author: PHILLIP R. GARRISON, Judge.

text:
    Danny Bill STOTT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26748.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 24, 2006.
    James F. Speck, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

Danny Bill Stott (“Movant”) appeals the denial, after an evidentiary hearing, of his post-conviction motion, filed pursuant to Rule 29.15. He had been convicted by a jury of one count of statutory sodomy pursuant to Section 566.062 and two counts of child molestation pursuant to Section 566.067. He was sentenced to fifteen years on statutory sodomy and ten years on both child molestation counts, to run concurrently. Movant appealed the conviction and sentences which were affirmed by this court in a written order. See State v. Stott, No. 24083 (S.D. filed August 26, 2002). Movant filed his timely motion under Rule 29.15, which was later amended by appointed counsel. Following an evi-dentiary healing, the motion court entered its findings of fact and conclusions of law denying Movant’s motion from which he appeals. We affirm.

Viewed in the light most favorable to the verdict, the evidence at trial revealed the following. Between June 1, 1998, and June 3, 1999, victim (“A.H.”), born August 11, 1992, who was then six years old, lived with her parents, Deeanna (“Deeanna”) and Larry Hanger, and her three siblings (collectively referred to as the Hangers) in Springfield, Missouri. Movant, who lived across the street, became acquainted with the Hangers, and was especially friendly with A.H. Both A.H. and her brother (“Z.C.”) would go over to Movant’s house on occasion, with A.H. “sneaking” over to Movant’s house eight to twelve times a week on her own. When A.H. would visit Movant at his house, he would give her candy, and she would sit on the couch and watch TV. While at Movant’s house, he touched A.H. on her “front private” part and her “back private” part underneath her clothes with his hand while sitting on the couch with her.

Janice Crane (“Crane”), Movant’s parole officer, visited Movant in his home during the time period of June 1, 1998, and June 3, 1999. She saw candy, toys such as dolls and stuffed animals, and games set on a love seat in Movant’s living room. On May 21, 1999, at around 7:00 p.m., Crane was at Movant’s home, when A.H. came to the front door and said, “Danny, let me in.” Movant told her to “go away,” but Crane asked A.H. if she came to Movant’s house to play and she said, “Yes.” A.H. told Crane that she came to play with Movant’s toys and then told Crane her name and where she lived. Movant moved from that residence shortly after that visit.

On June 3,1999, A.H. told Deeanna that “Danny had touched her pee-pee.” Without asking A.H. any further questions, Deeanna called 911. Police Officer Zanet-ta Gann (“Officer Gann”) talked with A.H. when she arrived at the Hanger residence. When Officer Gann asked A.H. what had happened, A.H. said, “He touched my private parts.” When Officer Gann asked her how, A.H. told her that he had placed his hands inside of her underwear. A.H. also told Officer Gann that “he” played “sex movies” and that he had threatened to kill her. When Officer Gann asked A.H. who “he” was, A.H. pointed to the house across the street where Movant had lived and said, “Danny.” Deeanna asked A.H. to show the officer how many times Movant had touched her and A.H. held up both hands with her fingers up. Officer Gann asked A.H. if she meant the number ten and she said, ‘Tes.” A.H. told the officer that she was inside Movant’s house when the touching occurred and that she and Movant were alone. She said that sometimes another girl, Cindy, was with her at Movant’s house, but that Movant never touched her while Cindy was present.

A.H. was referred to the Child Advocacy Center (“CAC”) where she met with Angela Bryant (“Bryant”), a child interviewer. A.H. told Bryant that during visits to Mov-ant’s home, he had touched her “pee-pee” with his hands, underneath her clothes, ten times. She also said that Movant would put his finger inside her “pee-pee” and that it hurt. A.H. told Bryant that Mov-ant had touched her “pimples” (breasts) with his fingers under her clothes and that also hurt. According to A.H., Movant had her watch “sex movies” with him that had adult people with their clothes off, kissing each other, which Movant kept in his “favorite” closet in his bedroom along with guns and knives. Movant told A.H. that if she told anybody he would kill her.

Vicki Ellison Burns (“Burns”), a family nurse practitioner with the CAC conducted the SAFE exam on A.H. The exam showed no physical findings in A.H.’s vagina or her rectum which was consistent with the type of sexual abuse that A.H. disclosed.

Subsequent to those events, Deeanna was walking down the hall in her house when she heard A.H., who was in her bedroom with Z.C., say, “[l]et’s play the Danny massager game.” Deeanna told her that she should not be doing that. A.H. explained to her that Movant had a “massager thing” that was big and round and it vibrated like a foot massager, and told Deeanna that Movant put the “mas-sager thing” to her “butt.” At the time A.H. was telling Deeanna about this she was upset. A.H. also told Deeanna that Movant told her if she said anything to anybody, he would kill her.

Appellate review of the motion court’s denial of post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). “Findings of fact and conclusions of law are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Broussard v. State, 110 S.W.3d 420, 422 (Mo.App. S.D.2003) (quoting Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).

To be entitled to post-conviction relief, on grounds of ineffective assistance of counsel, Movant must show by a preponderance of the evidence that (1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and (2) Movant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Worthington, 166 S.W.3d at 572-73. “If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and [] Movant’s claim of ineffective assistance of counsel must fail.” Goudeau v. State, 152 S.W.3d 411, 415 (Mo.App. S.D.2005).

Movant has a heavy burden in establishing ineffectiveness of counsel under the performance prong, because of the strong presumption that counsel provided competent representation. Worthington, 166 S.W.3d at 573. This presumption is overcome where Movant has demonstrated that “counsel’s representation fell below an objective standard of reasonableness.” Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Movant must “identify[] specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Wor-thington 166 S.W.3d at 573. Counsel’s reasonable choice of trial strategy cannot serve as a basis for ineffective assistance of counsel, even if that strategy is pursued to the exclusion of another reasonable strategy. Id.

To satisfy the prejudice prong, Movant must show there is a reasonable probability that but for the counsel’s ineffectiveness the outcome of the proceeding would have been different. Goudeau, 152 S.W.3d at 415. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In his sole point on appeal, Movant contends that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief in that his trial counsel was ineffective for failing to locate and present the testimony of an expert witness on proper techniques for interviewing children. He asserts that “[t]he expert testimony would have allowed [Movant] to effectively counter the primary obstacle in a child sexual abuse case: the unwillingness of jurors to believe that an innocent child would lie about being abused.” In his amended Rule 29.15 motion, Movant alleged that:

Counsel failed to conduct a reasonable investigation by failing to consult or procure the services of a qualified expert in child interviewing techniques for an opinion on the interviewing techniques employed by the interviewer at the [CAC], and the other hearsay witnesses in the interviews of [A.H.], If he would have done so, counsel would have been able to present compelling testimony at the 491 hearing and at the trial demonstrating how the specific techniques employed by the interviewers encouraged [A.H.] to falsely testify that she was sexually abused by [M]ovant. Due to the inadequacy of his investigation, counsel lacked the information to make an informed decision whether to present such expert testimony.

Movant argues that “[b]y far the most damaging evidence was the videotape of the CAC interview,” and “[i]f the jury had heard the testimony of [a qualified expert], there is a reasonable probability that the result of the trial would have been different.”

In support of his claim that trial counsel was ineffective for failing to procure the services of an expert in child interviewing techniques, Movant presented the testimony of Dr. Robert Sanders (“Dr. Sanders”), a psychologist. Dr. Sanders testified that there is a generally accepted technique in interviewing alleged child victims known as the “Stepwise Interview Protocol.” He stressed that when interviewing children, it is important to get the child into the mode of participating as an informant, by encouraging the child to give a free narrative with open-ended prompts. Referring to Bryant’s interview of A.H., Dr. Sanders testified that Bryant kept the interview structured around performance demands, and she did not get A.H. into the frame of mind to converse about her experiences. He explained that if A.H.’s allegation of abuse would have occurred in the context of a free narrative, one could have more confidence in the truth of the report. After relating that he would have been available to testify at Movant’s trial, Dr. Sanders explained that there is considerable research indicating that the accuracy of accounts is higher when using protocols, than when operating without them.

Movant also presented the testimony of Matthew O’Connor (“O’Connor”), an attorney experienced in defending child abuse cases. O’Connor explained that it was his customary practice to retain an expert in the field of child interviewing techniques when defending a child abuse case. He then related that there were experts available at the time of Movant’s trial.

The State called its own expert in the field of child interviewing techniques, Kathy Bernet (“Bernet”). Bemet, formerly a child forensic interviewer with the CAC, explained that she had never used the stepwise approach in any of the 1,500 interviews that she had performed. She related that the interview technique employed by Bryant was a semi-structured approach she helped develop with Bryant and the CAC director. Bernet believed that the technique used did not taint the reliability of A.H.’s statement.

In its finding of facts and conclusions of law, the motion court found that “[e]ven if [Movant] could have afforded the services of Dr. Sanders or another similar expert ... that witness would not have provided a viable defense. At best, all such an expert could offer was limited impeachment of the interview technique that could be effectively countered by [] Bernet.” The motion court then stated that “[m]ore importantly, trial counsel testified that the videotape was not key to his trial strategy. His defense did not focus on the child or the child’s statements, but rather on the mother’s role in producing those statements.” The motion court found that this was not an unreasonable strategy.

To show ineffective assistance of counsel for failure to locate and present expert witnesses, Movant must prove (1) such experts existed at the time of trial, (2) they could have been located through reasonable investigation, and (3) the testimony would have benefited Movant’s defense. Cravens v. State, 50 S.W.3d 290, 295 (Mo.App. S.D.2001). “The selection of witnesses is a question of trial strategy and is not a foundation for a finding of ineffective assistance of counsel.” State v. Fox, 916 S.W.2d 356, 363 (Mo.App. E.D.1996). However, where counsel lacks the information to make an informed judgment, because of inadequate investigation, any argument as to trial strategy is inappropriate. Cravens, 50 S.W.3d at 295.

In this case, with regard to the first of those factors, it is clear that Dr. Sanders was available to testify at the time of Movant’s trial. O’Connor testified that other experts in the field of child interviewing techniques were also available at the time of trial. Concerning factor two, O’Connor explained that there were several resources available through which an attorney could find an expert in the field of child interviewing techniques. In fact, defense counsel testified that he was aware of the existence of experts in this field, and had contacted the public defender’s office who referred him to an expert in St. Louis.

Factor three, the factor the motion court found Movant failed to prove, was whether such an expert would have provided Mov-ant with a viable defense. We agree with the motion court that Dr. Sanders or a similar expert would not have offered a viable defense because such an expert would have only provided limited impeachment of the interview technique. Furthermore, given the limited resources available to defense counsel, he pursued a reasonable trial strategy.

Had Dr. Sanders testified at Movant’s trial regarding the techniques employed by Bryant, the jury would have had additional evidence before them relating to why A.H. would be fabricating her allegations. However, his testimony would have been effectively countered by Bernet, who explained that the protocol used by Bryant was based on several protocols accepted in the field, and was the protocol that she in fact had followed at the time. Furthermore, even if the jury were to accept the testimony of Dr. Sanders or a comparable expert, defense counsel was still faced with the task of explaining why A.H. initially made these allegations.

Defense counsel considered contacting an expert, but never did so, because of his understanding that Movant did not have the resources to pay for one. Movant’s sister, his contact with the family regarding the case, had told him that they “absolutely had no money, period.” In fact, defense counsel had to pay for a majority of the depositions taken in the case out of his own pocket. He explained that in his experience when clients had limited financial means he would adapt his trial strategy by preparing to cross-examine the State’s expert as opposed to employing his own expert.

In explaining his trial strategy, defense counsel related that, in addition to the videotaped interview, he believed A.H. would be able to testify at trial regarding the alleged sexual abuse, and so he chose to focus on why A.H. was bringing these allegations as opposed to attacking the videotape. While he still intended to cross-examine Bryant regarding the methods employed in the interview of A.H., defense counsel’s strategy was to show that A.H. made these allegations because of pressure from Deeanna. Defense counsel’s actions at trial were consistent with this strategy.

At trial, defense counsel called Movant’s sister as a witness, who testified Deeanna had told her that Movant had never sexually touched A.H. He also called A.H.’s friend Alicia, who testified that A.H. had told her just before trial that Movant did not sexually abuse her, but that she would be “grounded for the rest of her life” if Movant did not go to jail. Alicia also revealed that Deeanna told her to say that Movant had touched her, which was untrue. Alicia’s brother Marcus corroborated Alicia’s account.

Finally, defense counsel called Lisa Pratt (“Pratt”), Marcus and Alicia’s mother. Pratt testified that Deeanna would talk to her, in front of A.H., about Movant having abused A.H. She also recalled an incident when Alicia told her, after having been with Deeanna, that Movant had sexually abused her. Alicia later told her she had lied. After taking Alicia to counseling, Pratt became convinced Movant had not sexually abused Alicia.

In addition to presenting evidence that Deeanna encouraged A.H. to accuse Mov-ant of sexually abusing her, defense counsel cross-examined Bryant regarding the interviewing techniques employed in the videotaped interviews with A.H. He elicited from Bryant that asking a child leading questions is dangerous. Bryant explained that because A.H. had trouble giving a free narrative she had to ask closed-ended questions.

In his closing argument, defense counsel noted that in the videotaped interview A.H. did not give a free narrative about the sexual abuse, but only provided answers to closed-ended questions. He also argued that it was Deeanna who coerced A.H. into alleging that Movant had sexually abused her.

Based on the evidence, we are unable to conclude that defense counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances by not locating and presenting testimony like that given by Dr. Sanders at the evidentiary hearing. See Kluck v. State, 30 S.W.3d 872, 877 (Mo.App. S.D. 2000). It was not defense counsel’s strategy to discredit the methods used to interview A.H. through use of an expert witness. Instead, defense counsel attacked the veracity of A.H.’s statements by demonstrating that Deeanna had exhibited pressure on her to bring allegations of sexual abuse.

Additionally, Movant has not persuaded us that there was a reasonable probability that the result of his trial would have been different if counsel had procured such expert testimony. See Cravens, 50 S.W.3d at 295. In Cravens, we found that because counsel had failed to produce an expert witness, “the jury was left with but one inference to draw: Movant was guilty of knowingly killing the victim.” 50 S.W.3d at 296. We were persuaded in Cravens that “had the expert testimony adduced at the evidentiary hearing been before the jury, it may have ‘alterfed] the entire evi-dentiary picture^]’ ” Id. (quoting Strickland, 466 U.S. at 696, 104 S.Ct. 2052). In the present case the jury was not left with but one inference to draw. Defense counsel presented evidence from which the jury could have drawn an inference that Deean-na pressured A.H. into fabricating allegations of abuse. Accordingly, had Dr. Sanders’ testimony been before the jury, we do not find that the entire evidentiary picture would have been altered.

After reviewing the record, we are not left with the definite and firm impression that a mistake has been made. The record supports the motion court’s finding that the testimony of an expert on child interviewing techniques would not have provided a viable defense. It also supports the trial court’s finding that defense counsel’s strategy, in light of the fact that he did not have the resources to hire an expert, was a reasonable one. This point is denied.

We affirm the denial of Movant’s post-conviction motion.

SHRUM, P.J., and BARNEY, J., concur.

      . All references to rules are to Missouri Rules of Criminal Procedure (2004) and all refer-enees to statutes are to RSMo (2000), unless otherwise indicated.


source: Caselaw Access Project

author: KENNETH W. SHRUM, Presiding Judge.

license: Public Domain

text:
    In the ESTATE OF William Allan SNIDER, Minor. Mickey June White, Conservator, Appellant, v. Carolyn Vienhage Little, Public Administrator of Greene County, Missouri, Successor Conservator, Respondent.
    No. 26870.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 26, 2006.

      J. Kaye Irwin, Springfield, for Appellant.
    No Attorney for Respondent.
   KENNETH W. SHRUM, Presiding Judge.

Mickey June White (“Conservator”) was appointed conservator of the estate of William Allan Snider, a minor, on September 13,1993. She served in that capacity until the letters of conservatorship were revoked by the probate division of the Greene County Circuit Court (“Probate Court”). Conservator appeals that revocation. We reverse and remand.

We will affirm the Probate Court’s decision unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Albertson v. Cox, 151 S.W.3d 138, 139[1] (Mo.App.2004).

Since her appointment in 1993, Conservator has filed her annual settlement late on several occasions. Throughout the years, however, as best this court can discern, the Probate Court never fined nor otherwise sanctioned Conservator for her untimeliness. The Probate Court merely accepted and approved the late filings.

The annual settlement due on September 13, 2004, launched the current dispute. On July 15, 2004, the clerk of the Probate Court sent Conservator notice that the settlement was due on September 13. Conservator failed to file by that date.

The Probate Court took no action, however, until November 4, 2004. On that day, the Probate Court sent Conservator a “notice of delinquent settlement and order of continuance.” That document provided the following:

“The Court upon its own motion hereby orders a continuance for two weeks until November 18, 2004, of the settlement due to be filed herein on September 13, 2004, which is now delinquent.
“It is further ordered that if said settlement or written application for eontinu-anee, for good cause, is not filed by November 18, 2004, a citation shall issue to file such settlement or show cause why letters should not be revoked and a successor appointed.” (Emphasis supplied.)

It appears that Conservator failed to ask for a continuance and failed to file the settlement by November 18, 2004. However, the Probate Court again took no action until a later date.

On January 11, 2005, the court issued an “order to show cause” to Conservator. This order commanded:

“The [Probate Court], on its own motion, hereby orders you to appear on Tuesday, February 1, 2005, at 9:00 a.m., before the [Probate Court], and then and there show cause, if there be any, why your letters of Conservatorship issued to you should not be revoked and you removed as fiduciary by reason of: Failure to file annual settlement due September 13, 200[4].”

At the hearing, Conservator appeared and filed the annual settlement. In her explanation to the court, Conservator testified that she was involved in a horrible car accident on June 24, 2004. Due to her surgeries and recovery time, she claimed she was unable to work on the September settlement. In the judgment revoking the letters of conservatorship, the Probate Court found “that said Conservator has repeatedly failed to file annual settlements in a timely manner and should be removed.” This appeal by Conservator followed.

The Probate Court has the discretion to remove a conservator for failing to file an annual settlement. § 475.110; § 475.190.5; see also Oliva v. Oliva, 113 S.W.3d 269, 275 (Mo.App.2003). In that regard, section 475.110 provides that a conservator may be removed on the same grounds as listed in section 473.140 (removal of a personal representative). The latter statute reveals that removal can occur when a conservator or personal representative is “incapable or unsuitable to execute the trust reposed in him ... or fails to answer any citation and attachment to make settlement.” § 473.140.

The probate code provides specific statutory procedures when one fails to file a settlement. Section 473.560 states that if settlement is not filed on the day which it is due, then the court “shall continue the settlement to some future day and issue a citation to the executor or administrator requiring him to file settlement on the day to which the settlement is continued or show good cause ... why his settlement has not been filed and why his letters should not be revoked.” (Emphasis supplied.) Section 473.563 further provides that after service of the citation, if the conservator “appears and files his settlement he shall be fined for his failure to file settlement at the proper time in a sum not exceeding one hundred dollars, unless he satisfies the court that it was impracticable for him to file settlement.” (Emphasis supplied.) It is only when the conservator fails to appear or appears and fails or refuses to file the settlement that the Probate Court may revoke his or her letters. § 473.567.

After Conservator failed to file the settlement in September, the Probate Court continued the matter to November 18, 2004. Specifically, the court warned that Conservator had two options: (1) file the settlement by that date or (2) apply for a continuance. The Probate Court warned Conservator that a citation would issue if she failed to take advantage of one of those options or she would have to show cause why her letters should not be revoked. The Probate Court, however, was only allowed to issue a citation after that date. § 473.563.

As such, when the court issued its January 11, 2005, “show cause order,” it abrogated the statutory procedure and misapplied the law. Specifically, the Probate Court ordered Conservator to show cause why her letters should not be revoked, which was not a statutorily authorized procedure. The procedure mandated by section 473.560 was for the Probate Court to continue the case to a future date and issue a citation to Conservator. It had no option to issue a “show cause order.” Moreover, had the correct citation been issued it would have necessarily given Conservator one of two options: (1) file the settlement on or before the date the matter was continued, or (2) show good cause why the settlement was not filed and why the letters should not be revoked. § 473.560. The statute does not empower the court to choose the option.

Moreover, if the statutorily mandated citation is issued per section 473.560 and if the conservator appears on the continuance date and files the settlement, then the only punishment the court can inflict for late filing is to fine the conservator in an amount not to exceed one hundred dollars. § 473.563. Revocation of letters of guardianship for non-filing of an annual settlement is only authorized when the conservator either fails to appear in response to a properly structured section 473.560 citation or appears without filing the settlement and also fails to show good cause for the failure to make settlement. § 473.567.

Here, Conservator appeared before the Probate Court on February 1, 2005, and filed the annual settlement. That was an option afforded her by section 473.560. At this juncture, the appropriate sanction for the court was to fine her, not revoke her letters of conservatorship. Because the Probate Court failed to follow the statutory procedure, we hold that it misapplied the law and the judgment must be reversed. The case is remanded to the Probate Court with directions to reinstate Conservator’s letters of conservatorship.

GARRISON, J., and BARNEY, J., concur.

      . Under section 475.270.1, a conservator must file a settlement of accounts with the court at least once per year on a date fixed by the court "within thirty days after the anniversary of the appointment of such conservator and on the corresponding date of each year thereafter until the final settlement.” All statutory references are to RSMo (2000), unless indicated otherwise.

      . Under section 475.280.2, "[t]he clerk shall notify each conservator by ordinary mail of the day on which each of his annual settlements is required to be filed at least thirty days before such date.”

      . When statutes relating to personal representatives are applicable to conservators (as they are here), the terms "executor” and “administrator” are used interchangeably with conservator. § 475.020.

      . A further reason exists for reversal. Even if the “show cause order” could be viewed as a "citation,” the Probate Court only notified Conservator that she must show cause why the current settlement was not filed. There was no indication that the court would consider previous violations as grounds for revocation of letters. However, the previous violations coupled with the current untimeliness were the reasons the court issued its judgment of revocation. The citation envisioned by the statutes is no mere summons; it must sufficiently advise the one proceeded against of the charge to enable him or her to make a defense. In re Boeving's Estate, 388 S.W.2d 40, 51-52 (Mo.App.1965); In re Ford, 157 Mo.App. 141, 137 S.W. 32, 36 (1911). The court’s show cause order would seemingly violate these notice requirements.


author: JAMES M. SMART, JR., Judge.

text:
    Julie Ann (Lewey) BEARCE, Respondent, v. Scot Michael LEWEY, Appellant.
    No. WD 64712.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.

      Anita I. Rodarte, Kansas City, MO, Arguing on behalf of Appellant.
    Michaela C. Shelton-Sinkhorn, Overland Park, KS, Arguing on behalf of Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   JAMES M. SMART, JR., Judge.

This is an appeal from a modification of child support. Scot Lewey (Father) appeals the trial court’s order increasing his child support payment to Julie Ann Bearce (Mother) for the two children that remain in Mother’s custody. Father’s primary contention is that the evidence was insufficient to support the award. We reverse and remand.

Statement of Facts

The parties were divorced in Colorado in 1997. The Colorado judgment established custody, visitation, and child support for the couple’s three children, Joshua, Aaron, and Rachel. The children, who were ages twelve, ten, and seven at the time, were placed in the joint custody of Mother and Father. Mother was designated the primary residential custodian. Father was ordered to pay $1,696 per month in child support. Father’s monthly salary at the time was approximately $10,000. Father also was ordered to pay Mother monthly maintenance of $2,500.

Mother and the three children later relocated to Missouri. The Colorado judgment was registered in Platte County, Missouri, in 2001. A year later, in May 2002, a judgment of modification was entered in the Platte County Circuit Court. The judgment provided for joint legal and joint physical custody. The children were to continue to reside with Mother and have specific periods of parenting time with Father. Upon agreement of the parties, the child support was reduced to $1,500 per month in exchange for Father’s agreement to pay all the travel expenses associated with the exercise of his parenting time. The judgment required the parties to pay a “proportionate share based on their respective incomes” for each child’s college expenses. It also included a provision that permitted the parents to “pay their proportionate share of the child’s college expenses or child support ... either directly to the child or to the college/university.” Father’s monthly income at that time was $20,000.

In July 2003, Joshua, the oldest child, moved to Colorado to attend college. On the day Joshua moved into his college dormitory, Father handed Mother a note stating that he would be reducing the amount of child support to $1,000 per month and applying the other $500 to Joshua’s college expenses. From that point forward, Father paid Mother $1,000 monthly in child support and either paid the additional $500 directly to Joshua or applied it to his college costs.

That same month, Father filed a motion to modify payment of child support requesting an order permitting him to pay $500 per month directly to Joshua, thereby reducing the amount he pays Mother to $1,000 per month. Mother filed a cross-petition for modification* alleging that a substantial and continuing change of circumstances made the existing amount of child support unreasonable. Those changed circumstances were the children’s need for an increase in support and Father’s increase in income. Father filed an amended motion seeking to change Joshua’s custody from Mother to Father and to modify the child support amount in accordance with the Form 14 guidelines.

A bench trial was held in September 2004. At the time of trial, Joshua was nineteen years old, Aaron was seventeen, and Rachel, fourteen. The parties stipulated at the outset that custody of Joshua would be transferred to Father, that the child support provisions with regard to Joshua would terminate, and that Father would pay all of Joshua’s college expenses.

Both Mother and Father testified and introduced income and expense statements. Father’s monthly income as a physician is $60,000 per month. Father supports two children from his second marriage as well as the children of this marriage. He reimburses Mother $124 per month for the children’s health insurance premium. Father established that he exercises overnight parenting time at least thirty-six nights per year. He offered evidence to show that he spent $11,000 in 2003 for visitation travel expenses. He also presented evidence that the yearly cost of Joshua’s college is $27,000, including room and board, and that he had paid $22,000 for Joshua’s first year there.

Mother’s monthly income from her employment as a registered nurse is $4,247. In addition, she receives $2,500 monthly maintenance from Father which is to terminate in early 2007. Mother’s statement of income and expenses showed total expenses for herself and the two children of $6,150. Although Mother has remarried, she stated that the expenses were only for her and the two children. Mother testified about some of the costs for the children’s extracurricular activities. She stated that the children’s expenses were “close to $7,000 per month.”

Both parties submitted Form 14s to the court. Mother’s Form 14 for the two children still in her custody showed a presumed correct child support amount (PCSA) of $2,344. Father calculated the PCSA for the two children to be $2,052, which included a deduction for Father’s overnight custody. Mother requested that the court deviate from the PCSA and award child support in the amount of $7,198 per month. Mother’s attorney informed the court that this figure was partly based on an extrapolation from the Form 14 income percentages, because the parties’ combined incomes exceeded the $20,000 guideline máximums.

Both parties also submitted Form 14s that calculated a support amount for Joshua. The court stated during trial, though, that Joshua should not be included in the Form 14 calculation based on the parties’ stipulations. The court noted that Father had agreed to pay all of Joshua’s college expenses and indicated that the judgment would include an order to that effect. In discussion with counsel, the court stated that Father’s expenses for Joshua would be taken into consideration in arriving at the child support amount.

Neither party requested findings of fact and conclusions of law. At the close of trial, the court took the case under advisement. On September 14, 2004, the court entered its judgment modifying child support. The court ordered Father’s address to be designated as the residence of Joshua for mailing and educational purposes. The court adopted Father’s parenting plan for Joshua, but ordered no child support for him. The judgment included no provision specifically ordering Father to pay for Joshua’s college education; nor did the parenting plan include such a provision. The court found that Father had been paying $1,000 per month to Mother in child support. According to the court, the presumed correct child support amount for the two children still in Mother’s custody is $2,344, as found on Mother’s Form 14. The court noted that the parties’ joint income exceeds the maximum amount found on the Form 14 schedule. The court specifically found that “[a]fter considering all relevant factors, the presumed child support amount of $2,344 is rebutted as unjust and inappropriate.” The court determined that the appropriate amount of child support is $4,000 per month and ordered it paid retroactive to October 1, 2003. The judgment did not include a provision dealing with the college education expenses for the two children still in Mother’s custody; nor did it provide that all prior orders not specifically modified shall remain in full force and effect.

Father appeals.

Standard of Review

Our review of a child support modification order is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the trial court’s judgment 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. Ricklefs v. Ricklefs, 111 S.W.3d 541, 543 (Mo.App.2003). A judgment will be set aside on the basis that it is against the weight of the evidence only with caution and only when there is a firm belief that the trial court’s judgment is wrong. Haden v. Riou, 37 S.W.3d 854, 860 (Mo.App.2001). We defer to the trial court’s determinations of credibility and view the evidence in the light most favorable to the judgment. Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo.App.2002).

An award of child support is within the sound discretion of the trial court. Haden, 37 S.W.3d at 860. An appellate court will interfere only if the trial court abused its discretion by ordering an amount that is against the logic of the circumstances or is arbitrary or unreasonable. In re Marriage of Gerhard, 985 S.W.2d 927, 930 (Mo.App.1999). We will not disturb a child support award “unless the evidence is ‘palpably insufficient’ to support it.” Id. (quoting Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App.1996)).

Point II: Finding of “Unjust and Inappropriate”

Father raises three points on appeal. We address his second point first, in which Father argues that the trial court erred and abused its discretion in rebutting the presumed correct child support amount (PCSA) as “unjust and inappropriate” and awarding $4,000 per month in child support because the evidence was insufficient to support those findings. He contends also that the court erred in basing the award on an extrapolation formula intended to provide an accumulation of capital rather than provide for the specific needs of the children.

Child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original award unreasonable. § 452.370.1; Lokeman v. Flattery, 146 S.W.3d 422, 426 (Mo.App.2004). Where application of the child support guidelines results in a change from the existing amount by twenty percent or more, a 'prima facie showing of such a change is satisfied. § 452.370.1. Here, Father acknowledges that the parties’ existing incomes result in a twenty-percent change, constituting a prima facie showing of a change of circumstances. Once the party seeking modification has met this burden, the court then determines the child support amount “in conformity with criteria set forth in section 452.340 and applicable supreme court rules.” § 452.370.2.

In determining an award of child support in any proceeding, section 452.340 and Supreme Court Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372 (Mo.App.1996), and approved by the Missouri Supreme Court in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo.App.2002). In step one, the trial court determines and finds for the record the presumed child support amount pursuant to Civil Procedure Form No. 14. Id. Here, the court accepted Mother’s Form 14 calculation and concluded that the presumed correct child support amount is $2,344 per month.

Step two of the Woolridge procedure permits the trial court to “rebut” the Form 14 amount as “unjust or inappropriate” after considering all relevant factors. Conrad, 76 S.W.3d at 308; § 452.340.9; Rule 88.01(b). Step two permits the trial court to exercise its broad and sound discretion in the final determination of a child support award. Woolridge, 915 S.W.2d at 379. In order to rebut the presumed child support calculation, the trial court must enter a specific finding on the record that the presumed amount, after consideration of all relevant factors, is unjust or inappropriate. Malawey v. Malawey, 137 S.W.3d 518, 527 (Mo.App.2004) (citing Rule 88.01(b)). Here, the court made a specific finding that the PCSA of $2,344, after consideration of all relevant factors, is rebutted as unjust and inappropriate.

We review the trial court’s application of the Woolridge procedure under Murphy v. Carron, supra. Conrad, 76 S.W.3d at 308. Once we determine that the trial court’s application of the Woolridge procedure passes the Murphy v. Carron standard, we then review the court’s decision to rebut its PCSA calculation for an abuse of discretion. Id.

Father incorrectly argues that the court erred in arriving at the child support amount by “extrapolating” the figure from the percentages used in the Form 14 guidelines. Mother stated at trial that she was requesting child support in the amount of $7,198 per month based on an extrapolation of the percentage of the parties’ combined incomes. This “straight-line extrapolation” method was specifically rejected by the Missouri Supreme Court in Mehra v. Mehra, 819 S.W.2d 351 (Mo. banc 1991). In Mehra, where the parties’ combined incomes exceeded the Form 14 maximum, the trial court used such a method, derived from the support-to-income ratio found in the guidelines, to calculate the child support award. Id. at 354. The Court found the trial court’s mode of extrapolation unjustified in that case. Id. Here, although Mother admitted that her request for $7,198 per month in child support was based on an extrapolation calculation, it is obvious that the trial court did not adopt Mother’s errant proposal and instead used another method in arriving at the $4,000 figure it awarded. Thus, the trial court’s determination is not subject to attack under Mehra in this case.

Father also attacks the award on the basis that Mother offered no credible evidence as to the children’s expenses that would support a finding of “unjust and inappropriate” and justify a deviation from the Form 14 PCSA. Father says Mother offered “negligible evidence” to show that the PCSA was insufficient to meet the children’s reasonable and necessary expenses.

As the party seeking to rebut the Form 14 amount, Mother bore the burden of showing that it was unjust or inappropriate. See Conrad, 76 S.W.3d at 308. Mother testified at trial and presented her statement of income and expenses to support her request for an increase in child support. Mother also showed that Father’s income had risen substantially — to $60,000 per month, or $720,000 per year. The total of the children’s pro-rated shared living expenses and their “other living expenses” (those not shared with Mother) is $4,255. The trial court’s award of $4,000 was in the vicinity of the total of the amounts shown for the children’s expenses on Mother’s expense statement. The “other living expenses” included $757 for the children’s “other expenses.” When asked about those expenses, Mother was unprepared to give specifics. She testified vaguely about the children’s extracurricular activities and discussed some of the costs associated with those. She said both children are involved in karate, for which there is a monthly expense and a testing fee every three to four months of $500. Mother said Rachel needed a new $3000 trumpet and that she needs private music lessons at approximately $60 to $80 per lesson. Costs associated with Rachel’s basketball activities included initial fees of between $60 and $500 and $40 per game, plus costs for uniform, shoes, travel. Mother also discussed other activities the children could enjoy if the amount of support were increased, including tutoring, water polo, tournaments, travel fees for activities, and private schooling. Mother, however, did not attach dollar figures to those activities, and she was not specific about the children’s potential participation in the activities. Mother’s attorney assumed that such additional expenses for activities would be justified so that the children could participate in a higher standard of living generally.

Father contends that Mother’s evidence of the children’s expenses amounted to nothing more than a “wish list.” Such a “wish list” is insufficient to support a finding of “unjust and inappropriate” and an upward deviation from the Form 14 guidelines, Father says. He cites Brooks v. Brooks, 871 S.W.2d 42 (Mo.App.1993) (modification judgment reversed largely due to unsubstantiated and speculative expenses claimed by the mother), and Searcy v. Searcy, 85 S.W.3d 95 (Mo.App.2002) (modification judgment reversed and remanded where evidence of extraordinary expenses consisted of speculation as to possible future expenses).

This case is reminiscent of the Searcy case. In Searcy, the mother’s income and expense statement simply listed $60 for lessons, and her testimony failed to clarify whether $60 represented the cost of past dance lessons or the combined cost of pending dance and piano lessons. 85 S.W.3d at 101. The record in Searcy contained no evidence regarding the current cost of those lessons or evidence that the mother had priced the cost of new dance classes or piano lessons. Id. We held that the evidence was too speculative to support the inclusion of those expenses in the child support award and reversed and remanded for further proceedings to allow the trial court to hear additional evidence on the issue. Id.

Here, much of Mother’s testimony with regard to the children’s “other expenses” also was speculative and unsubstantiated. Mother provided little detail to support her $757 figure for the children’s “other expenses.” When asked whether the children’s expenses for karate, polo, and basketball amounted to $757 a month or $9,000 per year, Mother said, “[N]o, it’s not $9,000. I would say that probably included other things, and I don’t have an itemized list of that at present[.]” Mother discussed the children’s current extracurricular activities and future activities she would like for them to be involved in, but she provided little information as to the cost, the need for, or the likelihood that the children would indeed participate in those activities.

A party’s testimony as to the children’s expenses can be sufficient evidence on which to base a child support determination. Lokeman, 146 S.W.3d at 428. In this case, however, Mother’s testimony was vague and imprecise. Because Mother’s attorney relied upon the wrong approach (a straight-line extrapolation approach), Mother was not appropriately prepared to present specifics about the “other expenses” for which she sought Father’s support. The court obviously made an effort to arrive at a fair amount for the award with the evidence it had.

Father is correct that our cases have said that rebuttal of the PCSA merely on the basis of a parent’s enhanced ability to pay (without evidence that the needs exceed the PCSA) is improper. See, e.g., Windsor v. Windsor 166 S.W.3d 623, 635 (Mo.App.2005); Haden, 37 S.W.3d at 864. We believe, however, that the trial court has some discretion to employ common sense in evaluating the children’s expenses when the parent has done a poor job of presenting the case for the children’s needs. Both Rule 88.01 and section 452.340.9 require the trial court to examine all relevant factors in arriving at an amount for child support, including those found in section 452.340.1. That statute permits the court to award an amount “reasonable” or “necessary” for the child’s support after considering all relevant factors, including, inter alia, the children’s financial needs, the financial resources of the parents, and the standard of living the children would have enjoyed had the marriage not been dissolved. Section 452.340.1. We do not see that the expenses expressed must be matters of strict necessity in view of Father’s affluence. In addition, the Form 14 Directions and Comments for Use state that where the parties’ incomes exceed the maximum guideline amount of $20,000, the court should consider that fact in deciding whether to deviate from the PCSA. See Comment G to Line 12.

The court did not specify the factors on which it based the rebuttal of the PCSA. The court is not required to so specify in the absence of a proper request. Waite v. Waite, 21 S.W.3d 48, 52 (Mo.App.2000). See also Rule 88.01(b) (unless a party flies a request pursuant to Rule 73.01(c), a written finding that the PCSA, after consideration of all relevant factors, is unjust or inappropriate is sufficient to rebut presumption that PCSA is correct). The factors that caused the rebuttal and the deviation from the PCSA must be apparent from the record. Gerhard, 985 S.W.2d at 931. See also Ponce v. Ponce, 102 S.W.3d 56, 60 (Mo.App.2003) (any deviation from the Form 14 amount must be supported by the evidence). Here, it is obvious 1) that Father’s income has tripled in recent years and Father has abundant resources; 2) the children would have enjoyed a higher standard of living in the absence of the divorce.

We will not substitute our judgment for that of the trial court on whether the PCSA was unjust or inappropriate “providing there is credible evidence to support the trial court’s beliefs.” Gerhard, 985 S.W.2d at 930. There was credible evidence of the foregoing factors. Thus, the court could reasonably rebut the PCSA.

Of course, even if the PCSA is unjust and inappropriate, there still must be evidence to support the court’s award. The abundant resources of Father do not excuse Mother from itemizing particular expenses. Father’s resources and his own standard of living might justify the court in not closely scrutinizing the reasonableness of what some might consider luxury expenses. Father, in his expense statement, managed to itemize expenses of $51,000 per month, so one would think that Mother could have managed to itemize expenses of $6,000 or so. We will try to avoid punishing the children when it is obvious that those who were supposed to advocate for them were not well prepared. Thus we reverse and remand, as in Searcy, for further proceedings to allow the trial court to hear additional evidence on the children’s needs.

Point I: Overnight Custody Allowance

Father argues in his first point that the trial court erred in accepting Mother’s Form 14 presumed child support amount of $2,344, because it did not include an allowance for Father’s “overnight visitation.” Father says that because he exercises at least thirty-six nights of overnight custody per year, he is entitled to a six-percent adjustment on line 11 of the Form 14. He says that with this adjustment, the correct PCSA is $2,189, rather than $2,344.

Father is correct that thirty-six nights of overnight custody per year entitles the parent obligated to pay support to an adjustment of six percent on the Form 14. See Directions, Comments for Use and Examples for Completion of Form 14, Line 11. It is also true, however, that there are circumstances under which the overnight custody adjustment on line 11 may be rebutted. See Comment B to Line 11. It is possible that the court considered the overnight custody adjustment, and simply rebutted it along with the rebuttal of the higher PCSA. Because we are remanding this case for further proceedings on other issues, the court can consider this issue of the adjustment.

Point III: Retroactive Child Support

In his final point, Father contends that the court erred in ordering him to pay retroactive child support. Pursuant to section 452.340.1, the court is permitted to award child support “retroactive to the date of filing the petition.” Here, Father filed his motion to modify child support on July 7, 2003, and Mother’s cross-petition was filed on September 12, 2003. Thus, the order that Father pay child support retroactive to October 1, 2003, falls within the statutory time limitations.

The trial court has considerable discretion in making child support awards retroactive. Honderick v. Honderick, 984 S.W.2d 205, 214 (Mo.App.1999). “In deciding whether to order a modification retroactive, the fact finder should consider all factors relevant to the issue and balance the equities as called for by the facts and circumstances of the particular case.” Id. Based on the evidence presented in this case, we see no indication that the trial court abused its discretion in making the child support award retroactive to a month after Mother filed her cross-petition.

Father’s “Point Relied On” on this issue essentially rehashes his arguments from Point II. It states that the trial court erred and abused its discretion in ordering Father to pay child support of $4,000 per month retroactive to October 1, 2003, because there was a lack of evidence to support the finding that the Form 14 amount is unjust or inappropriate. Father’s point does not actually contest the retroactive nature of the award or its effective date; rather, it concentrates on the trial court’s error in arriving at the amount of the award. In other words, Father essentially argues that because the court “originally erred” in setting the 'prospective child support amount, it also erred in setting the retroactive amount. See Lokeman, 146 S.W.3d at 429-30.

As noted, we are remanding to the trial court for additional proceedings with regard to other issues, including Father’s assertion in Point II that the court erred in setting the amount of the child support award. On remand, the court will be guided by its decision regarding the amount of the award in deciding whether to designate that same amount retroactive.

Additional Issues on Remand

We observe, sua sponte, that there are additional issues that the parties failed to raise and the trial court did not address. The first of these issues is the court’s failure to include a provision in the judgment ordering Father to pay Joshua’s college education expenses (based on Father’s stipulated agreement to do so). The parties stipulated at the outset that custody of Joshua would be transferred to Father, that the child support provisions with regard to Joshua would terminate, and that Father would pay all of Joshua’s college expenses. The court noted at trial that Father had agreed to pay all of Joshua’s college expenses and indicated that the judgment would include an order to that effect. The court stated: “Dr. Lewey said he would pay the tuition.Dr. Lewey will pay the tuition.That will be in the order.”

When the court issued its judgment of modification, it ordered Father’s address to be designated as the residence of Joshua for mailing and educational purposes. It adopted Father’s parenting plan for Joshua, and stated that no child support would be ordered for him. The judgment did not, however, include a provision specifically ordering Father to pay for Joshua’s college education; nor did the adopted parenting plan include such a provision.

Because lack of clarity is not in the best interests of the parties or the children, we instruct the trial court, on remand, to specifically include a provision in the judgment ordering Father to pay the expenses associated with Joshua’s college education, as stipulated to by the parties at trial. See Ponce, 102 S.W.3d at 64 (court’s order in docket entry that parent pay college expenses not sufficient; remanded for inclusion of specific order in the modification judgment to that effect for sake of clarity and certainty).

The second issue we believe the court should deal with on remand is the lack of either a new provision or a statement that the prior provision remains in effect with regard to payment of the college education expenses of the other two children, Aaron and Rachel. The earlier May 2002 modification judgment included a provision requiring the parties to pay a “proportionate share based on their respective incomes” for each child’s college expenses. The modification judgment that is the subject of this appeal did not include a provision dealing with the college education expenses for the two children still in Mother’s custody, nor did it include a statement that all prior orders not specifically modified shall remain in full force and effect.

Neither party asked for a ruling on college expenses for the two children (both of whom are approaching college-age), and no evidence was introduced with regard to that issue. A parent is not automatically liable for the cost of a child’s post-secondary education. See Shiflett v. Shiflett, 954 S.W.2d 489 (Mo.App.1997). Nevertheless, because this issue was included in the earlier judgment but not provided for in this judgment in any way, for the sake of clarity and certainty, we again direct the court, on remand, to address this important issue.

For the same reasons, the court, on remand, should include a provision in this judgment — as it did in its earlier May 2002 judgment — that all prior orders not specifically modified shall remain in full force and effect. This will clarify the status of issues that were not the subject of this modification proceeding {e.g., parenting plan), as well as those that necessarily should have been addressed in this modification judgment but were not {e.g., payment of college expenses).

Conclusion

For the foregoing reasons, we reverse the trial court’s decision and remand for additional proceedings in accordance with this opinion.

ULRICH and BRECKENRIDGE, JJ., concur.

      . All statutory references are to Revised Statutes of Missouri 2000, unless otherwise noted.

      . The section 452.340.1 factors are:
      (1) The financial needs and resources of the child;
      (2) The financial resources and needs of the parents;
      (3) The standard of living the child would have enjoyed had the marriage not been dissolved;
      (4) The physical and emotional condition of the child, and the child's educational needs;
      (5) The child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with [those] arrangements; and

        (6) The reasonable work-related child care expenses of each parent.

      . Use of the term "visitation” where the parties are awarded joint custody is incorrect. See Loumiet v. Loumiet, 103 S.W.3d 332, 337-38 (Mo.App.2003).


author: ROBERT G. ULRICH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thomas S. ROBERTSON, Appellant.
    No. WD 64367.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.

      Nancy A. McKerrow, Columbia, MO, for Appellant.

      Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Thomas Robertson appeals his conviction following a jury trial of murder in the first-degree, section 565.020, and sentence as a prior and persistent offender to life imprisonment without opportunity for probation or parole. Mr. Robertson presents two points on appeal. In his first point, Mr. Robertson contends the trial court erred in overruling his Motion to Dismiss pursuant to section 217.490. In his second point, Mr. Robertson contends the trial court plainly erred in giving Instruction No. 6, the verdict director for murder in the second-degree. Mr. Robertson’s points are denied, and the judgment of conviction is affirmed.

Facts

In early 1998, Mr. Robertson moved into Kathy Styles’ second floor apartment in Clay County, Missouri, with her and her nine-year-old daughter Shauna. On the morning of May 29, 1998, Shauna attempted to wake her mother and discovered her mother was dead. It was later determined that Ms. Styles was murdered by strangulation. The police arrived and determined that both Mr. Robertson and Ms. Style’s vehicle were missing. The Clay County prosecutor charged Mr. Robertson with Ms. Styles’ murder and learned that he was incarcerated in Texas. The prosecutor effected Mr. Robertson’s appearance in Missouri pursuant to the Interstate Agreement on Detainers (IAD), section 217.490 RSMo.

Prior to trial, Mr. Robertson filed a Motion to Dismiss, alleging the statute had been offended and that the Missouri trial court no longer had jurisdiction. The parties agreed the motion would be decided upon stipulated facts. The stipulated facts were as follows:

1. On June 3, 1998, Defendant Robertson was charged, in CR198-002300, with the class C felony of Stealing a Motor Vehicle. This charge was filed in .Clay County, Missouri;
2. On August 12, 1998, pursuant to Chapter 548 of the Revised Statutes of Missouri, a Governor’s warrant was signed by Missouri Governor, Mel Car-nahan and Secretary of State Rebecca Cook;
3. On August 20, 1998, Texas Governor George Bush, along with Texas Secretary of State, Alberto R. Gonzales signed a Texas warrant ordering Defendant Robertson turned over to Missouri authorities;
4. Defendant Robertson was not returned to Missouri on the authority of these documents. He remained in the custody of the State of Texas where he had charges pending;
5. On September 29, 1999, Defendant Robertson was charged by indictment, in CR199-004232, with the two count felony of Murder in the First Degree as well as the Class C felony of Stealing a Motor Vehicle in the State of Missouri. He was still in Texas custody;
6. Count II of CR199-004232 contained the same factual allegations which comprised CR198-002300;
7. In June of 2000, the Prosecuting Attorney for Clay County, Missouri requested custody of the Defendant from Texas pursuant to Chapter 217.490 (the Agreement on Detainers). At the time of this second request, Defendant Robertson was serving a five year sentence in Texas for Stealing a Motor Vehicle;
8. The State of Texas, pursuant to the Agreement on Detainers, released the Defendant to the temporary custody of Clay County, Missouri authorities on June 23, 2000. Defendant Robertson remains under Texas authority until 2003;
9. The Defendant was brought to the State of Missouri and booked into the Clay County Jail on July 27, 2000. Both the warrant for the 1998 complaint and the 1999 indictment were served upon him on that date;
10. On October 5, 2000, after Defendant Robertson has been brought to Missouri, the Prosecuting Attorney’s Office dismissed CR198-002300 (the single count charge of Stealing a Motor Vehicle);
11. Before being brought to Clay County from Texas, the Defendant filed a civil suit against a sheriff in the State of Texas. This case was captioned Thomas S. Robertson, Plaintiff vs. Jim Bowles, Defendant; Civil Action No. 3:99-CV0288-l. That case alleged that Sheriff Bowles had committed civil improprieties while the defendant had been in his custody. The factual details of those allegations are not germane to the Clay County case;
12. On January 11, 2002, the following order was signed by Federal District Judge Sam A. Lindsay: United States District Court for the Northern District of Texas, Dallas Division — Order Requiring Removal of Thomas Robertson from Clay County, Mo. Trial of Thomas S. Robertson, Plaintiff v. Jim Bowles, Defendant; Civil Action No. 3:99-CV0288-1 in Texas, order dated January 11, 2002, signed Sam A. Lindsay, United States District Judge. Judge Lindsay also signed a writ of Habeas Corpus Ad Testificandum ordering that the defendant be taken to Texas;
13. Defendant Robertson said or did nothing to facilitate the civil case being set on a docket for trial in federal court;
14. On January 31, 2002, Federal Marshals went to the Clay County Jail and took the Defendant from that facility and brought him to Texas. Defendant Robertson was not allowed to bring his legal paperwork with him to the State of Texas;
15. Prior to the Defendant Robertson being taken by federal authorities on January 31, 2002, Assistant Prosecuting Attorney Kevin Baldwin spoke to Judge Lindsay’s clerk and expressed his desire that the Defendant Robertson remain in Clay County until his case was resolved. However, the Prosecuting Attorney’s Office was not notified by the jail at the time that the defendant was removed from the jail by federal marshals on January 31st;
16. In an order dated January 31, 2002, Sam A. Lindsay, United States District Judge ordered that trial of Thomas S. Robertson, Plaintiff v. Jim Bowles, Defendant commence February 8, 2002. This order was specifically made because of the' Defendant’s Clay County custody status. During the trial, which took approximately one day, Defendant Robertson was required to try the civil case in a jail issued uniform because the Federal authorities would not let him wear civilian clothing during the civil proceedings. Defendant Robertson was also required to try the civil case in which he was the plaintiff without his legal paperwork because the Federal Marshals had not let him bring it with him;
17. After the trial, Judge Lindsay-issued an order requiring pretrial proposed findings from the parties in the ease of Thomas S. Robertson, Plaintiff v. Jim Bowles, Defendant by February 28, 2002;
18. This order was sent via certified mail dated February 20, 2002 to Thomas S. Robertson and was addressed to the Defendant Clay County, Missouri Detention Center while he was still being held in Texas. Defendant Robertson did not receive this Order until well past the deadline set out in the Order;
19. Defendant Bowles’ proposed Findings of Fact and Conclusions of Law in case of Thomas S. Robertson, Plaintiff vs. Jim Bowles, Defendant were filed on 2/20/02 by his attorneys. The attorney for Defendant Bowles also continued to send time sensitive documents to Defendant Robertson at the Clay County Jail even though he was in Texas;
20. In a Memorandum Opinion and Order in the case of Thomas S. Robertson, Plaintiff v. Jim Bowles, Defendant dated March 8, 2002, signed Sam A. Lindsay, United States District Judge, the Court found in favor of Defendant Bowles. At the time of this finding, not only was Defendant Robertson still unaware that he had been advised by a letter sent to the Clay County Jail to submit proposed findings to the Federal Court, but because of the misdirection of his mail, he had missed the deadline to do so;
21. On April 2, 2002, Defendant Robertson was returned from Texas by Federal Marshals to the Clay County Jail. After his return to Missouri, his pending Clay County trial had to be continued.

The trial court denied the motion and afforded Mr. Robertson the opportunity to apply for a writ of prohibition. The writ was denied, and the case proceeded to trial.

At trial, Mr. Robertson denied killing Ms. Styles and claimed he left the apartment just after midnight, before the murder occurred, on May 29, 1998, to drive to Dallas, Texas, for various reasons. There was no evidence of sudden passion presented at trial as Mr. Robertson’s defense was that he was not present and not that he acted under sudden passion.

The jury was instructed on murder in the first-degree and conventional murder in the second-degree. The second-degree murder instruction contained the optional paragraph informing the jury that to find Mr. Robertson guilty of second-degree murder, it must find that he did not cause the victim’s death while “under the influence of sudden passion arising from adequate cause.” No voluntary manslaughter instruction was given.

The jury found Mr. Robertson guilty of murder in the second-degree. After overruling Mr. Robertson’s motion for a new trial, the court sentenced Mr. Robertson, as a prior and persistent offender, to life imprisonment with no opportunity for probation or parole. Mr. Robertson’s timely appeal followed.

Motion to Dismiss

In his first point on appeal, Mr. Robertson contends the trial court erred in overruling his Motion to Dismiss pursuant to section 217.490, the IAD. He argues the State violated the antishuttling provision contained in Article IV(5) of the IAD when it brought Mr. Robertson to Missouri from Texas by means of a detainer and then allowed him to return to Texas before bringing him to trial in Missouri. Mr. Robertson claims this violation divested the Missouri trial court of its jurisdiction, and, therefore, the trial was held and the judgment of conviction was entered without jurisdiction.

Whether a court has jurisdiction is a question of law reviewed de novo without deference to the trial court’s determination. State ex rel. Nixon v. Moore, 159 S.W.3d 488, 490 (Mo.App. W.D.2005). To the extent that the application of law is based upon facts presented, the facts will be viewed in the light most favorable to the judgment. State v. Lybarger, 165 S.W.3d 180, 184 (Mo.App. W.D.2005).

The IAD is a compact among the states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. State ex rel. Noble v. Barker, 706 S.W.2d 76, 78 (Mo.App. S.D.1986). It allows a prisoner in one state to seek disposition of criminal charges filed against him by the second state. Lybarger, 165 S.W.3d at 184. Missouri adopted the IAD in section 217.490. Rivera v. State, 106 S.W.3d 635, 639 (Mo.App. S.D.2003). The IAD is meant “to encourage the expeditious and orderly disposition of ... charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1839, 56 L.Ed.2d 329 (1978); Section 217.490, Article I. In order to achieve this goal, the IAD must be construed liberally. Lybarger, 165 S.W.3d at 184. The IAD was created, in part, because of evidence indicating that, once a detainer is lodged against an inmate, the inmate’s status within the prison changes adversely. State ex rel. Clark v. Long, 870 S.W.2d 932, 937 (Mo.App. S.D.1994). Further, in order for rehabilitation and treatment programs to be planned and carried out, untried charges must be disposed of by trial or dismissal within a reasonable period of time. Id. at 937-38. Finally, the state and society have a strong interest in having pending charges tried in a timely fashion. Id. at 938.

The IAD controls when a detainer is filed with the custodial or sending state by another state that has untried charges pending against the prisoner. Mauro, 436 U.S. at 343, 98 S.Ct. 1834. The IAD identifies the parties as either the sending state or receiving state. “State” is defined as “a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the commonwealth of Puerto Rico.” Section 217.490, Article II. A sending state is “a state in which a prisoner is incarcerated at the time ... that a request for custody or availability is initiated[.]” Id. A receiving state is a “state in which trial is to be had on an indictment, information or complaint[.]” Id. In the context of this case, Texas was the sending state and Missouri was the receiving state.

Once a detainer has been filed, the time constraints contained in Articles III and IV govern. The time constraints pertain to the time in which the prisoner must be brought to trial in the receiving state. At issue in this case is the following provision, known as the antishuttling provision:

If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph 5 of Article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Section 217.490, Article IV(5). Mr. Robertson contends that he was returned to Texas, his original place of imprisonment, before trial was had in Missouri; thus, he argues the Missouri indictment was no longer of any force or effect and should have been dismissed by the trial court pursuant to this statutory authority.

Mr. Robertson relies on Alabama v. Bozeman, 533 U.S. 146, 149, 121 S.Ct. 2079, 2082, 150 L.Ed.2d 188 (2001), and contends it controls and resolves this case. In Bozeman, the defendant was moved from a federal prison in Florida, where he was serving a term of imprisonment, to a county jail in Alabama pursuant to a de-tainer lodged by the State of Alabama. Id. at 151, 121 S.Ct. 2079. The defendant remained in Alabama for one day for the pretrial proceedings and then was transported back to the federal prison in Florida. Id. Approximately one month later, he was brought back to Alabama for trial. Id. At that time, defendant filed a motion to dismiss claiming the antishuttling provision of the IAD had been violated and, as a result, the Alabama trial court no longer had jurisdiction to try him. Id.

The State of Alabama conceded the violation of the IAD antishuttling provision, but claimed it technical, harmless, and de minimis. Id. at 153, 121 S.Ct. 2079. It further argued that returning the defendant to the federal prison opposed to housing him in the county jail was consistent with the goal of not interrupting the defendant’s rehabilitation, especially considering the fact that the defendant would have received no rehabilitation if he had remained in the county jail until brought to trial in Alabama. Id. at 152-53, 121 S.Ct. 2079. The United States Supreme Court rejected the State’s argument that inconsequential, technical, de minimis, or trivial violations of the antishuttling provision constituted exceptions to the IAD in light of the IAD’s purpose. Id. at 154,121 S.Ct. 2079. It held that the IAD must be literally interpreted and that there were no exceptions, implicit or otherwise, to the antishuttling provision. Id.

Mr. Robertson accurately states Bozeman’s holding that any violation of the antishuttling provision, regardless of how brief or minimal, triggers the IAD’s dictate that the indictment, information or complaint shall not be of any further force or effect and that the cause shall be dismissed with prejudice. Bozeman does not resolve this case, however, as the IAD antishuttling provision was not violated. The antishuttling provision prohibits a receiving state from returning a prisoner to the original place of imprisonment pursuant to Article V(5) before trial is had. Article V(5) is the mandate that the prisoner shall be returned to the sending state as soon as practicable. Thus, the antishut-tling provision contained in Article IV(5>) prohibits a receiving state from returning a prisoner to the sending state before bringing the prisoner to trial in the receiving state. The sending state in this case was Texas; the receiving state was Missouri. Mr. Robertson was taken from the State of Missouri while in federal custody to federal jurisdiction located within the State of Texas by federal marshals, pursuant to a federal judge’s order, to appear in a federal cause of action. The people, acting through the member states, created the United States of America, a separate sovereignty, granting to it certain stated and implied powers expressed in the Constitution. The United States Government’s presence exists throughout all the states of the union, its holdings and protectorates, including the member states of the IAD. Under the definition of “state” in the IAD, the United States of America is a separate member state. The federal gov-eminent was a separate “state” in this case. Thus, Mr. Robertson was not returned to the sending state of Texas. He was, instead, taken to the third party “state” of the United States of America.

Mr. Robertson was physically taken to the geographical location of the State of Texas, but he was not returned to the sending “state” of Texas under the IAD. He was taken from the receiving “state” of Missouri to the third member state, the “state” of the United States of America. Jurisdiction is determined by statute and not by geography. New Jersey v. New York, 523 U.S. 767, 823 n. 12, 118 S.Ct. 1726, 1757, 140 L.Ed.2d 993 (1998)(citing United States ex rel. Belardi v. Day, 50 F.2d 816, 817 (C.C.A.3 1931)). The statutes governing jurisdiction frequently involve determinations of geography but that does not change the principle of law that jurisdiction is governed by statute and not geography. And although the IAD clearly provides that the United States of America is a separate “state,” it was not the sending state in this case. Granted that Mr. Robertson was taken to the geographical location of Texas, he was never returned to the custody and jurisdiction of the State of Texas; he was taken to the “state” of the United States of America and was in federal custody the entire time of his absence from the State of Missouri commencing when the Federal Marshals obtained his custody from the State of Missouri. As Mr. Robertson was not returned to the sending state, the antishuttling provision contained in Article IV(5) was not violated.

The holding that the antishuttling provision in this case was not violated is consistent with cases decided by other jurisdictions. In Shigemura v. United States, 726 F.2d 380, 381 (8th Cir.1984), the defendant was serving a sentence of imprisonment in the St. Louis County jail. A federal de-tainer had been lodged against defendant, and he was taken from and returned to the county jail several times to appear in federal court. Id. The defendant argued this violated the antishuttling provision of the IAD as he was returned to his original place of imprisonment, the county jail, before being tried on the federal charges. Id. The court held that IAD had not been breeched, even though defendant was taken from the county jail to appear in federal court and returned to the county jail before being tried in the federal court. Id. No federal penal institution was located in the St. Louis area, and the St. Louis County jail had been approved by the Department of Justice as a facility to hold prisoners awaiting federal trial. Id. The court noted the coincidence that the same physical building was used to house defendant for both state and federal charges. Id.

Shigemura demonstrates that the physical geographical location of the prisoner is not the significant fact under the IAD. The significant fact is the prisoner’s custody. In Shigemura, the prisoner was in the same physical location. He had been transferred from state custody to federal custody and was not transferred back to state custody until trial was had on the federal charges. In this case, Mr. Robertson was transferred from Missouri state custody to federal custody and then back to Missouri state custody. No violation of the IAD antishuttling provision occurred because Mr. Robertson was brought to trial on the Missouri charges before being returned to Texas state custody. See also United States v. Hunnewell, 891 F.2d 955, 958 (1st Cir.l989)(af-firming the district court’s finding that defendant was not returned to state custody in light of the common practice in Maine of housing federal prisoners in state facilities, an order remanding the defendant to federal custody, a letter to the warden confirming the defendant’s status as a federal prisoner, and the fact that the United States Marshals’ Service paid for the defendant’s board); US. v. Kelley, 300 F.Supp.2d 224, 230 (D.Mass.2003)(stating: “So long as custodial responsibility actually shifts and applicable temporal limits are observed, retention of the prisoner in the same institutional setting cannot signify that he was ‘returned to [his] original place of imprisonment’ within the meaning of Article IV(e) of the IAD.” (quoting Hunnewell, 891 F.2d at 959)). Federal authorities took Mr. Robertson to Federal District Court in Texas, and although he was physically within the geographic boundaries of Texas, he remained in federal custody and not the State of Texas’ custody.

Mr. Robertson also argues that this case is similar to People v. Broiming, 108 Mich. App. 281, 310 N.W.2d 365 (1981). In that case, the defendant was imprisoned in a federal prison in Indiana when the State of Michigan lodged a detainer against him. Id. at 287, 310 N.W.2d 365. Pursuant to the detainer, the prisoner was moved from the federal prison in Indiana to the federal prison in Michigan. Id. He was then taken from the federal prison in Michigan and transferred to the custody of the Detroit police whenever there was a court date in the state case. Id. at 287-88, 310 N.W.2d 365. After the pretrial matters were concluded, the prisoner was returned to the federal prison in Indiana until such time as his state trial in Michigan began. Id. at 288, 310 N.W.2d 365. The appellate court held that the prisoner’s return to the federal prison in Indiana violated the Article IV(5) antishuttling provision. Id. at 298-99, 310 N.W.2d 365.

The State of Michigan argued that the prisoner was returned to the federal prison in Indiana at the request of federal officials and claimed it should not be penalized for the actions of the federal government. Id. The court stated:

Where the transfer back is not done at the request of defendant or his attorney, we believe that the state should be charged with the responsibility therefor. In no other way can the defendant’s right to final disposition before return be adequately safeguarded. This is not to say that, if absolute proof were given that the state authorities had nothing to do with the transfer and in fact attempted to stop it, another result might be reached.... Thus, because defendant did not request or clearly acquiesce in the transfer and because the state has not established that the transfer was effected against its wishes, the failure to try defendant before returning him to Terre Haute constitutes a violation of Article IV(e) of the IAD.

Id. at 299-300, 310 N.W.2d 365. Mr. Robertson argues that, because he did not request to be transferred to Texas for purposes of adjudicating his federal cause of action and because the transfer disadvantaged him in that he was unable to take with him his legal documents and did not receive time sensitive documents, the State of Missouri, and not he, should bear the legal hardship. Browning presented a different case than the one before this court. In Browning, the United States was the sending “state” and the defendant was returned to the sending state before trial was had in the Michigan cause of action. Thus, there was a violation of the antishut-tling provision and Michigan argued that the violation was not the result of its actions, but rather resulted from the actions of the sending state. Other cases cited by Mr. Robertson also involve situations where there was a violation of the anti-shuttling provision. As discussed, supra, there was not a violation of the antishut-tling provision in Mr. Robertson’s ease. As there was no violation, there can be no discussion regarding who bears the fault for the violation.

The point is denied.

Instruction No. 6

In his second point on appeal, Mr. Robertson contends the trial court committed plain error in giving Instruction No. 6, the verdict director for murder in the second-degree. He claims the instruction was not in conformity with the Missouri Approved Instructions because, although the voluntary manslaughter instruction was not given, Instruction No. 6 contained the optional third paragraph requiring that to find him guilty of second-degree murder, the jury first had to find that he did not cause the death of Ms. Styles while he was “under the influence of sudden passion arising from adequate cause.” Mr. Robertson claims this optional paragraph confused the jury and that this confusion was compounded when the State errantly argued in its closing argument that the difference between murder in the first-degree and murder in the second-degree was whether Mr. Robertson acted under the influence of sudden passion.

Mr. Robertson did not object to verdict directing instruction No. 6 on the issue he presents here, and he did not preserve this issue for appellate review. Rule 28.03 governs objections to jury instructions and verdict forms and states:

Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.

A party who fails to object to an instruction as required by Rule 28.03 fails to preserve a claim of error with respect to that instruction for purposes of appellate review. State v. Johnson, 95 S.W.3d 221, 225 (Mo.App. S.D.2003). Mr. Johnson, therefore, requests plain error review. Unpreserved points of error regarding instructions or verdict forms may be reviewed for plain error if manifest justice would otherwise occur. State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001). But, review of jury instructions for plain error is discretionary. State v. Lewis, 955 S.W.2d 563, 566 (Mo.App. W.D.1997). “Plain errors are clear, evident and obvious.” Lewis v. State, 152 S.W.3d 325, 327 (Mo.App. W.D.2004). Plain error occurs only where the court has a substantial belief that manifest injustice or miscarriage of justice has occurred. Id. at 327-28. An appellate court’s discretion to reverse a conviction on the basis of plain error should be used sparingly, and instructional error rarely rises to the level of plain error. State v. Hawkins, 58 S.W.3d 12, 17 (Mo.App. E.D.2001). “A defendant must go beyond a mere demonstration of prejudice and establish that the instructional error affected the jury’s verdict.” Id.

At trial, the jury was given verdict-directing instructions for murder in the first-degree and conventional second-degree murder. The instructions were submitted by the State. Neither party offered the MAI voluntary manslaughter instruction, and it was not given.

A trial court commits error when it gives an instruction that does not comply with the Missouri Approved Instructions (MAI) or the accompanying Notes on Use, although the prejudicial effect of the error must be judicially determined. State v. Mickle, 164 S.W.3d 33, 61 (Mo.App. W.D.2005). The verdict directing instruction for murder in the second-degree is set forth in MAI-CR3d 313.04. State v. Ever- age, 124 S.W.3d 11, 15 (Mo.App. W.D.2004). That was the instruction given. The second-degree murder verdict director given to the jury stated:

Instruction No. 6
If you do not find the defendant guilty of murder in the first degree, you must consider whether he is guilty of murder in the second degree.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about May 29, 1998, in the City of Clay, State of Missouri, the defendant caused the death of Kathy Styles by strangling her, and
Second, that defendant knew that his conduct was practically certain to cause the death of Kathy Styles, and
Third, that defendant did not do so under the influence of sudden passion arising from adequate cause, then you will find the defendant guilty of murder in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As used in this instruction, the term sudden passion means passion directly caused by and arising out of provocation by Kathy Styles which passion arose at the time of the offense and was not solely the result of former provocation. The term adequate cause means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.

The portions of the instruction emphasized are at issue in this case. This “sudden passion” language in a second-degree murder instruction is meant to justify the giving of a voluntary manslaughter instruction. Hawkins, 58 S.W.3d at 19. This language must be included when there is evidence supporting a finding that the defendant caused the victim’s death under the influence of sudden passion arising from adequate cause. Id.

The instruction given did not deviate from the MAI. Instead, optional language, authorized by the MAI, was included. The Notes on Use for MAI-CR3d 313.04 contain the following guidelines:

4.... If there is evidence supporting sudden passion from adequate cause, paragraph (Third) must be given....
7. When any of the following terms are used in this instruction, the paragraph defining that term must be used:
“sudden passion”

The Notes on Use require that the optional “sudden passion” language be given where evidence of sudden passion was presented at trial. The Notes on Use do not state that the optional language may only be given in such a circumstance, though. The optional language is a correct statement of the law regardless whether evidence of sudden passion was admitted and a voluntary manslaughter instruction is given as a lesser-included offense. Thus, the instruction given did not offend the MAI and the Notes on Use, and the issue is whether giving the additional language as a part of the instruction was “clear, evident and obvious error” resulting in “manifest injustice or miscarriage of justice.”

State v. Hawkins, 58 S.W.3d 12 (Mo.App. E.D.2001), which has facts quite similar to this case, is helpful in resolving this point. In Hawkins the defendant was convicted of murder in the first-degree. Id. at 15. The jury was given verdict directing instructions for murder in the first-degree, murder in the second-degree, and self-defense, but not voluntary manslaughter. Id. at 16. The defendant faded to preserve his objection to the verdict director for murder in the second-degree, and the court reviewed it for plain error. Id. The defendant argued that plain error occurred because the verdict director for murder in the second-degree contained the optional sudden passion paragraphs despite the fact that no voluntary manslaughter instruction had been given. Id. at 16, 19. He claimed that the “sudden passion” language confused the jury and caused the jury to convict him of the higher first-degree murder offense. Id. at 19. More specifically, defendant argued that the jury could have been confused by “sudden passion” language in the instructions given the fact that neither party had used those words during trial. Id.

Hawkins presented facts more supportive of plain error than the facts in this case. During the course of the trial, counsel differentiated murder in the first-degree from murder in the second-degree by describing the crime as either “cold-blooded” or “hot-blooded.” Id. Defendant claimed the jury construed “hot-blooded” as synonymous with second-degree murder and “cold-blooded” as synonymous with first-degree murder. Id. He further argued that the jurors could have considered the term “sudden passion” as a more legally correct way of saying “hot-blooded.” Id. Thus, he argued, the jury could have concluded that the optional third paragraph in the instruction should have read: “Third, that defendant did so under the influence of sudden passion arising from the adequate cause.” Id.

There was evidence of juror confusion in Hawkins. During deliberations, the jury sent the trial court a note stating: “Please clarify on instruction 6 part 8, is the DID NOT DO SO the correct verbage [sic] describing second-degree murder? Does the word not belong in this statement?” Id. Additionally, the jury sent out Instruction No. 6 with the third paragraph circled, the “did not do so” portion of the paragraph underlined, and a question mark placed in the left margin next to the circled paragraph. Id. at 19-20. The trial court responded to the jury’s inquiry by stating: “You must be guided by the instructions previously given by the Court.” Id. at 20.

The Eastern District noted the “general rule that a conviction of a higher degree of a crime renders any error in an instruction on a lower degree of the crime not prejudicial, unless the error prevents a conviction on the lesser crime.” Id. The appellate court then determined that the “sudden passion” language contained in the instruction did not prevent the jury from convicting the defendant of murder in the second-degree. Id. It noted that the instruction correctly stated the elements of second-degree murder and the law that defendant “did not do so under the influence of sudden passion.” Id. The court acknowledged that the jury had questioned the instruction, but stated that the trial court had answered the questions accurately, and the jury had been told to follow the instruction. Id. Thus, the court held that there was no plain error. Id. The dissent in Hawkins focused on the jury’s inquiries regarding the meaning of the third paragraph in the second-degree murder instruction and claimed this showed the jury was confused and that the “sudden passion” language affected the verdict. Id. at 27.

Mr. Robertson argues that the inclusion of the “sudden passion” language in the instruction combined with the prosecutor’s misstatement of the law during closing argument confused the jury.

During her closing argument, the prosecutor made the following statement:

The final issue, the final element in this case is that the defendant killed Kathy Styles after deliberation. This is the main difference between your murder one and the murder two charge. In the murder two charge, Murder in the Second-degree, you have to have that it was under the influence, that he committed the murder under the influence of sudden passion, and the sudden passion is from the provocation that Kathy Styles did at that—

At that point, the defense counsel asked to approach the bench. Out of the hearing of the jury, a discussion was had between counsel and the court wherein the prosecutor indicated that she believed the difference between first-degree and second-degree murder to be the presence of sudden passion. The trial court then explained that the difference between first and second-degree murder was deliberation and that sudden passion differentiated second-degree murder from voluntary manslaughter. The trial court then asked the prosecutor if what it just stated made sense and the prosecutor answered affirmatively. Then the following exchange took place:

The Court: I believe the rest of [the prosecutor’s] argument will be in accord with what we have said here. If there was any confusing issue that might have come up, I think it can be straightened out easily when you argue the case. I think I’d do more harm than good if I tried to straighten it out.
[Defense Counsel]: And I’m not asking for that, Judge.

The prosecutor then continued her closing argument. She explicitly stated that the difference between first and second-degree murder was deliberation and then proceeded to define deliberation and point out evidence she believed showed deliberation. When the defense made its closing argument, it informed the jury that the difference between first and second-degree murder was “cool reflection” and then proceeded to explain what cool reflection entailed. When the prosecution finished its closing argument, it again stated that the difference between first and second-degree murder was deliberation. Both sides focused heavily on the issue of whether deliberation can be brief in time and the distinction between deliberating and reacting.

The prosecutor did misstate the law during her closing argument when she stated that the difference between first and second-degree murder was sudden passion. A misstatement of the law must be interpreted within the context of the entire record, however, and not in isolation. State v. Collins, 150 S.W.3d 340, 355 (Mo.App. S.D.2004). Further, the jury is presumed to have followed the instructions as given in rendering its decision. Mickle, 164 S.W.3d at 61. “Where a prosecutor misstates the law but the jury is properly instructed ... the jury is presumed to have followed the instructions.” State v. Berry, 168 S.W.3d 527, 534 (Mo.App. W.D.2005). See also, State ex rel. Mo. Highway & Transp. Comm’n v. Our Savior Lutheran Church, 922 S.W.2d 816, 819 (Mo.App. E.D.1996); State v. Blakeburn, 859 S.W.2d 170, 175 (Mo.App. W.D.1993).

In this case, the law was misstated one time, the error was brought to the prosecutor’s attention, and the law was correctly stated at least three times thereafter. Further, the jury did not question the instruction at issue in this case. No indication exists that the jury was confused regarding the “sudden passion” language when it rendered its verdict. Given Hawkins, the presumption that the jury followed the verdict directing instructions, which accurately stated the law, and the utter lack of evidence suggesting jury confusion, no “clear, evident and obvious” error transpired, and “manifest injustice or miscarriage of justice” did not occur. The trial court did not commit plain error in publishing the second-degree murder instruction with the optional sudden passion language.

The point is denied.

Conclusion

Both of Mr. Robertson’s points are denied, and the judgment of convictions is affirmed.

All concur.

      . All statutory references are to RSMo 1994 unless otherwise noted.

      . Paragraph 5 of Article V of the IAD states: “At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state."