Jr. in doing so used physical force on or against Michele A. Leach for the purpose of preventing resistance to the taking of the property, and
Fourth, that in the course of taking the property, Donald L. Biggs Jr. caused serious physical injury to Michele A. Leach,
then you are instructed that the offense of robbery in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that robbery in the first degree, the defendant acted together with or aided Donald L. Biggs Jr. in committing that offense, then you mil find the defendant guilty under Count 1 of robbery in the first degree .... [emphasis added]

Mr. Biggs contends that the disjunctive phrasing of “acted together with or aided” suggests alternative theories that he either assisted Donald Jr. in the commission of the robbery or that he committed some of the conduct elements of the underlying crime. He argues that because no evidence was submitted from which the jury could conclude that he committed any of the conduct elements, it was error to submit the alternative theory to the jury. Mr. Biggs further argues that comments by the prosecution in closing argument exacerbated the prejudice of the erroneous instruction.

Mr. Biggs observes that the alternative language “acted together with or aided” is designed to resolve jury confusion in cases “where the evidence is not clear or conflicts as to whether the defendant simply aided (and did not by his own acts commit any of the conduct elements of the offense) or acted jointly with another person or persons (and by his own acts committed some or all of the conduct elements of the offense).” MAI-CR 3d 304.04, Notes on Use 4. The Notes on Use further indicate that where the conduct elements of the crime are entirely committed by another person or persons, the appropriate language to follow is “aided or encouraged.” Id., Notes on Use 5(a). Mr. Biggs draws upon the Southern District’s opinion in State v. Puig, in which the court held that utilizing the “acted together with” language in situations where no evidence exists that the defendant engaged in the conduct elements may be grounds for reversible error. 37 S.W.3d 373, 378 (Mo.App. S.D.2001).

The problem evinced by this assertion is that it complicates the underlying theory of accessory liability. A person is held accountable for a crime arising from both his own conduct and from the conduct of another for which he is criminally responsible. § 562.036. A person is criminally responsible for the conduct of another when he “aids or agrees to aid or attempts to aid such person in planning, committing or attempting to commit the offense.” § 562.041.1(2). The central tenet of accomplice liability is the notion that all who act together “with a common intent and purpose” in committing a crime are equally guilty. State v. Copeland, 928 S.W.2d 828, 847 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997). The legal effect is the same regardless whether an individual is a principal or an accomplice in the commission of a crime, and Missouri makes no distinction between principals and accessories. State v. Shockley, 98 S.W.3d 885, 890 (Mo.App. S.D.2003). An accomplice is no less guilty than a principal. Id. Because no distinction of guilt is recognized between principal and accomplice in the law, “the State [is] not required to charge [a][d]efendant as an accomplice since charging a defendant as a principal or as an aider or encourager has the same legal effect and, even if charged as a principal, the case may be submitted to the jury on the theory of accomplice liability.” Id.

The Puig decision relies upon the premise that “disjunctive submission of alternative means by which a single crime can be committed” requires the submission of evidence to support each alternative. See Puig, 37 S.W.3d at 377. Applying this rule to an instruction on accomplice liability is uniquely problematic, however. While a jury must unanimously agree as to the fact of guilt, the jury need not agree to the means by which a crime was committed. See e.g. State v. Thompson, 112 S.W.3d 57, 66 (Mo.App. W.D.2008). Whether Mr. Biggs committed all, some, or none of the conduct elements is irrelevant. He is guilty of the crime charged if he aided or acted together with Donald Jr. in the commission of the crime. As the Southern District noted in Shockley, “the purpose of the disjunctive instruction is to give the jury an opportunity to consider evidence that is unclear.” Shockley, 98 S.W.3d at 892. The court stated that the accomplice liability instruction applies when the evidence is not clear whether the defendant acted alone or with an accomplice. If the evidence is unclear as to which person committed the acts, the disjunctive use is proper since the jury could find that either person committed the act. Id. at 891-92.

Mr. Biggs observes that the Puig decision is cited within the Notes on Use to MAI-CR3d 304.04. The MAI citation does not endorse nor adopt the opinion within the Notes on Use, however. While circumstances may occur in which alternative theories of accomplice liability could require a different quantum of evidence to support them (such as theories evincing different states of mind), usual theories of aiding and abetting do not include such issues. “To make a submissible case of aiding and abetting, the evidence must show that the defendant associated himself or herself with the venture or participated in the crime in some manner.” State v. Smith, 108 S.W.3d 714, 719 (Mo.App. W.D.2003). The evidence presented in this case showed that Mr. Biggs associated himself with the venture for which he was charged and that he participated in the crime by providing essential conduct for its successful completion. The evidence supports a logical inference that he aided in providing the firearm to his son when his son exited the convenience store, acquired the firearm from the vehicle in which Mr. Biggs was seated in the driver’s seat, and reentered the store, where he used the weapon to rob and shoot the employee present. And Mr. Biggs drove the “get away” vehicle to escape the crime scene when his son exited the store and reentered the vehicle. Thus, the claimed error fails to demonstrate that a manifest injustice or miscarriage of justice has occurred. The trial court did not commit plain error in giving the instruction approved by defendant through counsel at the instruction conference and never objected to during the trial. The first point of error is denied.

Improper Closing Argument

In his second point on appeal, Mr. Biggs argues that the trial court plainly erred in failing to sua sponte declare a mistrial or instruct the jury to disregard improper comments in the State’s closing argument. Mr. Biggs alleges three distinct improprieties in the prosecution’s closing argument. First, he alleges that the prosecutor improperly told the jury that Mr. Biggs was taking advantage of the system by requesting a jury trial and presenting his defense. Second, he alleges that the State improperly implied that Mr. Biggs was wrong to exercise his rights when the victim was unable to exercise her own. Third, he alleges that the prosecutor misstated the evidence and referred to matters outside the record by implying that Donald Jr. only testified to help his father because he had lost his own case and had nothing to lose.

Because none of the allegedly improper statements were objected to at trial, Mr. Biggs requests plain error review of the claims. “Plain error relief as to closing argument should rarely be granted and is generally denied without explanation.” State v. Crowe, 128 S.W.3d 596, 600 (Mo.App. W.D.2004). “A trial court has broad discretion in controlling the scope of closing argument.” Id. (citing State v. Martin, 103 S.W.3d 255, 264 (Mo.App. W.D.2003)). A finding of plain error in the failure to declare a mistrial during closing argument requires Mr. Biggs to show more than that the argument was improper. He must also establish that the improper comments had a “decisive effect on the jury’s determination.” State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993). “The burden is on the defendant to prove the decisive significance.” Id.

Mr. Biggs points to several comments in which he claims the prosecution contrasted the legal rights of Michele Leach to his own. The State’s closing argument began by stating that Michele Leach “didn’t have a right to an attorney ... [d]idn’t have a right to have twelve people sit here and listen to witnesses. Didn’t have a right to examine and confront the witnesses.” The State then contrasted this with Mr. Biggs by stating, “the beauty of our system is that a defendant accused of a criminal charge in this country does have that right.”

In reference to the testimony of Donald Jr., the prosecutor began a similar line of argument. Stating that Donald Jr. has “nothing to lose” because “[h]e is in prison for the rest of his life,” the prosecutor argued that after being “afforded the same system that daddy is now taking advantage of, a system that was not available to Michele Leach before she was almost summarily executed, but having afforded himself of that right, having pled not guilty, which he had a right to do, having been represented by counsel and had a jury trial and been found guilty and sentenced to the rest of the life in prison, then he comes in and says daddy didn’t know anything about this.”

The prosecutor concluded his argument by stating “he’s had all the rights that this girl was not afforded. Because he’s had all these rights it’s now time for you [the jury] to do your job and obligation and that is find him guilty on all three counts.”

Mr. Biggs first argues that the prosecutor’s comments improperly criticized him before the jury for deciding to exercise his constitutional rights. The prosecutor’s comments address Donald Jr.’s credibility, a legitimate issue for discussion during closing argument. The comments also reflect an attempt to distinguish the rights properly afforded Donald Jr. after being charged with a crime from the duress inflicted upon the victim by his conduct. Taken in context, the statements highlight the seriousness of the offense and the defendant’s disregard for the law and are not reasonably interpreted as a comment critical of Mr. Biggs’ right to a jury trial. Such argument demonstrates neither manifest injustice nor a miscarriage of justice. See State v. Clayton, 995 S.W.2d 468, 481 (Mo. banc 1999), cert. denied, 528 U.S. 1027, 120 S.Ct. 543, 145 L.Ed.2d 421 (1999). Mr. Biggs has failed to demonstrate that the prosecution’s argument unfairly criticized him for exercising his right to a jury trial. Similarly the comment that Mr. Biggs was “taking advantage of’ the system of justice does not constitute impropriety and a basis for plain error.

Mr. Biggs’ final allegation of error in the State’s closing argument is that the prosecutor referred to matters outside the record and misstated the evidence at trial. Specifically, Mr. Biggs complains of the implication that Donald Jr. testified for his father after he was found guilty, implicitly attempting to exonerate his father by his testimony. During cross-examination, Donald Jr. specifically discussed the trial proceedings applicable to him that resulted from the crimes he committed. He stated that “I copped to [the Saline County charges] ... I told them I did the crime.” Mr. Biggs further notes that the prosecution did not cross-examine Donald Jr. about any of Donald Jr.’s prior statements that he was testifying to help his father only after being tried and convicted.

The prosecutor’s comments addressed Donald Jr.’s motive in testifying for his father. Motive is a legitimate subject for the prosecutor to address. Additionally, the jury was properly instructed to only rule upon the evidence as it recalled it. Instruction 16 stated “[y]ou will bear in mind that it is your duty to be governed in your deliberations by the evidence as you remember it, the reasonable inferences which you believe should be drawn therefrom.” During the closing argument when Mr. Biggs’ counsel objected to another statement, not a subject of this appeal, the jury was instructed to “remember the evidence.” Jurors are presumed to have followed the instructions given by the trial court. State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003). Consequently, any error in the argument is presumptively cured by the instructions of the court.

Mr. Biggs has faded to demonstrate that any of these claimed errors had a decisive effect on the jury. He has not demonstrated plain error in the State’s closing argument. The second point is denied.

The judgment of conviction is affirmed.

SMART, J. and ELLIS, J. concur.

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

      . Mr. Biggs admitted driving Donald Jr. to "Boonville,” which the prosecution argued was in fact the robbery in Rocheport.

      . Donald Jr. represented that he could not recall the bar he robbed in Sedalia.


source: Caselaw Access Project

author: VICTOR C. HOWARD, Judge.

license: Public Domain

text:
    Harold Ray MURPHY, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.
    No. WD 64266.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Patrick E. Richardson, Kirksville, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, Tracey A. Dujakovich, Assistant Attorney General, Kansas City, MO, for respondent.
    Before ELLIS, P.J., SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

After a trial de novo, the Circuit Court of Linn County entered a judgment sustaining the Director of Revenue’s (“Director”) revocation of Harold Murphy’s (“Murphy”) driver’s license for excessive blood alcohol content. On appeal from that judgment, Murphy claims that the trial court erred in admitting evidence of toxicology test results based on the blood sample obtained from Murphy by the arresting officer after Murphy refused consent.

As set forth below, we hold that under the plain language of section 577.037, the results of the blood test taken by the arresting officer in violation of section 577.041, were inadmissible in the license revocation proceeding under section 302.505. The trial court’s judgment is reversed.

Background

On the evening of July 25, 2003, Murphy was involved in a two-vehicle injury collision in Linneus, Missouri. When Trooper K.C. Kelly of the Missouri Highway Patrol arrived to investigate, he went to speak to Murphy, who was sitting in a yard next to the accident scene while emergency workers worked to free Murphy’s passenger and the other driver from the vehicles. Trooper Kelly noticed that Murphy’s breath smelled of alcohol, his eyes were bloodshot and glassy, his pupils appeared dilated, and his speech was slurred at times. Murphy admitted to drinking “one beer” prior to the accident. Due to Murphy’s injuries to his left arm, Trooper Kelly asked him to perform only one field sobriety test, the results of which indicated Murphy was impaired.

Trooper Kelly placed Murphy under arrest for two counts of second-degree assault. After paramedics treated Murphy’s injuries and placed him inside the ambulance, Trooper Kelly advised Murphy of his rights under the implied consent law, sections 577.020 to 577.041. Murphy refused to give a blood sample. Nevertheless, Trooper Kelly directed a paramedic to take a sample of Murphy’s blood. The results of the toxicology test on Murphy’s blood sample showed that his blood alcohol content (BAC) was .134%.

Pursuant to section 302.505.1, the Director revoked Murphy’s license for one year’ for driving a motor vehicle while his BAC was over .08 percent. Following an administrative hearing that resulted in a determination adverse to Murphy, Murphy filed a petition for de novo review of all issues under section 302.535.

On February 24, 2004, the Circuit Court of Linn County conducted a trial de novo on Murphy’s petition. No witnesses testified. The parties stipulated to admission of the certified Department of Revenue records under section 302.312, RSMo 2000, subject to Murphy’s objection to the admissibility of the blood test results contained therein. The only issue at the trial de novo was whether the toxicology results of Murphy’s blood tests were admissible to prove his BAC was over .08 percent for revocation of his license under section 302.505. The trial court entered judgment summarily sustaining the Director’s revocation of Murphy’s driver’s license. This appeal follows.

Discussion

In order to make a prima facie case for the revocation of Murphy’s license under section 302.505, the Director had the burden of proving by a preponderance of the evidence that Murphy was: (1) arrested on probable cause to believe that he was driving (2) while the alcohol concentration in his blood, breath, or urine was .08 percent or more by weight. Lawson v. Dir. of Revenue, 145 S.W.3d 443, 445 (Mo.App. W.D.2004). Murphy claims that the blood test results were inadmissible to prove the second element of the Director’s prima facie case because once he was arrested and refused to submit to the blood test, Trooper Kelly lacked authority under section 577.041 to order the paramedic to take a sample of his blood.

The Director concedes that Murphy refused consent, but she argues that Murphy improperly seeks exclusion of the toxicology test results by invocation of the exclusionary rule, a criminal law concept, in a civil proceeding. In Riche v. Director of Revenue, 987 S.W.2d 331, 333 (Mo. banc 1999), our supreme court examined the court-made exclusionary rule, which “requires that evidence obtained in violation of the fourth amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure.” (Citing United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). Riche acknowledged the applicability of the exclusionary rule in criminal prosecutions for driving while intoxicated “to deter unlawful police conduct.” Id. However, Riche also considered the fact that because “the exclusionary rule is prudential rather than constitutionally mandated, it will not be applied where its ‘substantial social costs’ outweigh its deterrent benefits.” Id. at 334. Riche concluded, “the costs of excluding unlawfully seized evidence in a proceeding pursuant to section 302.505 outweigh the potential benefits of applying the exclusionary rule. Neither the fourth amendment nor the Missouri Constitution requires that the exclusionary rule be applied to proceedings under section 302.505[.]” Id. at 336.

Riche differs factually from our case. In Riche, the driver urged the exclusion of evidence on constitutional grounds because he was stopped without probable cause. Murphy argues that his blood test was taken in violation of section 577.041, rendering it inadmissible in the license revocation proceeding because of the plain language of the applicable statutes.

Murphy does not dispute that the exclusionary rule would not be applicable in this civil proceeding to exclude the results of his blood test on constitutional grounds. However, the issue before us does not involve the consideration of a violation of Murphy’s constitutional rights. Rather, our determination of whether the trial court erred in admitting the test results on Murphy’s blood sample drawn despite his explicit refusal involves statutory interpretation.

As explained below, our legislature has promulgated statutes — sections 577.020 to 577.041 — limiting the authority of law enforcement to request the taking of a blood sample to determine an arrested driver’s BAC. Additionally, in section 577.037, our legislature specifically provided for the admissibility of test results obtained pursuant to exercise of that authority in a proceeding to suspend or revoke a driver’s license under Chapter 302. Under these statutes, the issue is not viewed in the ordinary search and seizure context. The issue is viewed solely in terms of consent. We hold that under the plain language of the relevant statutes as applied to the facts of this case, Murphy’s blood test results were inadmissible in the proceeding to revoke his license under section 302.505.

Under Missouri law, once an arrested driver explicitly negates or withdraws his implied consent to a blood test as provided for in section 577.020, then, pursuant to section 577.041.1, “none shall be given.” In other words, once the driver refuses consent to a blood test, the law enforcement official lacks authority to authorize the withdrawal of blood to test for BAC. See Blanchard v. Dir. of Revenue, 844 S.W.2d 589, 590 (Mo.App. E.D.1993) (explaining that under section 577.041, “an officer is without authority to administer the test once it is refused”).

In State v. Ikerman, 698 S.W.2d 902, 904 (Mo.App. E.D.1985), the Eastern District considered the State’s contention on appeal in a criminal proceeding that law enforcement officers “had the right to take the blood sample from [the] defendant without his consent, a warrant, or an arrest.” The court noted:

Schmerber [v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966) ] supports the general principle that the warrantless extraction of a blood sample without consent but incident to a lawful arrest is not an unconstitutional search and seizure and that the results of a blood test performed thereon are admissible in evidence.

Id. at 905 (emphasis omitted). After recognizing this general principle and finding that the trial court had not erred in determining that the defendant had been arrested, Ikerman continued:

Accepting the trial court’s view that defendant had been arrested, Schmer-ber, standing alone, would compel the conclusion that the warrantless search without consent comports with constitutional due process permitting the blood sample to be taken and to be admissible evidence where defendant has first been arrested.... [0]ur legislature responded to Schmerber by its enactment, like many other states, of an “implied consent” statute, § 577.020, which states in pertinent part:
“1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of Sections 577.010 to 577.041, a chemical test or tests of his breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition. The test shall be administered at the direction of the arresting law enforcement officer whenever the person has been arrested for the offense.”
Thus, under the aegis of Schmerber, the implied consent statute authorizing a “search,” i.e., the extraction of blood for a blood alcohol test, without a warrant or actual consent does not offend the constitutional guarantees of due process or of freedom from unreasonable search and seizure of one who has first been arrested.
However, in tandem with § 577.020, the “implied consent” statute, the Missouri legislature also enacted § 577.041, a “refusal” statute. Section 577.041 provides, in part:
“1. If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given.”
Our legislature has determined that while anyone who operates a motor vehicle on the public roads of this state impliedly consents to the taking of a chemical test as provided by § 577.020, one may expressly refuse to take the test pursuant to § 577.041. Although a driver may refuse to take the chemical test, his driving license may be automatically revoked for doing so under § 577.041.1. It is acceptance of this condition in exchange for receiving a license that constitutes the “implied consent” by which the statute is known. Thus, we conclude that a blood sample may be taken without a warrant to test for intoxication without offending federal constitutional guarantees and Missouri statutes where the defendant is under arrest and has not negated his implied consent under § 577.020 by invoking his right of refusal under § 577ML

Id. at 905-06 (emphasis added). Ikerman concluded that the trial court did not err in barring admission of the defendant’s blood test results because, as found by the trial court, “ ‘the blood sample was taken in violation of that part of Section 577.041 which says: “If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, ... then none shall be given.” ’ ” Id. at 906-07; accord State v. Smith, 134 S.W.3d 35, 36 (Mo.App. E.D.2003) (holding, “the clause, ‘none shall be given,’ in the refusal provision of the Implied Consent Law, Section 577.041 RSMo (Supp.2002), prohibits war-rantless tests authorized by law enforcement officers pursuant to Chapter 577, but does not prohibit a court from issuing a search warrant to obtain samples of a defendant’s blood for chemical testing”).

This case involves a prohibited warrant-less blood draw authorized by Officer Kelly despite Murphy’s express negation of his implied consent. The question is: In light of Riche, are the test results on the prohibited blood draw admissible in the civil proceeding to revoke Murphy’s driver’s license under Chapter 302?

Were it not for section 577.037 discussed below, we would be inclined to agree with the Director that the Riche holding is applicable to the extent that Murphy seeks invocation of the exclusionary rule for the warrantless extraction of his blood in violation of section 577.041, i.e., Murphy seeks to deter Trooper Kelly or punish him for violation of his authority to authorize a blood draw. Smith and Ikerman both involve criminal proceedings, such that the exclusionary rule would be applicable to bar introduction of the results of the tests done on blood drawn without a search warrant in violation of section 577.041 after the defendant explicitly refused consent. However, under Riche, the exclusionary rule is not applicable in civil proceedings to suspend or revoke drivers’ licenses under Chapter 302.

But, as previously stated, we are not concerned with application of the exclusionary rule for any constitutional violation of Murphy’s rights. Rather, the analysis of the plain language of sections 577.020 and 577.041 in Smith and Ikerman becomes relevant in this civil proceeding due to the plain language of section 577.037.

Section 577.037, which is part of Missouri’s Implied Consent Law (sections 577.020 through 577.041), governs the admissibility of chemical test results to establish a driver’s BAC in license suspension or revocation proceedings under Chapter 302. Section 577.037.1 provides in relevant part:

[I]n any license suspension or revocation proceeding pursuant to the provisions of chapter 302, RSMo, arising out of acts alleged to have been committed by any person while driving a motor vehicle while in an intoxicated condition, the amount of alcohol in the person’s blood at the time of the act alleged as shown by any chemical analysis of the person’s blood, breath, saliva or urine is admissi ble in evidence. ... If there was eight-hundredths of one percent or more by weight of alcohol in the person’s blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.

(Emphasis added.) Section 577.037.4, narrows this broad declaration of admissibility of BAC test results in proceedings under Chapter 302 by providing:

A chemical analysis of a person’s breath, blood, saliva or urine, in order to give rise to the presumption or to have the effect provided for in subsection 1 of this section, shall have been performed as provided in sections 577.020 to 577.0^1 and in accordance with methods and standards approved by the state department of health and senior services.

(Emphasis added.) Interpretation of section 577.037 is critical to our analysis of the issue raised by Murphy, which, from our research, appears to be an issue of first impression.

We “ascertain [our] legislature’s intent by considering the plain and ordinary meaning of the words in the statute.” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003); see also § 1.090 RSMo 2000, which states: “Words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.”

By diagramming the words used in section 577.037.4, we can better ascertain legislative intent:

A chemical analysis of a person’s breath, blood, saliva or urine, in order to [a] give rise to the presumption or [b] to have the effect provided for in subsection 1 of this section, [c] shall [d] have been performed as provided in sections 577.020 to 577.041 and [e] in accordance with methods and standards approved by the state department of health and senior services.

We consider the plain language of each diagrammed section below.

[a] “give rise to the presumption ... provided for in subsection 1” of section 577.037: This refers to the presumption that “the person was intoxicated at the time the specimen was taken,” which is not an issue in this case.

[b] “to have the effect provided for in” section 577.037.1: Black’s Law Dictionary 514 (6th ed.1990) defines, in part, the “effect” of a statute as “[t]he result ... which a statute will produce upon the existing law, as discovered from the language used[.]” The “effect” provided for in section 577.037.1 is, to deem the chemical analysis of a person’s breath, blood, saliva or urine admissible to prove a BAC in excess of .08 percent in a license suspension or revocation proceeding pursuant to the provisions of chapter 302 — the very issue in this case.

[c] “shall”: This “effect” of admissibility is followed by “shall,” meaning that for the chemical analysis of blood to be admissible to prove the amount of alcohol in the person’s blood at the time of the act alleged, there must be compliance with the provisions following, which provisions we have diagrammed as [d] and [e]. See State ex rel. Scott v. Kirkpatrick, 484 S.W.2d 161, 164 (Mo. banc 1972) (explaining, “the word ‘shall’ in its legal connotation is accepted as a mandate calling for compliance”).

[d] “have been performed as provided in sections 577.020 to 577.041”: The chemical analysis must be done in accordance with Missouri’s Implied Consent Law. This [d] requirement is joined with [e]by “and,” meaning both requirements must be complied with for [a] or [b] to occur. The key requirement in the Implied Consent Law impacting this case is the requirement in section 577.041 that once a test is refused “none shall be given.”

[e] “in accordance with methods and standards approved by the state department of health and senior services”: The cases discovered by this court concerning admissibility of chemical analyses of BAC concerned the issue of whether these methods and standards were complied with. See, e.g. Todd v. Lohman, 911 S.W.2d 321 (Mo.App. W.D.1995). That is not an issue in this case.

Applying this interpretation of section 577.037 to Murphy’s case, we conclude, based on the plain language of the controlling statutes, that Trooper Kelly’s action in having Murphy’s blood sample drawn despite Murphy’s explicit refusal under section 577.041 renders the results of the toxicology test inadmissible under section 577.037 to prove that Murphy’s BAC was in excess of .08 percent in the proceeding to revoke his license under Chapter 302.

As already set forth above, sections 577.020 to 577.041 govern the authority of law enforcement to administer chemical tests such as the blood test at issue here. Once implied consent is negated by an arrested driver’s invocation of the right of refusal under section 577.041, law enforcement’s authority to draw blood is expressly cut off by the legislative directive that “none shall be given.” In other words, the driver’s express refusal vitiates implied consent. Thus, when Trooper Kelly ordered paramedics to draw a sample of Murphy’s blood despite his refusal, the chemical analysis on the blood so drawn was not “performed as provided in sections 577.020 to 577.041,” as required by section 577.037.4 to have the effect of admissibility provided in section 577.037.1.

Exigent Circumstances

The Director further argues that even if the evidence of blood alcohol content was obtained illegally, Trooper Kelly could direct that a sample of Murphy’s blood be drawn pursuant to the exigent circumstances exception to the warrant requirement. The Director relies on Schmerber, 384 U.S. at 771, 86 S.Ct. 1826, State v. LeRette, 858 S.W.2d 816 (Mo.App. W.D.1993), and Smith, 134 S.W.3d at 36. These criminal cases are all distinguishable.

In LeRette we recognized that the war-rantless draw of blood, without consent, does not violate the Fourth Amendment’s prohibition of unreasonable seizure when exigent circumstances exist. 858 S.W.2d at 819. Exigent circumstances arise from the need to move quickly because “the percentage of alcohol in the bloodstream diminishes with time and ... the delay caused by having to obtain a warrant might result in the destruction of evidence.” Id. This judicially crafted exception to traditional Fourth Amendment protections is necessary to ensure that the purpose of the criminal law being enforced is not frustrated — the purpose being to punish drunk drivers with criminal sanctions of imprisonment and fines.

However, LeRette'⅛ analysis of the exigent circumstances exception to Fourth Amendment requirements is not applicable to our case because Murphy is not seeking the exclusion of evidence due to Fourth Amendment violations. His complaint is that the plain language of the applicable statutes requires exclusion of the test results in the proceeding to revoke his license.

Additionally, the situation is much different in the context of a civil license revocation proceeding, where the focus is on the privilege of driving rather than punishment. “Destruction of the evidence,” i.e., a diminishing alcohol content, is not necessarily a factor because if a driver refuses a blood test, as the lav? gives him the right to do, his license can still be revoked. § 577.041. A test result is not necessary. Thus, the purpose behind the law being enforced — quickly getting drunk drivers off the street — is not frustrated by disallowing the use of illegally obtained test results.

Our statutes clearly give a driver the choice to take or refuse a chemical test with the understanding that, if he refuses, his driving privilege is automatically lost. The law was fashioned so that the result of a chemical test performed in spite of a refusal is not only inadmissible in a revocation proceeding, it is unnecessary.

Conclusion

Murphy’s point on appeal is granted. The trial court erred in admitting the blood test results to establish Murphy’s BAC was in excess of .08 percent for revocation of Murphy’s driving privileges under section 802.505. The trial court’s judgment sustaining the Director’s revocation of Murphy’s driver’s license is reversed.

ELLIS, P.J., and SPINDEN, J., concur.

      . Unless otherwise noted, statutory references are to RSMo Cum.Supp.2004.

      . Section 302.505.1 provides in relevant part: "The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500[.]”

      . Section 565.060.1(4) RSMo 2000 provides: "A person commits the crime of assault in the second degree if he ... [w]hile in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself[.]” The passenger in Murphy's vehicle and the driver of the other vehicle involved in the collision both required hospital treatment for their injuries.

      .The parties also stipulated that Murphy’s driving record showed one prior alcohol-related enforcement contact during the immediately preceding five years to allow for revocation. § 302.525.2(2); Smyser v. Dir. of Revenue, 942 S.W.2d 380, 383 (Mo.App. W.D.1997).


text:
    Chris K. RITZ, Appellant, v. STATE of Missouri, Respondent.
    No. WD 62689.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Morry S. Cole, St. Louis, John Sehil-moeller, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Lisa M. Kennedy, Attorney General Office, Jefferson City, for Respondent.
    Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Chris Ritz appeals the denial after evi-dentiary hearing of his Rule 29.15 motion for postconviction relief raising nine points of error. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Von Doyle EPPERSON, Appellant.
    No. WD 64751.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Stephen S. Wyse and Anthony Lee Phillips, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Assistant Attorney General, Jefferson City, MO, for Respondent.
    ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   ORDER

PER CURIAM.

Von Doyle Epperson appeals from a judgment in the Circuit Court of Boone County denying his motion for a reduced sentence. In his sole point on appeal, Epperson argues that after his original sentence, section 558.016.7 RSMo was amended, reducing the maximum punishment from ten years to seven years for a defendant pleading to a class D felony as a prior and persistent offender.

Judgment affirmed. Rule 30.25(b).


author: ROBERT G. ULRICH, Judge.

text:
    Steven K. ORTON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 64443.
    Missouri Court of Appeals, Western District.
    June 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.

      James A. Chenault, III, Jefferson City, MO, for appellant.
    Jeffrey S. Eastman, Gladstone, MO, for respondent.
    Before EDWIN H. SMITH, C.J., ROBERT G. ULRICH and PATRICIA BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

The Director of Revenue appeals the trial court’s judgment setting aside the Director’s administrative suspension of Steven Orton’s driving privileges under section 302.505.1. The Director claims that the trial court erred in setting aside the suspension and reinstating Mr. Orton’s driving privileges because she established a prima facie case for suspension, which Mr. Orton failed to rebut. The judgment is reversed, and the case is remanded with directions.

Factual and Procedural Background

Steven Orton was stopped by Detective Charles Wood of the Platte County Sheriffs Department around midnight on May 18, 2001, after Detective Wood observed Mr. Orton’s vehicle drifting across the cen-terline and the fog line on the right side of the road. Upon approaching the vehicle, the officer detected a strong scent of alcohol. Mr. Orton admitted to drinking four beers earlier that evening.

The officer administered three field sobriety tests. Mr. Orton showed all six signs of intoxication when administered the horizontal gaze nystagmus test. During the walk and turn test, Mr. Orton was unable to keep his balance during the officer’s instructions; started the test before the instructions were completed; and during the test, stepped off the line, failed to touch heel to toe, used his arms for balance, and made an improper turn. During the last test, the one leg stand, Mr. Orton swayed while balancing and put his foot down once.

Mr. Orton was arrested for driving while intoxicated. A breath test showed Mr. Orton’s blood alcohol content was .110. The Director subsequently suspended Mr. Orton’s driver’s license under section 302.505. Following an administrative hearing in which the suspension was upheld, Mr. Orton sought a trial de novo in the circuit court under section 302.535. At the beginning of trial, Mr. Orton filed a request for findings of fact under Rule 73.01(c) identifying four specific questions.

At trial, the Director presented the testimony of the arresting officer, Detective Wood, and Mr. Orton’s breath test results. Mr. Orton presented the testimony of three witnesses. Patrick Clark, a sergeant with the Platte County Sheriffs Department, testified about maintenance of the breathalyzer and administration of field sobriety tests. William Taylor, a field sobriety test instructor, also testified about the protocol for administering field sobriety tests. Finally, John Zettl, a forensic toxicologist, testified about the breath testing procedure employed in Missouri and the accuracy and precision of the breath test results. Mr. Zettl opined that a breath test result obtained using the Missouri procedure would not be accurate or reliable to a reasonable degree of scientific certainty.

Following trial, the trial court entered judgment upholding the administrative suspension of Mr. Orton’s driving privileges. This court reversed the judgment holding that the trial court failed to make required findings of fact and remanded the case to the trial court. Orton v. Dir. of Revenue, 131 S.W.3d 827, 830-31 (Mo.App. W.D.2004). No additional evidence was presented on remand. The trial court entered judgment, which included the following findings of fact:

1. Is the breath test result obtained herein accurate to a reasonable degree of scientific certainty?
A. No
2. Is the breath test result obtained herein reliable to a reasonable degree of scientific certainty?
A. No
3. Does the evidentiary breath testing equipment and protocol utilized assume a breath temperature of 34 Celsius plus or minus .2 Celsius?
A. Yes
4. Is a breath temperature of 34 Celsius plus or minus .2 Celsius certain to a reasonable degree of scientific certainty?
A. Vague question

The trial court further found that Mr. Orton “was arrested upon probable cause that he was driving in violation of an alcohol related offense, however [Mr. Orton] is found NOT to have been driving with a BAC of at least .10 percent by weight.” The trial court thus ordered that the Director’ administrative suspension of Mr. Orton’s driver’s license be set aside and held for naught. This appeal by the Director followed.

In her sole point on appeal, the Director claims that she established a prima facie case for suspension of Mr. Orton’s driver’s license, which Mr. Orton failed to rebut.

Standard of Review

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), governs review of a driver’s license suspension or revocation case. Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). As such, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Murphy, 536 S.W.2d at 32. Appellate authority defers to the trial court’s determination of credibility. Walker, 137 S.W.3d at 446.

Section 302.505 authorizes the suspension or revocation of a person’s driver’s license for driving while intoxicated. It provides in pertinent part:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was ten-hundredths of one percent or more by weight....

§ 302.505.1. A driver aggrieved by a decision of the department may seek a trial de novo. § 302.535.1; Verdoom v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). At trial, the burden of proof is on the Director to establish grounds for the suspension or revocation by a preponderance of the evidence. Id. Applying the statutory scheme, the Director must initially present evidence to establish (1) probable cause to arrest the driver for violating an alcohol related offense and (2) the driver’s blood alcohol concentration of .10 percent or greater. Verdoorn, 119 S.W.3d at 545. “This evidence creates a presumption that the driver was intoxicated.” Id.

Blood Alcohol Content

In her sole point on appeal, the Director challenges the trial court’s finding that Mr. Orton’s BAC was not .10 or more. She contends that Mr. Orton failed to adduce sufficient evidence to rebut her pri-ma facie case that Mr. Orton was legally intoxicated.

Breathalyzer test results are essential to establish a prima facie case under section 302.505. Lewis v. Lohman, 936 S.W.2d 582, 585 (Mo.App. W.D.1996). A Breathalyzer is generally accepted as a reliable device for the measurement of blood alcohol content. Id. The Director can make a prima facie case based on a breath test only if she shows that the test was “performed according to the methods and devices approved by state department of health by a licensed medical personnel or by a person possessing a valid permit issued by the state department of health for this purpose.” § 577.026.1, RSMo 2000. See also Robison v. Dir. of Revenue, 837 S.W.2d 42, 43 (Mo.App. W.D.1992).

After the Director presents a prima facie case, the driver is entitled to rebut it with evidence that his blood alcohol content did not exceed the legal limit. Verdoorn, 119 S.W.3d at 545. The driver may present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. Id. at 546. The driver’s burden is one of production — not persuasion since the Director retains the burden of proof throughout the proceeding. Id.

The parties do not dispute that the Director established a prima facie case that Mr. Orton’s BAC was .10 percent or greater. The Breathalyzer used to test Mr. Orton’s BAC, the Data Master, was approved by the Department of Health. 19 CSR 25-30.050(1). Additionally, the arresting officer testified that he possessed a Type III operator’s permit, observed Mr. Orton for fifteen minutes prior to administering the breath test, and followed the Department of Health’s checklist in conducting the test. The Director made a prima facie case. Robison, 837 S.W.2d at 43.

Mr. Orton attempted to rebut the presumption that he was legally intoxicated with the testimony of John Zettl, a forensic toxicologist. Mr. Zettl testified that the breath testing procedure employed in Missouri does not require duplicate tests or testing against a known standard at the time of the test, both of which would determine the accuracy of the test at the time of the test. He also testified that the testing procedure in Missouri does not require that the driver’s breath temperature be taken at the time of the test. He testified that the Breathalyzer employed in this case assumes a breath temperature of 34 Celsius but that a study in Alabama concluded that the average breath temperature is closer to 35 Celsius. Mr. Zettl explained that if one’s breath temperature is raised one degree Celsius, which is about four or four and a half degrees Fahrenheit, his breath alcohol test result would be about six to six and a half percent higher. Mr. Zettl testified that Missouri’s failure to require duplicate testing, testing against a known standard at the time a test is administered, and taking the driver’s breath temperature affects the accuracy and precision of the breath test result. Thus, Mr. Zettl opined that a breath test result obtained using the Missouri procedure would not be accurate or reliable to a reasonable degree of scientific certainty.

Mr. Zettl, however, did not testify to a reasonable degree of scientific certainty that Mr. Orton’s BAC was below the test result of .110 percent at the time of the stop and, more importantly, that Mr. Orton’s BAC was below the legal limit of .10 percent. Although only one breath test was performed, nothing in the record demonstrates that the Breathalyzer was malfunctioning, that the test was improperly administered, or that something about Mr. Orton himself caused the result to be inaccurate. Similarly, Mr. Zettl did not testify that Mr. Orton’s breath temperature was not 34 Celsius. To infer from the evidence that Mr. Orton’s BAC was anything other than .110 percent, which the breath test concluded, or that Mr. Orton’s breath temperature was anything other than 34 Celsius is speculative. While a trial court in a civil ease is free to rely on inferences from the evidence in determining whether a party has met his burden of proof, the inferences must be reasonable, and the trial court may not rely on guesswork, conjecture, or speculation. Testerman v. Dir. of Revenue, 31 S.W.3d 473, 483 (Mo.App. W.D.2000), overruled on other grounds by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543 (Mo. banc 2003). And even if Mr. Orton’s actual breath temperature is assumed to have been 35 Celsius, causing his breath test result to have been overstated by six to six and a half percent, his BAC would still have been above the legal limit. See Walker, 137 S.W.3d at 448. Mr. Zettl’s testimony was, therefore, insufficient to rebut the Director’s prima facie case that Mr. Orton was legally intoxicated. Mr. Orton failed to present any other evidence that his BAC was below the legal limit. Thus, insufficient evidence was presented to rebut the presumption of intoxication established by the Director’s prima facie case.

Probable Cause to Arrest

Next, Mr. Orton argues that even if he failed to rebut the presumption established by the Director’s prima facie case that his BAC was .10 percent or greater, the trial court erred in finding that probable cause existed to arrest him for driving while intoxicated. He claims that the evidence revealed that the field sobriety tests were administered improperly thus compromising the validity of the officer’s conclusions as to the significance of the results.

Probable cause exists when the facts and circumstances would warrant a person of reasonable caution to believe that an offense has been or is being committed. Testerman, 31 S.W.3d at 476 (quoting Smith v. Dir. of Revenue, 13 S.W.3d 700, 705 (Mo.App. W.D.2000)). Probable cause is determined in relation to the circumstances as they would have appeared to a prudent, cautious, and trained police officer at the time of the arrest. Id. (quoting Smith, 13 S.W.3d at 705).

In this case, Detective Wood observed Mr. Orton’s vehicle crossing the centerline and the fog line on the right side of the road. Upon approaching the vehicle, the officer detected .a strong scent of alcohol, and Mr. Orton admitted to drinking four beers earlier that evening. The officer administered three field sobriety tests. Mr. Orton showed all six signs of intoxication during the first test, the horizontal gaze nystagmus test. During the walk and turn test, Mr. Orton was unable to keep his balance during the officer’s instructions; started the test before the instructions were completed; and during the test, stepped off the line, failed to touch heel to toe, used his arms for balance, and made an improper turn. Finally, during the last test, the one leg stand, Mr. Orton swayed while balancing and put his foot down once during the test.

Mr. Orton contends that the evidence demonstrates that the field sobriety tests were improperly administered and, thus, they cannot provide a basis for a probable cause determination. At trial, Mr. Orton disputed whether the arresting officer complied with the standard testing procedure for the horizontal gaze nystagmus test by introducing evidence that the officer omitted any mention in his deposition of one step of the test although he confirmed the step at trial. Mr. Orton also challenged the officer’s testimony regarding the walk and turn test and the one leg stand because the officer had no independent recollection of Mr. Orton’s performance on the two tests aside from his notes made on the arrest report. Mr. Orton’s challenges to the field sobriety test, however, were all matters of credibility for the trial court to determine, and this court will defer to those determinations. Walker, 137 S.W.3d at 446. The evidence was, therefore, sufficient to support the trial court’s finding that probable cause existed to arrest Mr. Orton for DWI. Poage v. Dir. of Revenue, 948 S.W.2d 194, 196 (Mo.App. E.D.1997).

Because the Director established a pri-ma facie case under section 302.505.1, which Mr. Orton failed to rebut, the judgment of the trial court reinstating Mr. Orton’s driving privileges was erroneous. The judgment of the trial court is reversed, and the case is remanded with directions to the trial court to enter its judgment affirming the Director’s suspension of Mr. Orton’s driver’s license.

EDWIN H. SMITH, C.J. and BRECKENRIDGE, J. concur.

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

      . The Director also briefly argues that Mr. Orton failed to object to the admission of the breath test results. Mr. Orton, however, did not challenge the admissibility of the results; rather, he attempted to rebut the Director’s prima facie case at trial by arguing that the results did not provide sufficient evidence that his BAC was .10 percent or greater at the time of his arrest. Objection to the test results was, therefore, unnecessary. Orton, 131 S.W.3d at 830; Lewis v. Lohman, 936 S.W.2d 582, 585 (Mo.App. W.D.1996).

      . This case is unlike Endsley v. Dir. of Revenue, 6 S.W.3d 153, 165 (Mo.App. W.D.1999), overruled on other grounds by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543 (Mo. banc 2003), where conflicting or contradictory evidence was presented and resolved by the trial court regarding an underlying fact on which the admission of the breath test result was based.

      . The Director contends that because Mr. Or-ton did not file a cross appeal pursuant to Rule 81.04(b), he is precluded from seeking relief from the part of the trial court's judgment regarding probable cause. A respondent, however, may attack the erroneous rulings of the trial court in order to sustain a judgment in his favor. Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 50 (Mo.App. W.D.2004).


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Kevin D. WOODS, II, Appellant.
    No. WD 63984.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Patrick W. Peters, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Andrew Hassell, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM:

Appellant Kevin Woods was convicted of two counts of second-degree murder under an accomplice liability theory. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).


author: BOOKER T. SHAW, Judge.

text:
    In the Interest of S.M.H.
    No. ED 85289.
    Missouri Court of Appeals, Eastern District, Division one.
    Aug. 2, 2005.

      Mary Elizabeth Davidson, St. Louis, MO, for appellant.
    Gary Lee Gardner, Jefferson City, MO, for respondent.
   BOOKER T. SHAW, Judge.

S.M.F. (“Mother”) appeals from the trial court’s judgment terminating her parental rights to her daughter, S.M.H. (“Child”). Mother raises two points on appeal. In her first point, Mother claims the trial court erred in denying her application for change of judge pursuant to Rule 126.01. In her second point, Mother argues the trial court erred in terminating her parental rights because the Division of Family Services (“the Division”) failed to present clear, cogent, and convincing evidence that grounds for termination existed pursuant to Section 211.447, RSMo 2000. We affirm in part, reverse and remand in part.

A large portion of the factual background and procedural history of this case has been judicially determined by the Missouri Supreme Court in In the Interest of S.M.H., 160 S.W.3d 355 (Mo. banc 2005) (“S.M.H. I”), where T.H., Jr. (“Father”) appealed the termination of his parental rights with respect to Child. The relevant portions of this opinion are as follows:

[Mother] moved in with [Father], who was 35 years old, when she was 15 years old, and they began a sexual relationship when she was 16 years old. She became pregnant and gave birth to a daughter, [Child,] on October 6, 2001, at age 17. On April 27, 2002, the Division filed a petition under Section 211.081, RSMo. 2000, alleging that [Child] was without the proper care, custody, and support because Mother had a mental illness, was suicidal, and had threatened to kill [Child]. The petition further alleged that Father did not take Mother’s threats against [Child] seriously and that she was in need of proper care. The Division took protective custody of [Child], and she was placed in foster care. On June 17, 2002, after trial, the court took jurisdiction of [Child]. She was placed in the Division’s temporary legal and physical custody, but the court determined that Father was an appropriate placement for [Child] and she was placed with him. [Michelle] Dean began providing childcare for [Child] because Father’s work schedule caused him to pick her up late at night and return her early in the morningf.] [Father] placed her in the care of Mrs. Dean and her husband the next month. Father would regularly visit [Child] at the Deans.
The court held a review hearing on October 22, 2002. It entered an order directing that [Child] remain in the Division’s custody for appropriate placement, “which may or may not be the Father, which is to be determined by the Family Support Team.” The Division initially placed [Child] in foster care, but by consent of all parties, in December 2002 an order was entered placing [Child] back in Father’s custody “so long as he resides with the Deans.” Father and [Child] moved into the Dean residence, although Father also spent time at the home of a friend.
Another review hearing was held on February 6, 2008. The Division filed a permanent plan summary, which found progress on compliance with the social service plan and recommended that [Child] return to the legal custody of Father and Mother. On February 13, 2008, after conducting a permanency plan hearing retaining jurisdiction and ordering the Division to continue its reunification efforts, the court entered a permanency review order, which directed the Division to make a recommendation on permanent placement of [Child].
On June 5, 2003, a family support team meeting was held, and the Division prepared a new permanency plan. That plan indicated that Father and Mother had successfully negotiated the steps necessary to retake full custody of [Child]. It stated that Father and Mother had fully completed the terms of their social service plans. It recommended that full legal and physical custody of [Child] be returned to Father and legal custody to Mother, that the Division terminate protective custody, and that the court terminate jurisdiction over [Child].
A hearing was scheduled on the plan for June 25, 2003, at which it was anticipated that Father would regain full custody of [Child]. However, in the week after the Division’s recommendation, the Deans let Father know that they wanted to keep [Child] with them but wanted him to come to the house only on a schedule worked out with them in advance, rather than just having him “popping” in and out. He told them that if they kept his daughter, then he wanted to be able to come and go to see her, and in fact the then-governing court order specifically provided that he was [Child]’s custodian, not the Deans, making his objection to being told that the Deans wanted to limit him to scheduled visits with [Child] understandable.
Unwilling to accept being put on a schedule, Father told the Deans that he and his daughter were a “package deal” and, as they would not take the package, he moved his daughter out of their residence and brought her to Mother’s house to live. Nonetheless, recognizing that the Deans and his daughter were close, he permitted [Child] to visit with the Deans thereafter.
Father moved [Child] without informing the Division of the Dean’s insistence that he only come to the house on a schedule to see [Child] and without seeking permission to move with her to a new location. Father later explained that, because at the June 5, 2003, family support team meeting Mother was classified as an appropriate placement and permitted unsupervised daytime visitation, he thought it would be all right for him to bring [Child] back to live with Mother so she could help him care for their daughter. He also admitted that he knew the standing order officially still provided otherwise, however.
The Division did not learn of Father and [Child]’s move to Mother’s residence until Michelle Dean told caseworkers about it after [Child] had been living with Mother for about two weeks. The Division then learned that Mother allowed [Child] to visit the Deans for a weekend in June while Mother went on a float trip, and that, when Mother came to pick up [Child], she decided to leave her in the Dean’s care temporarily. Nothing in this record indicates that Mother threatened [Child] or put her in any danger during this period, nor does any evidence indicate that Mother engaged in other conduct showing she was not an appropriate custodian for her daughter. But, because the standing court order did not authorize Mother to have overnight visits, at the June 25, 2003, hearing the court placed [Child] in the custody of the Deans and permitted Father only limited visits each week, until a further hearing could be held on August 11, 2003, and ordered the Division to file a petition in the probate division seeking guardianship by the Deans within thirty days from that order.
No new report was prepared by the August 11 hearing; the last one prepared was the report of June 5, 2003, recommending termination of court jurisdiction and returning custody to Mother and Father. Nonetheless, although no other events relevant to disposition occurred between June 25 and the August 11, 2003, hearing, the Division withdrew its recommendation of permanent placement with Father and Mother and release of the court’s jurisdiction over [Child]. At the August 11 hearing the court directed the Division to file a petition to terminate parental rights, finding that the permanent plan that would best serve [Child]’s interests was termination.
As directed by the court, the Division filed a petition to terminate parental rights pursuant to [S]ection 211.447, on September 8, 2003, under the same case number. The petition alleged as to Mother that she had failed to support [Child], that she had a mental condition — depression—that rendered her unable to provide for her child’s care, custody, and control, and that she was unfit to be a party to the parent-child relationship, and that the conditions that led to assumption of jurisdiction still remained. It then listed seven ways in which Mother allegedly had failed to make progress on social service plans, failed to secure housing, provide financial support, and so forth.

S.M.H. I, 160 S.W.3d at 362-64. Additional facts specifically relating to Mother’s conduct will be discussed below in more detail as we analyze her points on appeal.

The trial court found all statutorily grounds asserted in the petition against Mother were supported by clear, cogent, and convincing evidence. The court terminated Mother’s parental rights. This appeal follows.

In her first point on appeal, Mother claims the trial court erred in denying her application for change of judge pursuant to Rule 126.01. Particularly, Mother argues the petition to terminate parental rights was a new civil action, and therefore, Rule 126.01 authorized a new application for change of judge. Mother claims the application was timely filed, and as a result, the trial court did not have jurisdiction to try or determine the merits of the petition to terminate. The Division asserts that Mother does not have standing to raise this issue. Specifically, the Division argues Mother never requested a change of judge, did not join in Father’s request for change of judge, and never raised the issue at trial. We agree with the Division.

The record reflects Father filed an application for change of judge pursuant to Rule 126.01(c) after the case was set for trial. Mother did not file a separate motion, nor did she join in Father’s application. Even if we could construe Father’s application for change of judge as including Mother’s interests, the Missouri Supreme Court has already ruled on this issue. The Court held a petition to terminate parental rights was a “supplemental petition,” and therefore, because Judge Frawley was the same judicial officer who heard previous proceedings in the case, Father’s motion for change of judge was untimely. S.M.H. I, 160 S.W.3d at 361. Point I is denied.

In her second point on appeal, Mother argues the trial court erred in terminating her parental rights as to Child. Mother argues the judgment was not supported by clear, cogent, and convincing evidence on any of the statutorily asserted grounds for termination. The trial court found termination of Mother’s parental rights were supported on the following grounds: (1) Mother had abused and neglected Child pursuant to Section 211.447.4(2); (2) the conditions which caused the trial court to assume jurisdiction over Child continue to exist, and/or cannot be remedied at an early date to permit reunification pursuant to Section 211.447.4(3); (3) Mother is unfit to be a party to the parent-child relationship because of her consistent pattern of abuse, because of specific conditions which are of a duration and nature rendering Mother “unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental and emotional needs of [Child]” pursuant to Section 211.447.4(6); and the termination of parental rights was in the best interest of Child pursuant to Section 211.447.6.

We will affirm the judgment of the trial court terminating parental rights unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In the Interest of P.D., 144 S.W.3d 907, 910 (Mo.App. E.D.2004). We view the facts and reasonable inferences in the light most favorable to the trial court’s decision and defer to the trial court’s superior ability to determine the credibility of witnesses. In the Interest of E.T.C., 141 S.W.3d 39, 45 (Mo.App. E.D.2004).

A trial court can terminate parental rights only if the grounds for termination are supported by clear, cogent, and convincing evidence. In the Interest of M.D.R., 124 S.W.3d 469, 476 (Mo. banc 2004). “Clear, cogent, and convincing evidence instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In the Interest of A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004). “The court’s primary concern in cases involving the termination of parental rights is the best interest of the child.” E.T.C., 141 S.W.3d at 45. Satisfaction of one statutory ground for termination is sufficient to terminate parental rights if termination is in the child’s best interest. In the Interest of E.L.B., 103 S.W.3d 774, 776 (Mo. banc 2003).

“A parent’s right to raise [his or] her children is a fundamental liberty interest protected by the constitutional guarantees of due process.” In the Interest of K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). Therefore, statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship. Id. “The termination of parental rights is the exercise of an awesome power, and should not be done lightly.” P.D., 144 S.W.3d at 910.

The first ground the trial court relies upon to terminate Mother’s parental rights is that Mother abused and neglected Child. Section 211.447.4(2) states a petition to terminate parental rights may be filed when it appears the child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:

(a)A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;
(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or
(d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child’s physical, mental, or emotional health and development;

Section 211.447.4(2).

When terminating parental rights on the ground that a child has been abused or neglected, the trial court must enter findings with respect to each condition listed in the statute, even if only to state the condition is irrelevant and the reasons why. In re A.M.C., 983 S.W.2d 635, 638 (Mo.App. S.D.1999).

In this case, the trial court found Child had been abused or neglected pursuant to Section 211.447.4. Specifically, the trial court stated Mother had “repeatedly and continuously failed, though physically or financially able, to contribute to the costs of care and maintenance for [Child] and to provide [Child] with the care and control necessary for her physical, mental and emotional health and development.” The trial court did not make any explicit findings with respect to this ground for termination, but merely tracked the language verbatim from the statute.

The financial support of a minor child is a continuing parental obligation. In the Interest of Q.M.B., 85 S.W.3d 654, 660 (Mo.App. W.D.2002). Even if a parent is unable to pay for all of his or her child’s financial needs, the parent has a duty to contribute as much as he or she reasonably can. In Interest of K.L., 912 S.W.2d 456, 461 (Mo.App. W.D.1998). “Evidence that a parent has provided some contribution, even if not fully sufficient for support, demonstrates the parent’s intent to continue the parent-child relationship and militates against termination.” S.M.H. I, 160 S.W.3d at 367.

The trial court made no explicit findings, and there was no evidence introduced at trial, with respect to Mother’s financial contribution to Child. Nowhere in the record does it indicate whether Mother contributed to the costs of Child’s care and maintenance, nor was there any evidence presented with regard to her financial ability to do so. This is in contrast to the trial court’s specific factual findings with respect to Father’s alleged lack of financial support where the court found Father did not pay the full amount of the foster mother’s daycare expenses for , Child. Thus, we find the record does not support this basis for termination under the statute.

The second ground the trial court relied upon for terminating Mother’s parental rights, commonly referred to as a “failure to rectify,” In the Interest of Q.D.D., 144 S.W.3d 856, 860 (Mo.App. S.D.2004), was that the conditions which led to the assumption of jurisdiction still persist and/or conditions of a potentially harmful nature continue to exist that resulted in Child being in foster care on a consistent basis since April 25, 2002. Section 211.447.4(3). Under these circumstances, when a petition to terminate parental rights is filed, the court shall consider and make findings on the following factors:

(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;

Id. Courts have required that a finding of failure to rectify sufficient to support termination under Section 211.447.4(3) be based upon a determination that conditions of a potentially harmful nature continued to exist as of the termination, rather than a mere finding that conditions that led to the assumption of jurisdiction still persisted. In the Interest of T.A.S., 62 S.W.3d 650, 656-57 (Mo.App. W.D.2001).

We begin our analysis by examining whether the conditions that existed at the time Child was taken into protective custody continue to exist. The trial court’s judgment fails to discuss any of the conditions that existed at the time the Child was taken into protective custody, but merely tracks the language of Section 211.447.4(3). The court’s conclusory findings regarding Mother’s failure to rectify are insufficient because they fail to specify which conditions led to the assumption of jurisdiction and which of these conditions still remained at the time of trial. In the Interest of C.F.C., 156 S.W.3d 422, 430 (Mo.App. E.D.2005).

After its conclusory finding that the conditions which led to the assumption of jurisdiction still persist, the trial court proceeded to discuss the factors listed under Section 211.447.4(3). The trial court made specific findings only with respect to subsections (a) and (b). First, the trial court found Mother made insufficient progress under the terms of the social service plan. Second, the trial court found the Division was unsuccessful in its efforts to assist Mother in adjusting her circumstances and conditions to be able to provide a proper home for Child on a continuing basis. The trial court stated at the end of its judgment that it had “considered all subsections of Section 211.447.4 RSMo and Section 211.447.6 RSMo. and except as expressly provided herein, finds the subsections irrelevant because no evidence of their applicability was presented.” Therefore, we assume by that statement the trial court disregarded as irrelevant Mother’s alleged mental condition, which was the reason the trial court initially assumed jurisdiction over Child, because the trial court did not expressly discuss it in the judgment.

After Child was taken into protective custody, Mother entered into a social service plan. Mother was ordered to complete the following tasks: (1) initiate and request visitation with Child, no less frequently than semi-monthly; (2) obtain and maintain appropriate housing; (3) enroll in and successfully complete parenting skills training; (4) submit to a psychological evaluation, including a parenting assessment, and comply with any recommended treatment; (5) enroll in and successfully complete family violence education; (6) attend all medical and psychiatric appointments; and (7) enroll in and successfully complete individual counseling.

The court acknowledged Mother had completed the parenting skills training, undergone a psychological evaluation and a psychiatric evaluation, but she had not followed through on the court-ordered individual counseling. Further, evidence was presented that Mother obtained housing and employment, but was unable to maintain them. The caseworker testified that Mother had three different jobs and six different residences since Child was placed with the Division. The trial court also noted that Mother had not maintained or maximized her visitation with Child.

A parent’s efforts to comply with a social service plan will provide the court with an indication of the parent’s likely efforts in the future to care for the child. K.A.W., 133 S.W.3d 1, 10 (Mo. banc 2004). A lack of effort to comply with a plan, or a lack of success despite effort, can predict future problems. Id. at 10. However, a parent’s failure to comply with a written service plan does not, in itself, constitute a ground for terminating parental rights. In the Interest of S.J.H., 124 S.W.3d 63, 67 (Mo.App. W.D.2004). Noncompliance is merely a factor to consider in deciding whether the grounds set forth in Section 211.447.4(3) exist. Id. The statute requires the trial court to consider “the extent to which the parties have made progress in complying with [the service agreement’s] terms,” not whether the compliance was full or substantial. Id. at 68 (quoting Section 211.447.4(3)(a)).

Mother’s psychological and psychiatric evaluations revealed a history of depression and borderline personality, with recurrent suicidal gestures and chronic suicidal ideations. Mother underwent some counseling while Child was in protective custody. As of June 2003, the Division determined Mother was in full compliance with her obligation to complete individual counseling. At the time of the termination hearing, the case worker testified Mother was not currently attending counseling sessions.

A parent’s mental condition can support termination of parental rights, but only if it rises to the level described under the statute. A mental or emotional condition must be analyzed in three prongs to make an adequate finding:

(1) documentation — whether the condition is supported by competent evidence;
(2) duration — whether the condition is permanent or such that there is no reasonable likelihood that it can be reversed; and (3) severity of effect— whether the condition is so severe as to render the parent unable to knowingly provide the child necessary care, custody or control.

K.A.W., 133 S.W.3d at 13.

“Past behavior can support grounds for termination, but only if it is convincingly linked to predicted future behavior.” Id. at 9-10. There must be some explicit consideration of whether the past acts provide an indication of the likelihood of future harm. Id. at 10. We recognize findings supporting earlier determinations are not irrelevant, but they must be updated to address the extent to which they describe the time of the termination and the potential for future harm. Id.

There was no medical evidence presented in the evaluations or at trial that Mother’s depression was permanent, or that it would significantly interfere with her ability to knowingly provide for Child’s future necessary care, custody and control. Nor was there any evidence presented as to the severity of Mother’s depression. In fact, the only evidence presented at the trial regarding Mother’s mental condition was that she was not currently attending counseling sessions. However, it is not clear whether Mother was required to continue those counseling sessions because the Division indicated Mother had fully complied with the terms of the social service plan in June 2003.

Moreover, there was no evidence presented at the hearing that Mother harmed or threatened to harm Child since she was taken into protective custody. Child’s foster mother testified she allowed Mother unsupervised visits with Child, where Mother took Child from the home during those visits. The foster mother indicated she never saw anything about Child’s behavior after the visits that made her concerned about Child’s well-being while in Mother’s care. Moreover, the Missouri Supreme Court found “[n]othing in this record indicates that Mother threatened [Child] or put her in any danger during this period, nor does any evidence indicate that Mother engaged in other conduct showing she was not an appropriate custodian for her daughter” when Child was in Mother’s custody for a brief period in June 2003. The trial court failed to make any explicit consideration of whether Mother’s past behavior provided an indication of the likelihood of future harm to Child. Thus, we fail to see a “convincing link” between Mother’s past emotional issues and her predicted future behavior.

With respect to the other grounds where the evidence supported the fact that Mother had not fully complied with the social services plan, there was no evidence presented about the changes that occurred from June 2003 and when the petition to terminate parental rights was filed. The Division found Mother in full compliance with all of the terms of the social service plan as of June 2003 and was “fit, willing and able and complied with the court order.” As a result, the Division requested that the court terminate jurisdiction over Child and return her to Mother and Father. The Missouri Supreme Court found that despite the fact that “no other events relevant to disposition [had] occurred between June 25 and the August 11, 2003, hearing, the Division withdrew its recommendation of permanent placement with Father and Mother and [recommendation of] release of the court’s jurisdiction over [Child].” S.M.H. I, 160 S.W.3d at 364. The Division did not offer any explanation as to why it withdrew its recommendation, nor did the trial court address the issue. The record is devoid of any evidence which was updated to address the extent to which they describe the circumstances at the time of the termination and the potential for future harm to Child.

The trial court did not discuss how Mother’s progress, or lack of progress, with the social service plan impacted her future ability to parent Child. It is not clear how Mother’s employment or living arrangements were a potential harm to Child at the time of the termination or would be in the future. See C.F.C., 156 S.W.3d at 431 (reversed and remanded, in part, based on the court’s failure to discuss how progress, or lack thereof, impacted the future ability to parent). The evidence in the record fails to establish the “convincing link” between Mother’s past behavior and the impact it will have on her future ability to parent Child. We find there was insufficient evidence to support this ground for termination.

The third ground the trial court relied upon to terminate Mother’s parental rights was a finding that Mother was unfit. Section 211.447.4(6) states a petition to terminate parental rights may be filed when “[t]he parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse.... ” The trial court will look to see whether there are “specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.” Id.

The trial court’s judgment makes a verbatim recitation of the statutory language provided in Section 211.447.4(6) with respect to its findings that Mother is unfit,. The trial court made no factual findings whatsoever with respect to any of the “specific conditions directly relating to the parent and child relationship” that would render Mother unfit. Conclusory findings that merely track the language of the statute are insufficient. C.F.C., 156 S.W.3d at 430. Further, as we have determined with respect to whether Mother abused or neglected Child, we find no evidence to support the finding that Mother poses a future harm to Child or that she is unable to appropriately provide for Child’s ongoing physical, mental or emotional needs. Thus, the record before us does not support this basis for termination.

Finally, the trial court found that termination of Mother’s parental rights was in the best interest of the child. Section 211.447.5 allows for termination of parental rights when the court finds the termination is in the best interest of the child and when it appears by clear, cogent, and convincing evidence that grounds exist for termination pursuant to Subsection 2, 3, or 4 of Section 211.447. We reach the issue of the best interests of the child only after making a determination that one or more of the statutory grounds for termination of parental rights exist. In re T.A.S., 32 S.W.3d 804, 815 (Mo.App. W.D.2000). We need not reach this issue in light of our holding that none of the statutory grounds relied upon for termination exist. Point II is granted.

Based on the foregoing reasons, there was insufficient evidence to support termination of Mother’s parental rights to Child. The judgment with respect to the termination is reversed and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J„ Concur.

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