text:
    ST. CHARLES COUNTY, et al., Appellants, v. CITY OF ST. PETERS, et al., Respondents, and Attorney General Jay Nixon, Respondent-Intervenor.
    No. ED 84211.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 27, 2004.
    Motion for Rehearing and/or Transfer Denied Aug. 31, 2004.
    Case Transferred to Supreme Court Oct. 26, 2004.
    Case Retransferred to Court of Appeals Jan. 25, 2005.
    Original Opinion Reinstated Jan. 28, 2005.

      Edward D. Robertson, Jr., Mary D. Winter, Jefferson City, MO, Joann Ley-kam, James Borchers, St. Charles, MO, for appellants.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Wilson, Rex Burlison, Earl Kraus, Jefferson City, MO, for respondents.
    Before BOOKER T. SHAW, P.J., LAWRENCE G. CRAHAN, J„ and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

St. Charles County (the “County”) appeals from the trial court’s judgment granting summary judgment in favor of the City of St. Peters (“St. Peters”). The County raises six points on appeal. In its first five points, the County argues the trial court erred in granting summary judgment in favor of St. Peters: (1) on Counts I — III of the County’s petition because St. Peters was not entitled to collect payments in lieu of taxes (“PILOTS”) and economic assessment taxes (“EATS”) because PILOTS are special assessments and because St. Peters failed to designate an “area selected for the redevelopment project” as required by Ordinance Nos. 1961 & 1962; (2) on Count IV of the County’s petition because Section 99.805(7), RSMo Cum.Supp.1992, permits the use of PILOTS for private use only and the community recreation center facility, the Rec-Plex, is for a public use; (8) on Count VI of the County’s petition because the St. Peters Board of Alderman acted in bad faith and arbitrarily or in excess of its authority by creating the St. Peters Centre Redevelopment Area Tax Increment Financing District in that it does not contain a predominance of land that is blighted; (4) on Count VI of the County’s petition because the St. Peters Board of Alderman violated Article VI, Section 27(b) of the Missouri Constitution by issuing revenue bonds without a vote of the people; and (5) on Count VIII of the County’s petition because St. Peters’s use of EATS violates Article VI, Sections 28 & 25 of the Missouri Constitution in that St. Peters used public money to assist a private entity, Costco Wholesale Corporation (“Costco”). In point six, the County argues the trial court erred by ruling that the statute of limitations and the doctrines of laches, estoppel and waiver bar the County’s causes of action. On cross-appeal, St. Peters argues the. trial court erred in refusing to assess the attorneys’ fees incurred by it and Costco because the Declaratory Judgment Act permits attorneys’ fees to be recovered in cases of special circumstances, and the trial court abused its discretion in failing to find special circumstances existed in this case. We affirm the trial court’s grant of summary judgment in favor of St. Peters because Counts I-VI and VIII of the County’s petition were barred by the statute of limitations. We also affirm the trial court’s denial of St. Peters’s motion for attorneys’ fees.

We have reviewed the briefs of the parties and the record on appeal and no errors of law appear. The trial court’s judgment is affirmed. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the principles of law. However, a memorandum has been provided to the parties, for their use only, setting forth the reasons for this order. We affirm pursuant to Rule 84.16(b).

      . The County also attempts to appeal from the trial court’s denial of its summary judgment motion. However, we will not address that argument here because denial of a summary judgment motion is not appealable, and will only be reviewed when its merits are completely intertwined with a grant of summary judgment in favor of an opposing party. See Transatlantic Ltd. v. Salva, 71 S.W.3d 670, 676 (Mo.App. W.D.2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Floyd ELLSWORTH, Appellant, v. DIRECTOR OF CHILD SUPPORT ENFORCEMENT, STATE OF MISSOURI, Respondent.
    No. WD 63739.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Seth D. Shumaker, Kirksville, MO, for appellant.
    Trevor Bossert, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   ORDER

PER CURIAM.

Appellant sought to reverse a Division of Child Support Order finding him in arrears for support. Affirmed. Rule 84.16(b).


author: PAUL M. SPINDEN, Judge.

text:
    ALL AMERICAN SUPPLY COMPANY, Respondent, v. FOUR SEASONS MECHANICAL, INC., Defendant, and Abigail Ferrari, Appellant.
    No. WD 64064.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Gabriel Domjan, Lee’s Summit, for Appellant.
    Gwendelyn Garcia, Kansas City, for Respondent.
   PAUL M. SPINDEN, Judge.

Abigail Ferrari appeals the circuit court’s summary judgment for All American Supply Company, holding her personally liable for the debts of Four Seasons Mechanical, Inc., because of a personal guaranty that she signed. Ferrari contends that the circuit court erred in granting summary judgment because the principal obligor of the guaranty was not Four Seasons Mechanical, and, therefore, she was not Hable for any goods or services provided by All American Supply to Four Seasons Mechanical. Because the intent of the parties cannot be discerned from the four corners of the guaranty agreement, we reverse the circuit court’s judgment and remand for further proceedings.

On June 29, 1998, Ferrari, as Four Seasons Mechanical’s president, signed an ap-pHcation for credit with All American Supply. Beneath the credit appHcation was a personal guaranty, which Ferrari signed on July 6, 1998. The personal guaranty instructed All American Supply to:

Please sell and deliver to Abigail J. Ferrari of Four Seasons Mechanical or representatives, on your usual credit terms of sale, such goods, wares and merchandise as they or their representatives may order or select, and in consideration thereof I/We hereby fully Guarantee and hold myself/ourse'lves personally responsible for the prompt payment of the purchase price of all such goods, wares and merchandise so sold or defivered, whether evidenced by open account, acceptance, note or otherwise.

Ferrari included 'with the credit application a list of her personal assets, including personal cash reserves, personal bank accounts, personal property, personal employee information, and personal credit information. All American Supply approved Four Seasons Mechanical’s credit application and granted it an open line of credit.

When Four Seasons Mechanical did not pay its account, All American Supply sued Four Seasons Mechanical and Abigail Ferrari. All American Supply contended that Four Seasons Mechanical was indebted to it for goods and services rendered in the amount of $42,966.45 plus interest. All American Supply also alleged that because of the personal guaranty Ferrari owed the same amount plus attorney fees. Because Four Seasons Mechanical failed to enter its appearance or file an answer, the circuit court entered a default judgment for $42,966.45 plus interest and costs against it.

All American Supply filed a motion for summary judgment against Ferrari on December 11, 2003. On April 7, 2004, the circuit court granted summary judgment on behalf of All American Supply and against Ferrari for the principal amount of $42,966.45 plus interest, $6444.97 in attorney fees, and costs. Ferrari appeals.

Our review of the circuit court’s summary judgment is essentially de novo. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). For summary judgment to be proper, the circuit court must determine that the parties are not disputing any issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Finance, 854 S.W.2d at 377. When we review an appeal of a summary judgment, we view the evidence in a light most favorable to the nonmoving party, and we afford that party the benefit of all reasonable inferences. ITT Commercial Finance, 854 S.W.2d at 382.

On appeal, Ferrari asserts that the circuit court erred in granting summary judgment because the principal obligor of the guaranty was not Four Seasons Mechanical, and, therefore, she was not liable for any goods or services provided by All American Supply to Four Seasons Mechanical. She contends that the principal obligor of the guaranty was “Abigail J. Ferrari of Four Seasons Mechanical.”

A guaranty is “a collateral agreement for another’s undertaking and is an independent contract that imposes responsibilities different from those imposed in the agreement to which it is collateral.” Dunn Industrial Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 434 (Mo. banc 2003). “[T]he guaranty contract itself ... defines the obligations and rights of both the guarantor and guarantee.” Jamieson-Chippewa Investment Company, Inc. v. McClintock, 996 S.W.2d 84, 87-88 (Mo.App.1999). “[T]he liability of a guarantor is to be strictly construed according to the terms of the guaranty agreement and may not be extended by implication beyond the strict letter of the obligation.” Dunn, 112 S.W.3d at 434. Such strict construction, however, “does not entitle a guarantor to demand an unfair and strained interpretation of the words used in order that it may be released from the obligation that it has assumed.” Id.

Ferrari’s personal guarantee is ambiguous. This is because enforcing the guarantee as written would nullify the contract. If contract language that appears plain nullifies part of the contract when given effect, the contract is ambiguous. Tuttle v. Muenks, 21 S.W.3d 6, 9 (Mo.App.2000).

Ferrari executed and became the principal obligor under the personal guarantee. The guaranty, however, obligated Ferrari to pay for all goods sold or delivered to her. Thus, according to the plain language of the personal guarantee, Ferrari guaranteed only her own contract. Such an interpretation is “‘redundant, illusory, absurd, and therefore unreasonable.’ ” Standard Meat Company v. Taco Kid of Springfield, Inc., 554 S.W.2d 592, 596 (Mo.App.1977) (citation omitted). Ferrari cannot be both the obligor and the guarantor. Thus, the guarantee is ambiguous.

Without more evidence, the parties’ intent is unclear. Parol evidence is admissible to help explain or construe the terms of an ambiguous contract. Jamieson-Chippewa, 996 S,W.2d at 88-89. When the parties’ intent is unclear and the language of their contract is ambiguous, a genuine issue of material fact exists. Tuttle, 21 S.W.Bd at 9. In this case, more evidence is required before we can say that Ferrari personally guaranteed Four Seasons’ debt as a matter of law.

Because an ambiguity exists and because the circuit court must use parol evidence to determine the parties’ intent, summary judgment is not proper. Id. We, therefore, reverse the circuit court’s judgment and remand for further proceedings.

HAROLD L. LOWENSTEIN, Presiding Judge, and RONALD R. HOLLIGER, Judge, concur.

      . The underlined portions were handwritten in the blanks provided on the guaranty agreement.

      . Because we reach this conclusion, we need not address Ferrari's remaining contentions on appeal.


text:
    Mary Elizabeth YOUNG, Appellant, v. Nelson Lee YOUNG, Respondent.
    No. WD 64114.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      John Stapleton, Kansas City, MO, for Appellant
    Nelson Young, Florence, MS, pro se.
   PAUL M. SPINDEN, Judge.

Mary Elizabeth Young appeals the circuit court’s judgment denying her motion to modify a decree dissolving her marriage to Nelson Lee Young. When the couple divorced in May 2000, Nelson Young was retired from the military and drawing a non-disability retired military pension. The circuit court decreed to Mary Young “a monthly government allotment of $412.00” but did not mention Nelson Young’s military pension specifically. Neither party appealed the judgment, and Nelson Young paid as the decree ordered until November 2002.

Mary Young asked the circuit court in March 2003 to modify its decree to order Nelson Young to continue “the monthly spousal retired military pay as a division of property” and to increase the amount to 50 percent of Nelson Young’s disposable income. The circuit court modified its decree to award to Mary Young “$412.00 per month of [Nelson Young’s] military retired pay to be paid to her directly by the Veteran’s Administration.”

Three weeks later, Mary Young asked the circuit court to modify its order again because the decree did not set out a percentage of Nelson Young’s pay as required by the Defense Finance and Accounting Service. Mary Young asked the circuit court to designate a percentage of Nelson Young’s retirement pay. Mary Young also noted that, by directing the VA to pay the $412 monthly allotment, Mary Young could cease to receive her money if Nelson Young were terminated or left his job. She, therefore, asked that the $412 be deducted from Nelson Young’s retirement pay.

In response, the circuit court vacated its earlier modification decree and returned the matter to the contested docket. The circuit court ordered Mary Young to present authority demonstrating that it had subject matter jurisdiction to modify the allotment and change its designation from a “monthly government allotment to monthly spousal retired military pay.” The circuit court denied her motion to modify for lack of subject matter jurisdiction. The circuit court noted that the proper remedy for modifying a dissolution decree that divided marital property was a petition in equity to divide previously omitted marital property. After moving for reconsideration, Mary Young appealed.

A dissolution decree is not modifiable after it becomes final unless the decree was a qualified domestic relations order. Section 452.330.5, RSMo 2000; see Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988) (final judgment distributing marital property cannot be modified). Thus, the critical issue is whether or not the dissolution decree was intended to be a QDRO. If so, the circuit court had jurisdiction to “ ‘establish[ ] or maintain[ ] the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of order.’ ” Seal v. Raw, 954 S.W.2d 681, 685 (Mo.App.1997) (quoting Section 452.330.5, RSMo 1994). The circuit court, however, could not alter its original order to increase the amount payable unless this “effectuate[d] the expressed intent of [the] order.” Id.

A QDRO allows a circuit court to “enforce a nonplan participant’s right to ‘child support, alimony payments, or marital property rights’ previously granted by ‘any judgment, decree, or order (including approval of a property settlement agreement).’ ” Id. at 684 (quoting 29 U.S.C. Section 1056(d)(3)(B)(ii) (Supp.1997)). A QDRO is:

[A] domestic relations order—
(I) [W]hich creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and
(II) [W]ith respect to which the requirements of subparagraphs (C) and (D) are met[.]

29 U.S.C. Section 1056(d)(3)(B)®. At subsection (ii), the statute further defines a domestic relations order:

[A]ny judgment, decree, or order (including approval of a property settlement agreement) which—
(I) [R]elates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and
(II) [I]s made pursuant to a State domestic relations law (including a community property law).

The circuit court’s order in this case was a domestic relations order. Whether or not it intended for it to be a qualified domestic relations order is unclear. The order’s phrasing suggests that the government was to pay Mary Young directly, which would suggest that the order was intended to be a QDRO, but we find no evidence that this money was to come from a qualified plan. See 29 U.S.C. Section 1056(d)(3)(B)(i)(I). Although the order recognized that Mary Young was to receive a $412 “monthly government allotment,” we find no discussion in the record that either the circuit court or the parties intended for the allotment to come from Nelson Young’s non-disability military pension. The Contested and Uncontested Proceeding Information Form filed in the case listed the $412 as maintenance. The record is silent as to whether or not Nelson Young was drawing a pension and giving $412 of that pension to Mary Young when the couple separated. Perhaps Mary Young was receiving $412 each month from Nelson Young’s pension, but this record does not inform us that she was. Thus, we cannot discern whether or not the circuit court intended for the $412 to come from Nelson Young’s pension and for its order to be a QDRO.

Hence, we remand to the circuit court for it to determine the question of whether or not it intended its order to be a QDRO. If so, the circuit court is not without jurisdiction and may modify its decree after declaring it to be a QDRO. Ochoa v. Ochoa, 71 S.W.3d 593, 596 (Mo. banc 2002) (“By statute, an order so intended may be modified in order to ‘establish’ it as a QDRO.”). The circuit court, however, does not have jurisdiction to grant Mary Young’s request that her allotment be increased. Seal, 954 S.W.2d at 685.

Mary Young’s remaining arguments under Section 452.330 and Rule 74.06 are inapposite. Section 452.330 applies only to those instances in which the court lacked personal jurisdiction over an absent spouse. The circuit court had jurisdiction over Nelson Young because he entered an appearance, so Section 452.330 does not help Mary Young. Rule 74.06 allows a post final judgment motion, but only if it is filed within one year of the dissolution — clearly not the case here.

HAROLD L. LOWENSTEIN, Presiding Judge, and JAMES M. SMART, JR., Judge concur.

      . Subparagraphs (C) and (D) of 29 U.S.C. Section 1056(d)(3) say, "(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies — (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies. (D) A domestic relations order meets the requirements of this subparagraph only if such order — (i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and (iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.”


author: HAROLD L. LOWENSTEIN, Judge.

text:
    STATE of Missouri, Respondent, v. Ralph E. BAILEY, Appellant.
    No. WD 62740.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Philip F. Cardarella, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This appeal arises from a criminal conviction for felony stealing, Section 570.030. At issue is the sufficiency of the evidence to support Ralph E. Bailey’s (“Husband” or “Defendant”) conviction for planting, cultivating, and harvesting wheat on his ex-wife’s (“Wife”) property. On appeal, Husband argues that the evidence adduced at trial failed to establish the corpus delicti of the crime of stealing and was insufficient to support a finding of guilt, as the wheat was his property as a matter of law.

Statement of Facts

Husband and Wife were married for thirty-seven years. Upon dissolution, their marital property was divided and awarded pursuant to the divorce decree. Wife was awarded sole ownership of the “Hannah Place,” a 270-acre tract of farmland in Lafayette County. Following the award, and without Wife’s permission, Husband planted, cultivated, and harvested wheat on the Hannah Place.

Upon discovering Husband’s actions and becoming frustrated with the progress of civil remedies, Wife instituted a complaint which resulted in the filing of a criminal charge against Husband. Husband filed a motion to dismiss the stealing charge, alleging that the wheat on Wife’s land was his property as a matter of law. Husband’s motion was overruled. The case was then tried to a jury on two different occasions. The first case ended in a mistrial.

At trial, Husband’s testimony from his civil contempt proceeding was read into evidence by the state. Husband offered no evidence. This testimony included admissions that Husband: (1) did not have permission to enter the land or harvest the wheat; (2) knew the tracts of land were awarded to Wife; (3) understood he was supposed to stay off the land; (4) understood the wheat was owned by Wife; and (5) acknowledged that he went onto Wife’s land and removed the wheat. The verdict of guilty was returned. This appeal follows.

STANDARD OF REVIEW

Defendant argues that there was insufficient evidence adduced at trial to support a finding of guilt. “In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)). This court “accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.” Id.

ARGUMENT

Defendant contends that the State failed to prove the corpus delicti of stealing because it cannot establish all the requisite statutory elements. Section 570.030 provides that, “A person commits the crime of stealing if he or she appropriates property ... of another with the purpose to deprive him or her thereof.” Section 570.010 further states that property is “property of another” if “any natural person ... other than the actor has a posses-sory or proprietary interest therein.” He claims he had a possessory interest in the wheat he planted and ultimately harvested from Wife’s land and, accordingly, argues that he cannot steal his own property. This argument is misplaced.

The wheat harvested from the Hannah Place was real property belonging to Wife. “[Ojwnership of realty carries with it ... the prima facie presumption of ownership of both the natural products of the land, such as grass and trees, and the emblements, or annually sown crops, although such presumption is not conclusive.” In re Estate of North, 320 S.W.2d 597, 599 (Mo.App.1959). As a result, “in the absence of an agreement to the contrary, crops raised on land are the property of the owner of the land, so long as there has not been a severance, either actual or constructive.” Id.

In this case, Husband incorrectly focuses and places undue importance on the effect of severing crops from the land. He relies on Dent v. Dent, in which the Supreme Court of Missouri stated, “where one in possession of land, even as a mere trespasser, plants, cultivates and brings to maturity a crop and severs it from the soil, he thereby becomes the owner of the crop.” 350 Mo. 560, 166 S.W.2d 582, 587-88 (1942) (emphasis added). The fallacy of Husband’s reasoning, however, lies within his application of common law rather than the language of Missouri’s statute for the crime of stealing.

Chapter 570, as set forth supra, authorizes prosecution for appropriating property in which another individual has a possesso-ry interest. Here, the divorce decree awarded sole ownership of the Hannah Place to Wife, thereby giving her a posses-sory interest in the property. Husband concedes that he knew Wife owned the land and the wheat planted on the land, and that he did not have permission to enter upon the property and/or harvest the crop. By unilaterally removing the wheat from the ground and depriving Wife of all benefits received therefrom, Husband appropriated Wife’s property. Consequently, there was sufficient evidence to convict Husband of stealing under Section 570.030.

Conclusion

The proper inquiry under Section 570.030 is whether the property of another has been appropriated. In instances involving real property where an individual other than the owner removes a natural product of the land, the analysis remains the same. Therefore, because Husband harvested wheat planted on Wife’s property without her permission, his conviction and sentence for criminal stealing must stand.

The judgment of the trial court is affirmed.

All concur.

      . All statutory references are to RSMo.1998 unless otherwise referenced.


text:
    Michelle R. HOLTON, Appellant, v. Kevin C. HOLTON, Respondent.
    No. WD 62885.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Neysa L. Day, Kansas City, MO, for appellant.
    Leslei M. Schneider, Columbia, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

Michelle Brayman, formerly Michelle Holton, appeals from a judgment entered in the Circuit Court of Boone County granting her former husband Kevin Hol-ton’s motion to modify the physical custody provisions of the decree dissolving the couple’s marriage, dismissing Brayman’s counter-motion to modify custody, and finding that Brayman was in contempt of court for relocating with the couple’s child in violation of a court order. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion. However,,a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Aaron BISHOP, Respondent, v. HEARTLAND CHEVROLET, INC., Appellant.
    No. WD 62951.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Richard R. Fritz, Kansas City, MO, for appellant.
    Brendan J. Donelon, Kansas City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellant Heartland Chevrolet, Inc. appeals from a $47,500 judgment entered in the Circuit Court of Jackson County in favor of Respondent Aaron Bishop in an action filed by Bishop in which he claimed he was unlawfully terminated from his employment with Heartland in retaliation for exercising his rights under the workers’ compensation law in violation of § 287.780. Heartland also appeals from the trial court’s order granting Bishop’s motion to enforce a settlement agreement between the parties and ordering specific performance of the agreement. Because Heartland failed to provide an adequate record on appeal for this Court to determine whether the trial court’s order enforcing the settlement agreement was proper, the appeal is dismissed.

On July 19, 2001, Bishop filed a claim for workers’ compensation benefits for head injuries that he had sustained while working at Heartland on June 28 and July 17, 2001. Following the latter injury, Bishop’s doctor placed restrictions on Bishop that prevented him from returning to work until he had sufficiently recovered. Subsequently, on November 23, 2001, Heartland president and owner Ted Potts sent Bishop a letter informing him that he was being replaced and that he would no longer be employed by Heartland as of December 5, 2001. On February 28, 2002, Bishop filed a petition in the Circuit Court of Jackson County asserting that he had been unlawfully terminated from his employment in retaliation for his exercising of his rights under the workers’ compensation statutes.

The case was tried on April 21, 22, and 23, 2003, and the jury returned a verdict in favor of Bishop. The jury awarded Bishop $40,000 in back-wages and $7,500 for pain and suffering, for a total of $47,500. The trial court entered judgment in accordance with the jury’s verdict. After its post-trial motions were denied, Heartland timely filed its notice of appeal on June 19, 2003.

Subsequently, Bishop filed a motion to enforce a settlement agreement that he claimed had been reached by the parties prior to Heartland’s filing of its notice of appeal. Bishop asserted that Heartland’s attorney had accepted, on behalf of Heartland, an offer to settle the matter for the amount of the verdict; had agreed upon the terms of the settlement agreement; had received settlement paperwork executed by Bishop; and had received a check made out to Bishop from Heartland’s insurer in the amount of the judgment. Bishop claimed that his attorney and Heartland’s attorney had agreed that Heartland’s attorney would simply hold onto the check until an attorney’s lien asserted by another attorney was resolved. Bishop indicated that, after the lien issue was resolved, his attorney requested delivery of the check from Heartland’s attorney but was told that Heartland had fired trial counsel, refused to tender the settlement check, and had decided to pursue an appeal.

Subsequently, on September 25, 2003, this Court entered its order holding that a ruling on Respondent’s motion to enforce the settlement agreement might require an evidentiary hearing and that any such hearing should be conducted by the trial court. This Court stayed the appeal and remanded the cause to the trial court “for the limited purpose of ruling on Respondent’s motion to enforce a settlement agreement.”

After conducting an evidentiary hearing and considering briefs filed by the parties, on March 25, 2004, the trial court entei’ed its order directing that the $47,500 check issued by Heartland’s insurer be delivered to Plaintiffs attorney and that plaintiffs attorney enter satisfaction of judgment upon receipt of that payment. Heartland brings six points on appeal from that order and the judgment entered against it in the underlying action.

In one of its points, Heartland challenges the trial court’s order directing it to deliver the settlement check to Bishop and for Bishop to then enter a satisfaction of judgment. Heartland contends that the evidence presented at the evidentiary hearing was insufficient to establish that Heartland or its attorney had ever agreed to settle the case. Heartland further asserts that any issue related to the settlement of the case is not properly before this court because no specific factual finding was entered by the trial court as to the existence of a settlement agreement.

With regard to Heartland’s latter argument, a finding that a valid settlement agreement existed is implicit in the trial court’s order. Accordingly, the propriety of that order is properly before this Court on appeal.

“[A]n agreement to settle a lawsuit may be enforced by motion.” Ingram v. Rinehart, 108 S.W.3d 783, 787 (Mo.App. W.D.2003). “A motion to compel settlement adds to a pending action a collateral action for specific performance of the settlement agreement.” Beck v. Shrum, 18 S.W.3d 8, 10 (Mo.App. E.D.2000). “The party requesting specific performance of a settlement agreement has the burden of proving, by clear, convincing and satisfactory evidence, his or her claim for relief.” Id “The trial court is afforded much discretion in deciding whether to award the equitable remedy of specific performance.” Id An order granting or denying enforcement of a settlement agreement is an ap-pealable order. Ingram, 108 S.W.3d at 788.

Acting upon Bishop’s motion to enforce the settlement agreement, the trial court ordered Heartland to tender the $47,500 settlement check that had been issued by its insurer to Bishop and for Bishop to then enter satisfaction of the judgment. This order granted specific performance of the settlement agreement consistent with the terms of the agreement averred in Bishop’s motion. In order to grant specific performance of the agreement, the trial court had to have found that such an agreement existed. Thus, a finding that a valid settlement agreement existed between the parties is clearly implicit in the trial court’s order.

With regard to the sufficiency of the evidence to support the trial court’s order, Heartland contends that the evidence presented failed to establish that Heartland or its attorney ever agreed to settle the case. Heartland argues that the testimony of its trial counsel reflects that he never communicated that he had the authority to enter into a settlement agreement or that he was agreeing to any terms of a settlement agreement.

Heartland has failed, however, to include in the record on appeal a transcript of the evidentiary hearing conducted by the trial court. It thereby leaves this Court with no means by which to assess whether the trial court had an adequate evidentiary basis for finding that a binding settlement agreement had been reached.

“Missouri Supreme Court Rule 81.12 requires the appellant to compile the record on appeal.” Ricketts v. Seagrass, 99 S.W.3d 515, 516 (Mo.App. E.D.2003). The record on appeal must “ ‘contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented.’ ” State ex rel. Bacchus v. Armstrong, 106 S.W.3d 605, 607 (Mo.App. W.D.2003) (quoting Rule 81.12(a) ). “To comply with this rule, the appellant must file a transcript and prepare a legal file of the record, proceedings and evidence necessary to resolve the issues on appeal.” Zlotopolski v. Dir. of Revenue, 62 S.W.3d 466, 468-69 (Mo.App. E.D.2001). Failure to comply with this rule is grounds for dismissal. Granada Bd. of Managers v. Coffer, 73 S.W.3d 874, 876 (Mo.App. E.D.2002).

The record reflects that the trial court conducted an evidentiary hearing on Bishop’s motion to enforce settlement on November 20, 2003, and that testimony and exhibits were presented to the court at that time. While Heartland has filed a supplemental legal file containing the parties’ pleadings and the trial court’s order granting Bishop’s motion to enforce settlement, Heartland has failed to include a transcript of the evidentiary hearing in the record on appeal.

In order to review a claim asserting that the evidence was insufficient to support a finding by the trial court, this court must examine all of the evidence presented to the court related to that finding in order to determine whether it provides an adequate basis for the court’s finding. Without a copy of the evidentiary hearing transcript in the record, this Court has no way of knowing what testimony or evidence was presented to the trial court. “Clearly we cannot review evidentiary sufficiency claims without knowing the evidence presented.” Pierson v. Laut, 113 S.W.3d 298, 300 (Mo.App. E.D.2003). By failing to file the transcript of the evidentiary hearing, Heartland has left this court with no means by which to assess whether the trial court had a sufficient evidentiary basis to conclude that a settlement agreement existed. See Bolander, 35 S.W.3d at 440.

Where, as here, “an appellant fails to provide this Court with everything necessary to determine all of the questions presented, dismissal is appropriate.” Pierson, 113 S.W.3d at 300. Because Heartland has failed to provide this Court with the necessary record to review its claims, we dismiss its appeal.

Bishop has filed a motion for sanctions for filing a frivolous appeal pursuant to Rule 84.19. After a careful review of the record before us, we decline to exercise our discretion to award sanctions, and the motion is denied.

Appeal dismissed.

All concur.

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

      . Appellant was ultimately released to return to work on January 18, 2002.

      . An order denying such a motion to enforce a settlement agreement does not become ap-pealable until final judgment has been rendered in the case. Id.

      . " ‘[A] party who contends that an attorney lacked authority to bind him [or her] in a particular way bears a heavy burden.' " Bolander v. City of Green City, 35 S.W.3d 432, 440 (Mo.App. W.D.2000) (quoting Jacobs v. Georgiou, 922 S.W.2d 765, 770 (Mo.App. E.D. 1996)). "While there is no implied authority for attorneys to settle cases on behalf of their clients, 'in cases where an attorney represents that he or she has authority from the client to accept a settlement offer, and did reach an agreement with the other party’s counsel to settle, Missouri courts have placed a substantial burden on the client to disprove his own attorney’s authority if the client wishes to avoid the settlement.’ ” Id. (quoting Southwestern Bell Yellow Pages, Inc. v. Dye, 875 S.W.2d 557, 561 (Mo.App. E.D.1994)). "In fact, '[o]nly where the trier of fact has been convinced that authority to settle was truly lacking, or where the evidence has been deemed insufficient to raise the presumption of attorney authority, have our courts allowed clients to avoid or attempt to avoid settlements concluded by their attorneys.’ ” Id. (quoting Dye, 875 S.W.2d at 562).

      . "[A] transcript is necessary on appeal to verify factual statements made by the parties in their briefs and to verify which exhibits were admitted into evidence.” Id. at 469. "Additionally, ‘[w]e cannot consider exhibits without knowing what testimony was offered with respect to those exhibits or on what basis or under what circumstances they were admitted.’ ” Id. (quoting Buford v. Mello, 40 S.W.3d 400, 402 (Mo.App. E.D.2001)).

      . Having determined that the trial court’s order enforcing the settlement agreement between the parties should not be reversed, the cause is deemed to have been settled. Accordingly, we need not address Heartland’s points on appeal asserting claims of trial error because those claims have been rendered moot by the settlement of the action. Promotional Consultants, Inc. v. Logsdon, 25 S.W.3d 501, 506 (Mo.App. E.D.2000).


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

text:
    STATE of Missouri, Respondent, v. Raymond L. PARSONS, Appellant.
    Nos. WD 63112, 63378.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Melinda Kay Pendergraph, State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., J., EDWIN H. SMITH, C.J.
   JAMES M. SMART, JR., Judge.

Raymond Parsons appeals his conviction following a jury trial for stealing, for which he was sentenced to seven years’ imprisonment. He contends that the evidence was not sufficient to support the conviction. The judgment is affirmed.

Factual and Procedural Background

Raymond Parsons was charged in Platte County with burglary, section 569.170, RSMo 2000, stealing a rifle, section 570.030, and stealing a motor vehicle, section 570.030. Viewed in the light most favorable to the verdict, the evidence at trial was as follows:

Early in the afternoon on December 5, 2002, Michelle Geiler and April Chamberlain were driving north on Waukomis Street in Kansas City, when a red Saturn came “whipping” around them. As it passed, one of the occupants of the Saturn threw coins out the window at them. The driver of the Saturn ran a red light at the next intersection, almost getting hit by a car, then turned left onto 68th Street. Geiler and Chamberlain watched as the driver then drove into a field off a gravel road. Geiler followed the Saturn in her car and pulled off the road near the field. She called the police on her cell phone, reported the incident, and gave their location. Geiler and Chamberlain lost sight of the Saturn when it drove into a tree line. Eventually, they saw two young men running through the field, into a creek bed, and under a bridge. Chamberlain ran to the bridge and “hollered” down at them that she had called the police. The two young men continued to run up the creek bed toward a nearby house. Geiler and Chamberlain called the police again to update the location of the young men.

Two officers patrolling in the area received a call reporting that a red Saturn that had been “driving erratically” and “trying to run parties off the road” was now parked in a field near 68th and Wau-komis. When the officers arrived at the field, they found a red Saturn driven into a creek bed. On closer inspection, the officers found that the engine was still running and concluded that the car had been crashed there. Assuming the vehicle had been stolen, the officers called in the license plate number. They determined that the vehicle belonged to David and Arlene Perry.

When the officers were unable to reach the Perrys by telephone, they drove to the Perry residence. The house was in a slightly remote location, only about a half mile from where the Saturn had been wrecked. The officers knocked on the door, but received no answer. The Perrys and their teenage daughter all had left home early that morning for work and school. David Perry left last, at around 7:00 a.m., locking the doors of the residence behind him. The red Saturn was left in the driveway. Walking around the house, the officers discovered that the door leading into the garage had been forced open and the garage door also was open. The door leading from the garage into the house had a foot mark on it, and there was debris on the ground. The officers suspected a burglary. They notified the dispatcher, drew their weapons, and entered to investigate further. They found the house in complete disarray: drawers in each room had been opened, food and other items were scattered throughout the house, and several packages under the Christmas tree had been opened. The officers did not find anyone at the residence.

While processing the scene, the officers received a call stating that two white males with short hair had been spotted running southbound through the creek bed where the Saturn was wrecked and were hiding in a nearby culvert. The officers left the Perry residence to go check the culvert, which was only a short distance away. While at the culvert, the officers heard yelling coming from a house up on a nearby hill. One officer heard the word “cop” and some other “mumbling.” The officers returned to their car and drove to the house.

There, the two officers were met by another officer. After receiving no answer at the front door, they walked around the residence and found the garage door open. Believing they were walking into another burglary, the officers drew their guns, announced their presence, and entered the residence. They proceeded upstairs, again announcing their presence. The officers, at first, found no one and received no response. Then, one of the officers found Ryan Parsons and Raymond Parsons (the appellant) hiding in a closet in an upstairs bedroom. Neither of the Parsons lived in the house. Both were cuffed and detained. A third individual, Kamel Elburki, who did live at the house, was detained after he came out of a nearby barn.

After getting the owner’s consent, the officers conducted a thorough search of the Elburki residence. There, they found the following items that had been taken from the Perry residence: various food items, a .22 rifle, a jar full of coins, a car stereo, and a Honda motorcycle. The property stolen from the Perry residence evidently had been taken to the Elburki house earlier that day. The officers also found some wet clothes and shoes in one of the bedrooms.

The officers asked Michelle Geiler and April Chamberlain to meet them at the Elburki residence to identify the two young men they had seen running through the creek bed. Both Chamberlain and Geiler identified Raymond Parsons and his brother, Ryan Parsons, as the ones they had seen riding in the red Saturn and running in the creek. Neither thought El-burki was one of them. Chamberlain was positive that Raymond Parsons was in the Saturn when it passed them, but she did not know if he was the driver or the passenger. She was “[a] hundred percent positive” that Raymond Parsons and Ryan Parsons were the two she had seen earlier. She stated that Kamel Elburki, who was five feet tall and sixteen years old, was “entirely too little and entirely too young” to have been one of the two.

At trial, the defense called two witnesses: a latent print examiner, who testified that no latent prints of any value were recovered from the Perry residence, and Kamel Elburki. Elburki, who apparently had already been convicted and sentenced prior to Raymond Parsons’ trial, testified that he and Ryan Parsons stole the Per-rys’ red Saturn, crashed it in the field, and stole the other items. He stated that both Ryan and Raymond Parsons had stayed at his house the night before the burglary, but denied that Raymond had been involved in the burglary or in stealing the car. He also said that Raymond was not in the stolen car at all that day. Evidence also was introduced in the State’s case that, in an interview after his arrest, Raymond admitted spending the night at the Elburki residence the night before the burglary.

The jury was instructed based on a theory of accomplice liability. After deliberating for nearly four hours, the jury acquitted Raymond Parsons of burglary and stealing the rifle, but found him guilty of stealing the motor vehicle. In accordance with the jury’s recommendation, the trial court sentenced Parsons to seven years. The court also imposed a $500 fine and ordered Parsons placed in the Regimented Discipline Program, pursuant to section 217.378. The Department of Corrections later informed the court that because Parsons has “significant” mental health issues, he does not qualify for the Regimented Discipline Program. The court resen-tenced Parsons to seven years and imposed the $500 fine.

On appeal, Parsons contests the sufficiency of the evidence to support the conviction.

Standard of Review

On a challenge to the sufficiency of the evidence, appellate review is limited to determining whether there is sufficient evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). This court is charged with determining whether all of the evidence, direct and circumstantial, is sufficient to provide any rational juror with proof beyond a reasonable doubt as to each element of the crime. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). In making this determination, we accept as true all evidence that is favorable to the State, including all favorable inferences therefrom, and disregard all evidence and inferences to the contrary. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998).

Argument

In his sole point on appeal, Parsons argues that the evidence was insufficient for a reasonable jury to find him guilty of stealing the vehicle or of acting in concert with another to steal it. He contends that the evidence, when viewed in the light most favorable to the verdict, shows only that he was riding in a recently stolen vehicle with another, ran from the car after it crashed, and hid in a closet under a pile of clothing while the police searched his friend’s house. This, he claims, is sufficient only to establish guilt of second-degree tampering, at most. To support his contention, Parsons relies on Elburki’s testimony that it was Elburki and Ryan Parsons who actually stole the car. This ignores the standard of review, however, under which the evidence is viewed in the light most favorable to the verdict, and evidence and inferences to the contrary are ignored.

Accomplice Liability

All three counts against Parsons were submitted to the jury on a theory of accomplice liability, which is based on the premise that all persons who act in concert to commit a crime are equally guilty. See State v. Meuir, 138 S.W.3d 137, 143 (Mo.App.2004). Under that theory, a person with the required culpable mental state may be held criminally liable for an offense committed by the conduct of another person for which he is “criminally responsible.” Section 562.036. A person is “criminally responsible” for the conduct of another when

[ejither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.

Section 562.041.1(2). Thus, “[a]n accomplice is one who, before or during the commission of a crime, intentionally and knowingly aids or encourages the commission of a crime[.]” Meuir, 138 S.W.3d at 143. The evidence need not directly place the defendant in the act of committing the crime. State v. Carter, 849 S.W.2d 624, 627 (Mo.App.1993).

The jury found Parsons not guilty on Counts I and II, burglary and stealing the rifle; thus, the only issue is whether sufficient evidence supported the proposition that Parsons stole the Saturn or acted with his brother to steal it. In Count III, Parsons was charged with stealing a motor vehicle, in violation of section 570.030.1. A person commits the crime of stealing if he “appropriates property or services of another with the purpose to deprive him ... thereof, either without his ... consent or by means of deceit or coercion.” Stealing a motor vehicle is a class C felony. Section 570.030.3(3)(a).

To convict Parsons under an accomplice liability theory, the State was required to prove the commission of all elements of the crime by a principal, with “affirmative participation” by Parsons to aid the principal in the commission of the crime. State v. Smith, 108 S.W.3d 714, 718 (Mo.App.2003). Thus, the jury was instructed under Count III to find:

First, that on or about December 5, 2002, in the County of Platte, State of Missouri, the defendant or Ryan Parsons took a red Saturn car, property in the possession of Arlene Perry, and
Second, that defendant or Ryan Parsons did so without the consent of Arlene Perry, and
Third, that defendant or Ryan Parsons did so for the purpose of withholding it from the owner permanently, and
Fourth, that the property taken was a motor vehicle,
then you are instructed that the offense of stealing has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that stealing, the defendant acted together with or aided Ryan Parsons in committing that offense,
then you will find the defendant guilty under Count Three of stealing.

Parsons does not dispute the first four elements of this jury instruction. He concedes here (and asserted at trial) that his brother, Ryan, took the red Saturn from the Perry residence without their permission for the purpose of withholding it permanently. Parsons disputes only the final element, i.e., that he acted together with or aided Ryan in committing that offense.

Any evidence, either direct or circumstantial, that shows “affirmative participation” in aiding the principal to commit the crime is sufficient to support a conviction. State v. Puckett, 611 S.W.2d 242, 245 (Mo.App.1980). The requirement of affirmative participation may be satisfied by inference. Carter, 849 S.W.2d at 627. Some examples of circumstantial evidence that can create an inference of “affirmative participation” include presence at the scene of the crime, flight therefrom, and association with others involved before, during, and after the commission of the crime. Meuir, 138 S.W.3d at 143. Also, conduct before and after the offense that “tends to show a consciousness of guilt by reason of a desire to conceal the offense or the accused’s role therein” may create an inference of affirmative participation. State v. Lager, 744 S.W.2d 453, 456 (Mo.App.1987). Such an inference may also be drawn from the possession of recently stolen property or an attempt by an accused to deceive the police. Puckett, 611 S.W.2d at 245; see also Lager, 744 S.W.2d at 456 (“joint possession of recently stolen property will support an inference of guilt when coupled with other evidence”).

Joint Possession

Parsons concedes in his brief that, when viewed in the light most favorable to the verdict, the evidence shows he had joint possession of the stolen vehicle. He contends, though, that this evidence, alone, is insufficient to establish his guilt for stealing the vehicle. He notes that when joint possession is relied upon by the State, there must be other evidence, in addition to the possession, to connect the possessor ■with the crime. He contends that there was no evidence of anything beyond mere possession to support a finding of affirmative participation in this case.

It is true that in cases where the State relies on joint possession of recently stolen property, some additional evidence that ties the accused to the crime is required. State v. Dodson, 641 S.W.2d 115, 118 (Mo.App.1982) (citing State v. Schleicher, 458 S.W.2d 351, 353 (Mo. banc 1970); State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Cobb, 444 S.W.2d 408, 414 (Mo. banc 1969)). Conversely, courts have held that unexplained joint possession of stolen property, plus other evidence of affirmative participation, which can be established by inference, is sufficient to find guilt. See, e.g., State v. Williams, 18 S.W.3d 425, 430-31 (Mo.App.2000) (conviction affirmed where defendant was in joint possession of stolen cattle, coupled with suspicious conduct aimed at avoiding detection and making it difficult to trace the proceeds from the sale of the cattle to him); State v. White, 736 S.W.2d 499, 502 (Mo.App.1987) (conviction affirmed where defendant was in a car with stolen items, at around the time they were taken, and was sweating); State v. Wells, 729 S.W.2d 591, 593 (Mo.App.1987) (conviction affirmed where defendant had been drinking beer with an acquaintance, who pleaded guilty to stealing a pickup, at the bar from which the pickup was taken, and was seen riding in the stolen pickup).

Parsons cites several cases in which courts found the evidence insufficient to prove stealing even though the defendant was found in joint possession of stolen property, e.g., Farmer, 490 S.W.2d 72 (defendant found in vehicle with stolen cash register); State v. Schleicher, 438 S.W.2d 258 (Mo.1969) (defendant found removing stolen merchandise from a truck he did not own, with men he did not have a past association with, and no evidence of flight); State v. Goldfeder, 242 S.W. 403 (Mo.1922) (defendant found at a garage with stolen property three weeks after property was stolen).

We have reviewed all of the appellant’s cases and find none to be controlling. As noted by the State, the cases are inappo-site because the holdings were based on a lack of any inference of affirmative participation by the defendant, other than the defendant’s mere presence with the stolen items. Here, there was additional evidence of affirmative participation.

Evidence of Affirmative Participation

Parsons’ affirmative participation in stealing the vehicle may be inferred from the following:

• The night before the vehicle was stolen, Parsons and his brother Ryan stayed at the home of Kamel Elburki.
■ Elburki admitted that he and Ryan committed the burglary, and Raymond conceded at trial that Ryan stole the vehicle.
• April Chamberlain and Michelle Geiler identified Parsons as one of the two men who threw coins at them from the red Saturn; this was early in the afternoon on the same day the Saturn was stolen and within the same vicinity from which it was taken.
• Parsons and Ryan crashed the red Saturn, and both Chamberlain and Geiler identified Parsons as one of the two men they saw running away from the car in the creek bed.
• Parsons did not respond to the police officers when they announced their presence at the Elburki residence near where the Saturn was wrecked.
• In that residence, the officers found Parsons hiding under a pile of clothes and other items stolen from the Per-rys.

This evidence is sufficient to prove stealing under the theory of accomplice liability because it shows that Parsons had voluntarily associated himself with those who committed the burglary and stole the vehicle both before and after the crime. It also shows that Parsons was in joint possession of the stolen vehicle in open association with his brother, Ryan, whom Parsons concedes was involved in stealing it. Companionship before and after an offense is a circumstance from which one’s participation in the crime may be inferred. Lager, 744 S.W.2d at 456. Parsons’ flight from the crashed, stolen vehicle and his obvious evasion of the police in close proximity to the time and place of the theft, when coupled with the joint possession, establishes an inference of guilt from which a reasonable juror could infer that he voluntarily associated himself with the stealing of the vehicle. An attempt by a defendant to cover up his involvement is a factor that may, in conjunction with other evidence, support the inference of affirmative participation as an accomplice. Smith, 108 S.W.3d at 721; see also Wells, 729 S.W.2d at 593 (although flight to avoid arrest or prosecution will not sustain a conviction by itself, it is a circumstance indicating guilt).

“Although isolated facts viewed individually may not support more than a suspicion of guilt, ... a conviction may rest upon accumulated, inter-dependent facts, no one of which may create more than a suspicion of guilt.” State v. Plant, 694 S.W.2d 751, 755 (Mo.App.1985). Here, the “totality of the circumstances” constitutes sufficient evidence of Parsons’ guilt. See State v. Shockley, 98 S.W.3d 885, 890 (Mo.App.2003). A reasonable juror could infer that because Parsons associated with others involved in the crime both before and after the crime, jointly possessed (without explanation) the stolen vehicle in the same time frame it was stolen and within a short distance from where it was stolen, ran from the vehicle to avoid detection, and attempted to deceive the police by hiding in a residence with other stolen merchandise, he aided or acted together with Ryan in stealing the red Saturn.

When reviewing the sufficiency of evidence to support a criminal conviction, we give great deference to the trier of fact. Chaney, 967 S.W.2d at 52. We are not to act as a “ ‘super juror’ with veto powers” over the fact-finder. Grim, 854 S.W.2d at 414. Here, the jury chose not to believe the testimony of Elburki, and instead relied upon the State’s evidence. Given the totality of the circumstances in this case, our deferential standard of review, and the jury’s entitlement to determine the reliability, credibility, and weight of the witnesses’ testimony, we find that there was sufficient evidence that Parsons actively participated in the crime to support a finding of guilt based on accomplice liability.

Conclusion

For the foregoing reasons, the judgment is affirmed.

LOWENSTEIN and EDWIN H. SMITH, JJ., concur.

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

      . This is a consolidation of Parsons’ appeals from the original sentencing and from the resentencing.

      . Pursuant to section 569.090.1(2), a person commits second-degree tampering if he "[u]n-lawfully rides in or upon another's automobile....” Second-degree tampering is a class A misdemeanor. Section 569.090.3.


text:
    Sean FISK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63374.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Andrew Schroeder, Appellate Defender Office, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Assistant Attorney General, Jefferson City, for respondent.
    Before PATRICIA A. BRECKENRIDGE, Presiding Judge, PAUL M. SPINDEN, Judge, and JAMES M. SMART, JR., Judge.
   ORDER

Sean Fisk appeals the circuit court’s judgment denying his Rule 29.15 motion for post-conviction relief after an eviden-tiary hearing. We affirm. Rule 84.16(b).


author: RONALD R. HOLLIGER, Judge.

text:
    Richard Lee HASKETT, Respondent, v. STATE of Missouri, Appellant.
    No. WD 63516.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Eaton, Office of Attorney General, Jefferson City, for appellant.
    Sarah Weber Patel, Appellate Defender Office, Kansas City, for respondent.
   RONALD R. HOLLIGER, Judge.

The State of Missouri appeals from a motion court judgment setting aside Richard Lee Haskett’s guilty plea under Rule 24.035 to first degree assault, first degree burglary, and violation of a protection order. The State contends that the judgment is clearly erroneous because the motion court ruled that Haskett’s plea was involuntary based on allegations of ineffective assistance of counsel even though the court found that Haskett’s counsel acted as a reasonably competent attorney would have under similar circumstances. Because the motion court failed to make a crucial fact finding that prevents our proper review of the judgment and because it failed to rule upon one of the grounds for relief, we reverse and remand the cause for further findings.

Facts

In December 2001, Haskett and his wife of nearly 20 years, Nancy Gentry, were in the process of divorcing. Haskett was no longer living in the marital home where Gentry and the couple’s two children continued to reside. An order of protection was in place preventing Haskett from legally coming to the residence.

Early on the morning of December 12, 2001, Haskett entered the garage of the marital home where Gentry found him. A physical altercation ensued beginning in the garage and spilling onto the driveway. The severity and circumstances of the altercation are the subject of much dispute between Haskett and Gentry. Evidence was adduced at Haskett’s sentencing hearing, pursuant to his guilty plea, that Hask-ett struck Gentry several times, that he kicked her in the head, and that Gentry suffered serious injuries as a result of the altercation.

Haskett claimed that his sole purpose for entering the garage was to inventory his property in an attempt to finalize a settlement agreement with Ms. Gentry. He further said that he thought Gentry was out of the house when he entered the garage. Haskett insists that Gentry initiated the altercation by swinging a board at him and that, contrary to eyewitness testimony, he only struck Gentry one time.

After the altercation, Haskett turned himself in to the police and hired counsel. The State charged Haskett with assault in the first degree, Section 565.050; burglary in the first degree, Section 569.160; and violation of a protection order, Sections 455.045 and 455.085. Haskett was 40 years old at the time and had never before faced a criminal charge.

On July 25, 2002, Haskett chose to plead guilty to the charges and filed a guilty plea petition. At the plea hearing, the State alleged that on December 12, 2001, Hask-ett entered the garage, struck and kicked Gentry several times. Haskett’s attorney re-characterized the severity of the incident but did concede that Haskett struck Gentry at least two times. Haskett agreed with the judge’s assertion that his conduct constituted a class B felony of assault in the first degree. After extensively examining Mr. Haskett the judge determined that a factual basis existed for Haskett’s plea and that the plea was voluntarily and intelligently made. Haskett was sentenced on September 5, 2002, to concurrent sentences of ten years in prison for the assault and for the burglary, and one year in the Platte County Jail for violation of an order of protection.

Haskett filed a pro se motion for post-conviction relief on November 21, 2002. An amended motion requesting an eviden-tiary hearing was subsequently filed. The amended motion alleged that Mr. Hask-ett’s rights to due process of law and to effective assistance of counsel were violated when his plea counsel: (1) failed to inform Mr. Haskett that if he took his case to trial he would have the opportunity to request that the court submit lesser-included offenses for assault in the first degree, such as assault in the second degree, and assault in the third degree; (2) misinformed Mr. Haskett that if he pleaded guilty to assault in the first degree, he would most likely serve only about a third of the sentence before he was placed on parole; (3) misled Mr. Haskett into believing that he was pleading guilty to assault in the first degree based on the factual basis of striking Nancy Gentry one time, rather than repeatedly striking her, and that he was pleading guilty to burglary in the first degree based on the factual basis of remaining in an inhabitable structure with the intent to violate an order of protection, not with the intent to commit an assault; and (4) failed to call Dr. Dennis Cowan, a licensed psychologist, to testify on Haskett’s behalf at sentencing.

An evidentiary hearing was held on July 25, 2003. On October 20, 2003, the court issued findings of fact and conclusions of law finding that Haskett’s attorney “acted as a reasonable competent attorney would have under similar circumstances,” but sustaining Haskett’s post-conviction relief motion alleging ineffective assistance of counsel on three of the four grounds alleged in the amended motion. The court held specifically:

This Court finds that [Haskett’s attorney] acted as a reasonable competent attorney would have under similar circumstances however this Court believes that if Mr. Haskett had fully and completely understood (1) that at trial, he would have had the opportunity to submit lesser included offenses of assault in the first degree; (2) that he would be required to serve 85% of a sentence for assault in the first degree; (3) that Dr. Cowan was not going to be called at the sentencing hearing to testify on Mr. Haskett’s behalf, he would not have pled guilty, but would have insisted on going to trial, (emphasis in original).

The motion court ordered a new trial and the State now appeals. No findings were made regarding the allegation concerning the factual basis for the assault and burglary charges.

Standard of Review

Review of a motion for post-conviction relief is limited to determining whether the judgment of the motion court is clearly erroneous. Wofford v. State, 78 S.W.3d 725, 727 (Mo.App.2002). Findings of fact and conclusions of law are clearly erroneous only if the appellate court is left with the definite impression that a mistake has been made. Id. After a plea of guilty, effectiveness of counsel is relevant only to the extent it affects the voluntariness of a plea. Bailey v. State, 773 S.W.2d 152, 153 (Mo.App.1989). Haskett must satisfy the two-pronged Strickland test to meet his burden: (1) that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) that Haskett was thereby prejudiced. Bucklew v. State, 38 S.W.3d 395, 397 (Mo. banc.2001); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Should Haskett fail to satisfy either prong, ineffective assistance or prejudice, the appellate court on review need not consider the other. State v. Allen, 954 S.W.2d 414, 417 (Mo.App.1997).

Rule 24.035(j) requires the court to make findings of fact as to all grounds for relief presented. Generally, the failure to make findings as to all issues requires remand for supplementation of the record. An exception applies, however, where the record supports a finding that the defendant is not entitled to relief as a matter of law on the ground alleged. White v. State, hi S.W.3d 341, 343 (Mo.App.2001).

Although the failure of the motion court to make findings regarding this issue has not been raised by the parties, we remand for a finding on this ground since a remand is necessary on other issues for additional findings.

Analysis

Misinformed about parole

Because the lack of a necessary finding about the parole issue necessitates a remand for additional findings we take that issue up first. The state appeals the motion court’s finding that Haskett was entitled to post-conviction relief because he did not understand that he would be required to serve 85 of his sentence for assault in the first degree prior to being eligible for parole. Haskett claims that his plea was involuntary and asserts that his attorney misinformed him that if he pleaded guilty to assault in the first degree he would most likely serve only about a third of his sentence before he was placed on parole.

Generally, information about parole is a collateral consequence that neither trial counsel nor the court must inform the defendant of in order for a guilty plea to be voluntary and intelligent. Savage v. State, 114 S.W.3d 455, 458 (Mo.App.2003). Missouri law makes a distinction between a defendant not being informed about possible parole and being affirmatively misinformed about possible parole. Id. (“Erroneous advice about collateral consequences can affect the voluntariness of a guilty plea”). “[W]hen a movant for post-conviction relief claims he made his guilty plea involuntarily because counsel misled him, the test applied is whether the movant’s belief was reasonable.” Krider v. State, 44 S.W.3d 850, 857 (Mo.App.2001). “A mistaken belief is reasonable only when it is based on a positive representation upon which the movant is entitled to rely.” Id. Additionally, Haskett must show that manifest injustice resulted from acceptance of his guilty plea. Peterson v. State, 444 S.W.2d 673, 676 (Mo.1969); Knight v. State, 760 S.W.2d 559, 564 (Mo.App.1988). In other words, in order for Haskett to prevail on this point, he must show that his attorney made an affirmative representation that he was entitled to rely upon and that a manifest injustice occurred as a result.

Haskett’s attorney testified that he advised Haskett accurately, but conceded that Haskett might have been confused since there were various charges and different minimum sentence percentages corresponding to each charge. Conversely, Haskett testified that his attorney informed him, prior to his guilty plea, that he would be eligible for parole in three years.

The motion court made no finding whether Haskett’s plea counsel misinformed him about parole in reaching the conclusion that Haskett’s counsel was effective. Nevertheless, the motion court ruled that Haskett’s plea should be set aside because he didn’t completely understand that “he would be required to serve 85 percent of a sentence for assault in the first degree.”

Haskett was not required to understand the parole consequences in order for his guilty plea to be voluntary. Absent an affirmative misrepresentation to Hask-ett by his attorney about possible parole, Haskett cannot use a misunderstanding about his parole to now argue that his plea was involuntary. Parole eligibility is a collateral consequence and a guilty plea will not be overturned on account of a collateral consequence unless there is a “positive representation on which the mov-ant is entitled to rely.” Krider, 44 S.W.3d at 857. In this ease any “positive representation” (or misrepresentation) about parole is a disputed issue that the motion court had the luxury of live testimony to sort out and this court defers to credibility determinations of the motion court. Hubbard v. State, 31 S.W.3d 25, 34 (Mo.App.2000). The court, however, made no credibility finding. Haskett argues that an implied finding that the motion court believed Haskett is consistent with the motion court’s judgment setting aside his guilty plea. But the rule that findings will be implied as consistent with the judgment has no application in post-conviction cases. Crews v. State, 7 S.W.3d 563, 567 (Mo.App.1999).

Since the motion court found after an evidentiary hearing that counsel was effective, the State argues that we must conclude that the motion court did not believe that Haskett’s attorney mislead him. While such an argument could reasonably be made it is not so strong and convincing that we can declare as a matter of law that the findings are or are not consistent. This is particularly true where the omitted finding deals solely with a credibility issue.

The cause is reversed and remanded with instructions that the motion court make additional findings and rulings consistent with this opinion.

THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

      . Section 558.019.3 states that “any offender who has pleaded guilty to or has been found guilty of a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court.” Section 556.061(8) includes assault in the first degree in the definition of dangerous felony.