author: JAMES K. PREWITT, Judge.

text:
    In the Matter of the Care and Treatment of Ronald GIBSON, a/k/a Ronald R. Gibson, a/k/a Ronald L. Gibson, Appellant-Respondent, v. State of Missouri, Respondent-Cross Appellant.
    Nos. 25482 and 25689.
    Missouri Court of Appeals, Southern District, Division One.
    April 12, 2004.

      Emmett D. Queener, Columbia, MO, for appellant-respondent.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gary L. Gardner, Assistant Attorney General, for respondent-cross appellant.
   JAMES K. PREWITT, Judge.

The State of Missouri petitioned the Probate Division of the Circuit Court of Howell County (“trial court”), seeking to confine Ronald L. Gibson (“Appellant”) as a sexually-violent predator. Following jury trial, Appellant was adjudicated a sexually-violent predator pursuant to § 632.480, RSMo 2000, and ordered “committed to the custody of the director of the Department of Mental Health for control, care and treatment until such time as [Appellant’s] mental abnormality has so changed that he is safe to be at large.”

The commitment followed Appellant’s confinement for sodomy, in violation of § 566.060, RSMo 1994. In 1998, Appellant entered an Alford plea of guilty to the sodomy charge (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)), and, pursuant to the plea agreement between him and the State, he was sentenced to a maximum sentence of three years’ imprisonment.

Appellant contends that the trial court erred in denying a motion to dismiss filed on his behalf and raises three points on appeal. In the first point, he argues his right to due process was denied in that his plea agreement did not contemplate the filing of a petition for civil commitment upon completion of his sentence for sodomy. His two remaining points assert equal protection violations; one relating to differences between § 632.483, RSMo 2000, and § 632.484, RSMo 2000, regarding whether the State is required to have the person examined by a psychiatrist or psychologist before filing the petition, and the other relating to the failure of the sexually-violent predator law to provide for less restrictive alternatives to secure confinement.

The State filed a cross appeal, also addressed in this opinion, in which it asserts that it was entitled, pursuant to § 491.030, RSMo 2000, to compel Appellant to testify at trial as an adverse party, and that the trial court erred by refusing to allow Appellant to so testify.

Appellant’s Point I — Did the sexually violent predator proceedings violate the plea agreement?

In his first point, Appellant asserts that the trial court erred in denying his motion to dismiss the petition, violating his due process rights under the United States and Missouri Constitutions, because the guilty plea did not contemplate the State’s filing of a petition for civil commitment at the completion of the sentence served pursuant to the plea agreement. According to Appellant, he filed the motion to dismiss as a means to secure the State’s specific performance of the plea agreement. Appellant also argues as part of this point that the sexually-violent predator law was not enacted until almost a year after he entered his Alford plea; thus, he was never advised that a subsequently-enacted law would be applied to him retroactively.

Section 632.480(5), RSMo 2000, defines “sexually violent predator” as

any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475, RSMo, and statutes in effect before August 13,1980.

Appellant does not question that sodomy, a violation of § 566.060, RSMo 1994, is a sexually-violent offense or that he entered an Alford plea of guilty to that offense. Part of Appellant’s argument, however, does question whether the sexually-violent predator act (“SVP act”), enacted on January 1, 1999, after he entered his Alford plea in 1998, may be applied to him.

Although it appears that this issue has not been raised on appeal previously in Missouri, many of the cases considered by the Missouri courts have included fact scenarios under which the person the State sought to confine under the SVP act had pled guilty to a sexually-violent offense prior to January 1, 1999. See Amonette v. State, 98 S.W.3d 593, 595 (Mo.App.2003), In re Henson, 97 S.W.3d 67, 68 (Mo.App.2002), In re Care of Coffman, 92 S.W.3d 245, 247 (Mo.App.2002), In re Care and Treatment of Smith, 83 S.W.3d 116, 117 (Mo.App.2002), Care and Treatment of Schottel v. State, 121 S.W.3d 337, 338 (Mo.App.2003). We acknowledge that some of the above cases were reversed and remanded for new trials on issues such as jury instructions.

That the date of a guilty plea to a sexually-violent offense is of no consequence to the proceedings under the SVP act is also in line with the determination in Missouri and other states that the SVP act is civil in nature, not criminal, and that involuntary commitment under the statute is not punitive. See e.g., State ex rel. Nixon v. Askren, 27 S.W.3d 834, 840-41 (Mo.App.2000); In re Detention of Bailey, 317 Ill.App.3d 1072, 251 Ill.Dec. 575, 740 N.E.2d 1146, 1150 (2000); Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In essence, the SVP act in Missouri is not a criminal statute; rather, it is a civil commitment law that is not a part of the criminal case. Morales v. State, 104 S.W.3d 432, 436 (Mo. App.2003) (holding of case was that counsel did not render ineffective assistance of counsel by failing to inform movant of the possible civil commitment under the SVP act, deemed a collateral consequence of movant’s guilty plea).

This line of reasoning is supported in cases from other states that have directly addressed the issue of the effect of a plea agreement on the SVP proceedings. In In re Care and Treatment of Hay, 263 Kan. 822, 953 P.2d 666, 676 (1998), the Kansas Supreme Court found the appellant’s assertion that the filing of a commitment petition violated his plea agreement without merit. Id. Similar to the Missouri Morales case, the Kansas Supreme Court noted that civil commitment following the completion of a sentence for a crime was collateral to the plea and independent of the criminal case. Hay, 953 P.2d at 676. The Court further noted that whether Hay was a sexually-violent predator was determined by his mental abnormality and present propensity to be dangerous. Id.

Cases in Florida have reached the same result. In Murray v. Regier, 872 So.2d 217 (Fla.2002), the Florida Supreme Court concluded “that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” Id. at 224. A recent Florida appellate case reiterated the conclusion of the Florida Supreme Court in Murray, as the appellate court stated that any rights a defendant may have had under a plea agreement pertain only to the criminal sanctions against him and “are totally irrelevant to the subsequent separate civil proceedings against him under the [SVP act].” In re Commitment: Cartwright, 870 So.2d 152, 154 (Fla.App.2004).

As for any argument that Appellant makes as part of this point that an Alford plea does not “count” under § 632.480(5)(a), RSMo 2000, which defines sexually-violent predator as someone who has pled guilty or been found guilty of a sexually-violent offense, we disagree with his contentions. Appellant draws the Court’s attention to a California case, People v. Yartz, 109 Cal.App.4th 1660, 1 Cal.Rptr.3d 306 (Cal.App.2003), and acknowledges that the case is not citable (and considered de-published by the California courts) as it has been superseded by a grant of review by the California Supreme Court. Thus, we mention the case, in which a California appellate court considered whether the defendant’s conviction resulting from a plea of no contest could be used in a subsequent SVP proceeding to prove that the defendant was convicted of a sexually-violent offense against two or more victims, with caution and only because Appellant bases some of his arguments in this point on those presented in the Yartz case. 109 Cal.App.4th at 1662, 1 Cal.Rptr.3d 306. We note the appellate court’s conclusion that such a conviction could not be used for the purposes of the SVP proceeding was at least partly based on the fact that the California statute in place at the time of the defendant’s plea specifically indicated that a plea of no contest could not be used as an admission in a subsequent civil proceeding “based upon or growing out of the act upon which the criminal prosecution is based.” Id.

In our view, Missouri law answers this question regarding whether an Alford plea of guilty would count under § 632.480(5)(a), RSMo 2000. Under Missouri law, an Alford plea is a conviction so long as the sentence is imposed, which it was here. See State v. Henry, 88 S.W.3d 451, 454-55 (Mo.App.2002); see also M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo.banc 1995).

We find no merit in Appellant’s Point I, and it is denied.

Point II — Equal protection issue relating to §§ 632483 and 63248k, RSMo 2000

In Point II, Appellant raises an equal protection claim, and contends that the trial court erred in denying his motion to dismiss because § 632.483, RSMo 2000, did not require an examination by a psychiatrist or psychologist before the State could file its petition for civil commitment against Appellant, as he was a person confined in the Department of Corrections. Section 632.484, RSMo 2000, does impose such a requirement before a petition may be filed against someone not confined in the Department of Corrections. This difference, according the Appellant, violated his rights to equal protection under the law guaranteed by the United States and Missouri Constitutions. Appellant was initially evaluated by a licensed social worker.

The Missouri Supreme Court has recently addressed this issue in In re Care and Treatment of Norton, 123 S.W.3d 170, 175-76 (Mo.banc 2003). The Supreme Court held that, under the 2000 version of the statute in place when Norton’s SVP proceedings (the same statute in place at the time of Appellant’s SVP proceedings), both classes of persons subjected to the civil commitment statutes (those confined in the Department of Corrections and those not so confined) must receive the evaluation of a qualified professional prior to trial, and such evidence is presented to the trier of fact. Id. at 176. The Court also noted that under § 632.489, RSMo 2000, those detained in the Department of Corrections are allowed the opportunity to be evaluated by a psychiatrist or psychologist of their choosing, in addition to the evaluation conducted by the Department of Mental Health. Id.

Thus, according to the Court, individuals within both classes are equally evaluated prior to any determination of whether he or she meets the definition of a sexually-violent predator. Id. Therefore, here as in Norton, there is no equal protection issue related to any differences between §§ 632.483, RSMo 2000, and 632.484, RSMo 2000.

Point II is denied.

Point III — Equal protection issue related to least restrictive environment

In his final point, Appellant raises another equal protection claim. In Point III, he contends that those found to be sexually-violent predators under the SVP act must be treated similarly to other persons involuntarily committed to the Department of Mental Health due to a mental condition or potential danger, who are entitled to treatment in the least restrictive environment.

Norton is dispositive to this point as well. Within Norton, the Missouri Supreme Court addressed this issue and determined that the SVP act does not deny equal protection of law for failing to provide less restrictive alternatives to secure confinement for those found to be sexually-violent predators. 123 S.W.3d at 174-75. The Missouri Supreme Court concludes in Norton that the secure confinement of sexually-violent predators, as provided in the SVP act, is narrowly tailored to serve Missouri’s compelling state interest of protecting the public from crime, and that this justifies different treatment of persons adjudicated as sexually-violent predators because there is a substantial probability that such persons will commit future crimes of sexual violence if not confined to a secure facility. Id. at 174.

Appellant Point III is denied.

The State’s cross appeal

In its cross appeal, the State raises one point, that the trial court erred by refusing to allow Appellant to testify when called as a witness at the trial. The State argues that under § 491.030, RSMo 2000, it is entitled to compel Appellant’s testimony as that of an adverse party because his testimony on the issues of mental abnormality and likelihood of engaging in future sexual violence would enhance the reliability of decision making on those issues.

The State acknowledges that this becomes an issue only if we had reversed the trial court’s decision and remanded for a new trial. Given our determination regarding Appellant’s points on appeal, we decline the opportunity to render an advisory opinion or decide an issue when it is unnecessary to do so. See Stewart v. Reynolds, 84 S.W.3d 569, 573 (Mo.App. 2002).

Conclusion

The judgment of the trial court is affirmed.

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

      . We note that § 632.483 was amended, effective August 28, 2002, and now requires an initial determination by a psychiatrist or a psychologist. § 632.483.2(3); In re Care and Treatment of Norton, 123 S.W.3d 170, 175 n. 20 (Mo.banc 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NEW FREEDOM MORTGAGE CORPORATION, Respondent, v. METROPOLITAN CREDIT CONSULTANTS, INC., James L. Miller and Sandra Miller, Appellants.
    No. ED-85057.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 4, 2005.
    Daniel R. Schramm, Chesterfield, MO, for appellants.
    John R. Sears, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Metropolitan Credit Consultants, Inc., and James L. and Sandra Miller (collectively “the Millers”) appeal the judgment of the Circuit Court of St. Louis County denying their motion to set aside a $274,519.63 judgment in favor of New Freedom Mortgage Corporation (“New Freedom”).

After reviewing the briefs of the parties and the record on appeal, we find that the trial court did not abuse its discretion in denying the Millers’ motion to set aside the judgment. Tinsley v. B & B Engines, Inc., 27 S.W.3d 859, 861 (Mo.App. E.D. 2000); Preferred Laser Services, Inc. v. Abate, 117 S.W.3d 678, 680 (Mo.App. E.D. 2003). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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


text:
    Harry HALL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85272.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 4, 2005.
    Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Harry Hall (“Movant”) was convicted of one count of attempted armed robbery in the first degree, one count of burglary in the first degree and one count of armed criminal action. Movant was sentenced to three concurrent terms of fifteen years imprisonment. Movant filed a direct appeal and this Court affirmed Movant’s conviction in State v. Hall, 81 S.W.3d 577 (Mo.App. E.D.2002). Movant now appeals from the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing.

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

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


author: NANNETTE A. BAKER, Judge.

text:
    Linda S. BOZARTH, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 84813.
    Missouri Court of Appeals, Eastern District, Northern Division.
    July 12, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Alice M. Wortman, Jefferson City, MO, for appellant.
    Branson L. Wood III, Hannibal, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Director of Revenue (“Director”) appeals from a judgment of the trial court reversing the driver’s license suspension of Linda S. Bozarth (“Bozarth”) from a charge of driving while intoxicated. We find no error and affirm.

Background

Bozarth was stopped on January 8, 2004, for driving with expired tags. She was pulled over by Sergeant Greg Leftwich (“Sgt. Leftwich”) of the Missouri State Highway Patrol. Sgt. Leftwich testified that as he approached Bozarth, he observed signs of possible intoxication, including bloodshot eyes, slurred speech and the odor of alcohol. After requesting that Bozarth step out of her vehicle, Sgt. Left-wich conducted four field sobriety tests: an alphabet test, a backwards counting test, a horizontal gaze nystagmus (“HGN”) test and a portable breath test (“PBT”). Based on the results of these tests and his experience, Sgt. Leftwich arrested Bozarth for driving while intoxicated.

Sgt. Leftwich took Bozarth to the Marion County Sheriffs Department, read her the implied consent law and administered a breath test with a DataMaster instrument. Before administering the breath test, Sgt. Leftwich observed Bozarth for fifteen minutes. Bozarth removed her false teeth, did not smoke or vomit during that time, and did not put anything in her mouth. Sgt. Leftwich testified that on January 8, 2004 he held a valid Type III permit, which authorized him to operate the DataMaster instrument.

The first two times Sgt. Leftwich attempted to administer the breath test, the test produced invalid readings. Bozarth was unable to blow enough air into the machine to register a complete sample. On Bozarth’s third attempt, Sgt. Leftwich used the manual override feature, a no volume button (“NV button”) to obtain a blood alcohol concentration (“BAC”) reading. The reading was greater than .08%. Sgt. Leftwich testified that use of the NV button produces artificially lower results than a reading not using the override button.

Bozarth’s driving privileges were suspended pursuant to Section 302.505, for driving while intoxicated. Bozarth filed a Petition for Trial de novo in the Circuit Court of Marion County, and filed a Motion in Limine to exclude the results of the breath test.

Standard of Review

When a trial court reinstates a driver’s driving license after it has been revoked or suspended, the appellate court will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. Rundquist v. Dir. of Revenue, 62 S.W.3d 643, 645 (Mo.App. E.D.2001). We view the evidence and all necessary inferences based on the evidence in the light most favorable to the judgment. Hansen v. Dir. of Revenue, 22 S.W.3d 770, 772 (Mo.App. E.D.2000). In a driver’s license revocation proceeding, the trial court is accorded wide discretion on factual issues and the conclusions that follow. Id.

Discussion

Section 302.505.1, permits the department of revenue to suspend or revoke the driver’s license of any person arrested upon probable cause of driving while intoxicated. An aggrieved driver can seek a trial de novo. Verdoom v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). At the trial, the director has the burden of establishing a prima facie case for suspension of a driver’s license by presenting evidence that at the time of the arrest: (1) there was probable cause for arresting driver for driving under the influence; and (2) that the alcohol concentration in driver’s blood was .08 percent or more. Vernon v. Dir. of Revenue, 142 S.W.3d 905, 909 (Mo.App. S.D.2004). The burden of proof is on the director of revenue to establish grounds for the suspension or revocation by a preponderance of the evidence. Id.

Once the director makes a prima facie showing of probable cause of driving while intoxicated, the driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. Ver-doom, 119 S.W.3d at 546. The rebuttal evidence should challenge the presumption of validity established by the director’s prima facie ease; but the driver’s burden is one of production — not persuasion. Id. The director retains the burden of proof throughout the proceeding. Id.

In her sole point on appeal, Director claims that the trial court erred in setting aside the suspension of Bozarth’s driving privileges. Director argues that she made a prima facie case, showing by a preponderance of the evidence that Sgt. Leftwieh had probable cause to arrest Bozarth for driving while intoxicated, and that at the time of arrest, Bozarth had a BAC of greater than .08%. Therefore, according to Director, the trial court erred when it entered judgment for Bozarth, finding that the Director did not meet her prima facie burden when she failed to prove by a preponderance of the evidence that Bo-zarth’s BAC was more than .08%. Director also argues that Bozarth’s Motion in Li-mine did not preserve her objection to the results of the BAC for appeal.

Addressing the second prong of the requirements for a prima facie case, we consider the trial court’s decision not to allow the breath test to be admitted. Director cites Bradford v. Dir. of Revenue for the proposition that the arresting officer’s use of the manual override NV button does not invalidate the BAC test, and thus, the trial court erred in excluding this evidence. 72 S.W.3d 611 (Mo.App. E.D. 2002). At first blush, Bradford appears to be similar to the case before us. However, in Bradford the driver did not object to the admission of the BAC test. Id. at 613. When a breathalyzer test is used to establish a driver’s blood alcohol content, foundational prerequisites to admission must be met. Dale v. Dir. of Revenue, 40 S.W.3d 396, 399 (Mo.App.E.D.2001). To lay this foundation, Director must establish three elements: 1) the test was performed by following approved techniques and methods of the Division of Health, 2) the operator held a valid permit, and 3) the equipment and devices were approved by the Division. Id. The foundational prerequisites are unnecessary where the test result is admitted in evidence without objection. Id. The requirement of proof of compliance with the regulation only becomes an issue, however, if a proper, timely objection is made to the admission of the blood alcohol analysis. Krieger v. Dir. of Revenue, 14 S.W.3d 697, 701 (Mo.App.E.D.2000). Because there was no objection made in Bradford, the Director did not have to establish the foundational prerequisites to admission.

Director claims that Bozarth failed to properly object to the introduction of the test results and therefore the results should have been admitted. Prior to trial, Bozarth filed a Motion in Limine requesting that the court exclude all evidence of the breath test. In the motion, Bozarth asserted that the foundation requirements for admissibility of the breathalyzer had not been met. In addition, the motion stated that the Director failed to meet his [sic] burden that the breathalyzer test was administered properly. The record indicates that Bozarth requested that the Motion in Limine be taken with the case to preserve the objection and the Director agreed. Furthermore, Bozarth reiterated her objection to the introduction of the test results during the testimony of Sergeant Leftwich.

Director asserts that since Bozarth did not make a motion to strike following her objection to the BAC test results, the question of the test’s admissibility is not reviewable. Relying on State v. Bartholomew, Director argues that when a party requests that an objection be taken with the ease, this alone is not enough to preserve the objection for appeal; the party must also later restate the objection and make a motion to strike. 829 S.W.2d 50 (Mo.App.W.D.1992). However, in Bartholomew, the results of the breathalyzer test had already been admitted. Id. at 53. In this case, the results of the breathalyzer test were never admitted. It was, therefore, unnecessary for Bozarth to make a motion to strike. The trial court found that the objection was proper, and we agree.

Since Bozarth made a timely and proper objection to the admission of the BAC test, the Director had to meet the foundational prerequisites in order to have the breath test admitted into evidence. Two of the foundational elements were established during trial, however the requirement that the test was performed following approved techniques and methods of the Division of Health is at issue.

This case is remarkably similar to Vernon, 142 S.W.3d 905. In Vernon, when the Type III Permit holder administered the breathalyzer test to the driver, the blank test taken immediately after the driver’s sample yielded a result of .001 rather than the expected .000. Id. at 908. The trial court admitted the results of the breathalyzer test over objection by the driver that Director had failed to show that the test was performed in accordance with the Missouri Department of Health (“MDH”) rules and regulations. Id. at 907. The Southern District found that nothing in the MDH rules or regulations allows for any variance in a blank test, or established an acceptable deviation from the expected reading of .000 in a blank test. Id. at 910. Thus, the court held that the results of the breathalyzer test should not have been admitted, and reversed the trial court’s judgment, ordering the driver’s driving privileges to be reinstated. Id. at 911.

Bozarth contends that Director failed to meet the foundational requirements in that the test did not follow approved techniques and methods of the Division of Health. Pursuant to 19 CSR 25-30, form 7, the MDH operational checklist for the Data-Master unit has seven steps:

1. Subject observed for 15 minutes by [operator]. No smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period.
2. Assure that the power switch is ON.
3. Press RUN button.
4. When display requests INSERT TICKET, insert evidence ticket.
5. Enter subject and officer information.
6. When display reads PLEASE BLOW and gives audible beep, take subject’s breath sample.
7. When printer has completed printing out test result, remove ticket from printer. Attach printout to this report.

Both Sgt. Leftwich and Trooper Shane Stone (“Tr. Stone”), of the Missouri State Highway Patrol testified that the use of the NV button to obtain a valid sample result is not included in the instructions on administration of the DataMaster breathalyzer. When questioned by Bozarth’s attorney, Sgt. Leftwich answered that there was nothing in the checklist about hitting the NV button, and agreed that using the button was a step he added in between step six and step seven on the checklist.

The trial court found that neither Sgt. Leftwich nor Tr. Stone were generally knowledgeable about the invalid sample result except by referring to the operator and supervisor’s manuals. The trial court also found that the testimony of Sgt. Left-wich and Tr. Stone was not credible evidence that the test was performed by techniques and methods approved by the MDH. Consequently, the trial court found that the Director had failed to prove that the test was performed in accordance with techniques and methods approved by the Department of Revenue [sic], and held the breathalyzer test results to be inadmissible. We agree with the trial court that the Director failed to meet her burden of proof.

In a very recent case, the Southern District addressed the issue of whether the use of the NV button invalidates the results of the BAC. Spinner v. Dir. of Revenue, 165 S.W.3d 228 (Mo.App. S.D. 2005). The driver in Spinner had his driver’s license suspended for driving while intoxicated. Id. at 229-30. After a trial de novo in the Circuit Court of Howell County, the trial court upheld the suspension of driver’s license, based on the BAC test. Id. The driver had difficulty giving an adequate sample, and the Type III operator pressed the NV button to override the test. Id. at 230-32. The trial court held that the use of the NY button did not invalidate the sample, and that the test was reliable. Id. The Southern District affirmed the judgment of the trial court, holding that the driver was not prejudiced by the use of the NY button. Id. at 232.

The case at hand is distinguishable from Spinner in several ways. In Spinner, the Southern District upheld the trial court’s decision to suspend the driver’s driving privileges. Id. During the trial, Type II permit holder, Thomas Poindexter (“Poin-dexter”), opined that he had been instructed by personnel from the Department of Health that the NV button was to be used in situations when an officer feels that the individual has given a fair and accurate breath sample, albeit not a complete one due to health reasons. Id. at 230-32. He also testified that he was not aware of any prohibition within the MDH regulations against the use of the NV button. Id. Further, Poindexter explained that using the NV button produces a lower reading on the subject’s alcohol content, because it measures less of a deep lung sample. Id.

In the present case, the trial court found the testimony of both Sgt. Leftwieh and Tr. Stone not to be credible evidence that Bozarth’s BAC test was performed according to the techniques and methods approved by the MDH. The court also found that neither man was very knowledgeable about the invalid sample result. Sgt. Left-wich and Tr. Stone each testified that they had been trained to use the NV button when a subject was not able to provide a complete sample, but neither testified by whom they had been trained, or that the MDH had ever instructed them on the use of the NV button. Neither man knew why a breath sample taken with use of the NV button would produce a lower reading than a complete sample. According the trial court wide discretion on its findings of fact and conclusions of law, we are not persuaded that the trial court should have admitted the results of Bozarth’s BAC test.

Without the result of the breathalyzer test, the Director is unable to establish a prima facie showing of Bozarth’s driving while intoxicated. Thus, we need not address the issue of probable cause.

Judgment affirmed.

GEORGE W. DRAPER III, C.J., and GLENN A. NORTON, J., concur.

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

      . Although the judgment reads Department of Revenue, we assume that the trial court meant Department of Health.


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

text:
    In the ESTATE OF Ross E. JOHNSON, Sr., Deceased; Zel M. Fischer, Personal Representative, Respondent Pro Se, v. Theodore M. KRANITZ, Appellant.
    No. WD 63732.
    Missouri Court of Appeals, Western District.
    July 26, 2005.

      David Bryant King, III, Platte City, MO, Arguing on behalf of Appellant.
    Respondent Acting Pro Se.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   JAMES M. SMART, JR., Judge.

Theodore M. Kranitz appeals an order of commitment entered in connection with a judgment of contempt for willful refusal to repay attorney’s fees. We affirm.

Theodore Kranitz is the senior member of the law firm of Kranitz & Kranitz, P.C., in Buchanan County. Mr. Kranitz was the attorney for the personal representative of the estate of Ross E. Johnson, Sr., in the probate court of Nodaway County. Mr. Johnson, the proprietor of a funeral home business, died intestate in March 1997. One of his sons, Ross E. Johnson, Jr., was appointed personal representative in April 1997, when letters of administration were issued. There were four funeral homes that were owned by Ross Johnson, Sr., either solely or in joint ownership with his two sons. Theodore Kranitz was the attorney for the personal representative throughout the next six years until the personal representative was removed by court order on July 23, 2003.

In July 1998, about one year after the estate was opened, Kranitz and the personal representative filed an application for allowance of compensation. The personal representative and Kranitz requested partial fees in the amount of $20,000 each. They also requested fees for a certified public accountant in the amount of $18,460. In that application, signed by both the personal representative and Kranitz, the personal representative stated that he had “performed all services required by law in respect of the estate.”

Two months later, a document entitled “Agreement of Heirs” was filed with the probate court. In that document, the heirs (Ross Johnson, Jr., and his brother, Robert Johnson) agreed that the decedent’s business should continue to operate and that the earlier requested partial fees should be paid.

Despite the fact that no annual settlement had yet been approved, the court granted the requests for $20,000 partial compensation to both the personal representative and Kranitz. With regard to the “agreement” to continue the business, the court noted that whether or not the heirs agreed, the personal representative would need to seek a court order to continue the business.

As of two years later (November 2000), no approvable annual settlements had been filed in accordance with the requirements of section 473.540. Also, no order to continue the business had been applied for. The court issued an order to show cause why the personal representative should not be removed and why he and his attorney, Theodore Kranitz, should not be surcharged for fees previously allowed in the estate, for:

1. Failing to discharge official duties as personal representative of the estate by not filing and obtaining Court approval of annual settlements in 1998, 1999, and 2000, and by not taking the initiative to wind up the administration of the estate; and
2. Failing to apply for and obtain an order of the Court authorizing continuation of the business of the decedent, as required by Section 473.300 RSMo.

The court also appointed the Respondent, Zel M. Fischer, as administrator ad litem with regard to the order to show cause.

The court held a hearing on the show-cause order on January 4, 2001. At the conclusion of that hearing, the court took the matter under advisement after receiving assurances that the annual settlements soon would be filed and action would be taken to wind up the estate. From January 4, 2001, through July 23, 2003, while the court held the matter under advisement on the representation that settle-mente would be filed, neither the personal representative nor Mr. Kranitz filed a single pleading or settlement.

On July 23, 2003, which was six years after the estate had been opened, the court found after another hearing that none of the actions required by the show cause order, and agreed to by the parties, had been “fully or satisfactorily addressed.” The court entered judgment on the order to show cause. That judgment ordered: (1) that Ross E. Johnson, Jr., be removed as personal representative of the estate; (2) that he file his final settlement accounting on or before 9-1-03; and (3) that “for the gross failure to comply with [probate code] requirements ... concerning the administration of this decedent’s estate as set out above, the Court does surcharge Ross E. Johnson, Jr., and Theodore M. Kranitz, his attorney, for partial fees previously allowed ... of $20,000.00 each ... to be paid over to the administrator ad litem ... on or before 9-1-03.” That judgment also directed that the Missouri Supreme Court Rules of Civil Procedure would apply to all proceedings in the estate.

The personal representative and Kranitz jointly filed a motion to set aside the July 23 Judgment. After a hearing, the court denied the motion. Kranitz then requested leave to withdraw as attorney for Mr. Johnson, who already had been removed as the personal representative. The court granted the request. A week later, Kran-itz filed a motion to reconsider the motion to set aside. That motion was also denied.

Kranitz did not refund the $20,000 compensation. Kranitz took no action at that time to appeal the judgment ordering repayment. Kranitz applied to this court for a writ of prohibition against the judge in the probate case. The writ application was denied.

On October 17, while the writ application was pending, Respondent Fischer filed motions for an order to show cause and for contempt against both the personal representative and Kranitz for their refusal to comply with the July 23 Order. Separate orders to show cause were entered, directing the personal representative and Kran-itz to appear before the court on October 31 at 9:00 a.m. The court ordered Kranitz to appear and show cause why the court should not find and hold him personally in contempt for failure to obey the July 23 Order in the following respects:

1. Failing to insure that the personal representative file an accurate annual settlement for those years that you represented the personal representative prior to being allowed to withdraw....
2. Failing] to pay over to ... [the] administrator ad litem, $20,000 on or before September 1, 2003, which was previously allowed to you as partial attorneys fees.

At the October 31 hearing, Kranitz requested a continuance and the right to employ an attorney to represent him. Both were granted. In November, at a status hearing on the order to show cause, counsel for Kranitz entered his appearance. The hearing on the motion for contempt was scheduled for January 2004.

Although the estate had been opened in 1997, as of January 2004, no bank account had been established for estate funds and transactions. No excuse for this failure was offered. The reason given for the failure to file settlements was that the estate tax return was being audited. Mr. Kranitz conceded, however, that settlements were due even if the estate tax return was under audit.

On January 27, the parties appeared for the contempt hearing. Kranitz, who appeared with counsel, filed an application for change of judge prior to commencement of that hearing on the ground that the judge was biased. The court denied the application for change of judge and also took up and denied Kranitz’s earlier motions to stay and to quash. The hearing on the contempt motion proceeded. In addition to the evidence received at the hearing, which included Kranitz’s stipulation that he had the ability to repay the $20,000, the court took judicial notice of all previous pleadings, filings, and testimony in the case.

At the conclusion of the hearing, the court entered a judgment of contempt against Mr. Kranitz and ordered his commitment. The contempt judgment recited the history leading up to the July 23 Judgment. The court concluded that Mr. Kranitz “has willfully failed and refused to comply” with the court’s order that he repay the $20,000, despite having the present financial ability to do so. The Judgment decreed that Mr. Kranitz was “guilty of contempt of this Court because of said refusal to comply” and ordered his commitment “until such time as he has purged himself of this contempt by repaying partial fees ... of$20,000.00[J”

The Order of Commitment referred to the contempt judgment against Kranitz for his failure to repay the partial fees despite his stipulation and the court’s finding that he had the financial ability to do so. The court ordered that Mr. Kranitz be committed and remain in custody until he complies with the July 23 order to repay the fees.

The next day, Mr. Kranitz filed his notice of appeal and posted a $20,000 appeal bond. This appeal follows.

Kranitz brings six points on appeal. Three of them directly relate to the contempt proceeding that is the subject of this appeal. The other three deal with the propriety of the original July 23 Judgment.

Two of Kranitz’s points relate to the propriety of the contempt judgment and order of commitment. His first point is that the court lacked jurisdiction to hold him in contempt because, as the attorney for the personal representative, he was not a party to the action. He also contends that he was not guilty of any affirmative conduct that would place him under the jurisdiction of the court. Kranitz contends, in a related point, that the court erred as a matter of law in finding him in contempt and ordering his commitment because neither the judgment of contempt nor the order of commitment stated the specific facts upon which they were based.

The distinction between criminal and civil contempt is reflected in the content of the judgment. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). The purpose of the contempt may be coercive or punitive. Id. Civil contempt arises from disobedience to an order or decree issued for the benefit of a party to litigation. Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976). Its purpose is to compel compliance with such an order. Chassaing, 887 S.W.2d at 578. Commitment may be ordered, but only for acts the contemnor is capable of performing. State ex rel. Nesser v. Pennoyer, 887 S.W.2d 394, 396 (Mo. banc 1994); Zeitinger v. Mitchell, 244 S.W.2d 91, 98 (Mo.1951). A party guilty of civil contempt has, at all times, the power to terminate punishment by complying with the court’s order. Chassaing, 887 S.W.2d at 578. Criminal contempt, on the other hand, is punitive in nature and acts to protect, preserve, and vindicate the authority and dignity of the judicial system and to deter future defiance. Id.

The judgment of contempt in this case addresses Mr. Kranitz’s refusal to comply with the court’s order that he repay the partial compensation to the administrator ad litem for the benefit of the estate. The order of commitment is intended to coerce Kranitz to comply. Kranitz has the power and ability to terminate his punishment by complying with the court’s order. The nature of the infraction, the judgment itself, and the order of commitment show that this is civil contempt.

A conviction for civil contempt is renewable on appeal. Pennoyer, 887 S.W.2d at 396. We will affirm such a judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. State ex rel. Ryan v. Ryan, 124 S.W.3d 512, 513 (Mo.App.2004). On appeal from a contempt judgment, the appellant has the burden of demonstrating trial court error. McLerran v. McLerran, 562 S.W.2d 710, 714 (Mo.App.1978). We review questions of law de novo. Williams v. Kimes, 996 S.W.2d 43, 44-45 (Mo. banc 1999).

We first address Kranitz’s contention that the court lacked jurisdiction to hold him in contempt because he was not a “party” to the underlying probate case and was not guilty of any conduct placing him under the jurisdiction of the court.

Kranitz states that “undoubtedly, the court has the power to punish a party by contempt,” but concludes that because he, as the personal representative’s attorney, was never a party in the probate case, the court erred in holding him in contempt. Kranitz says no provision of the probate code makes an attorney for the personal representative a party to the action.

The probate code gives the probate court jurisdiction over all matters pertaining to probate business. See § 472.020. Section 473.607.1 authorizes the court to order the personal representative’s legal representative to file a final settlement. That section also authorizes the court to “attach and commit for contempt” the legal representative if he fails to do so within the time ordered by the court. Section 473.153 also provides jurisdiction over attorneys in probate cases to the extent that it authorizes the probate court to award compensation to attorneys for their services, as well as the authority to deny such compensation. The probate court has the power to deny any payment whatsoever to an attorney “[i]f the court finds that any attorney’s services or actions in connection therewith are wrong, improper or injurious to the estate.” § 473.153.6.

Pursuant to section 472.030, “[t]he probate division of the circuit court has the same legal and equitable powers to effectuate and to enforce its orders, judgments and decrees in probate matters as circuit judges have in other matters.... ” The power to punish for contempt inheres in all courts of record in this state. Osborne v. Purdome, 244 S.W.2d 1005, 1012 (Mo. banc 1951); see also § 476.110. A court has inherent power to punish contemptuous acts and to preserve and vindicate the law’s power and dignity. State ex rel. Picerno v. Mauer, 920 S.W.2d 904, 910 (Mo.App.1996). Disobedience of a valid judgment or order, which the court has jurisdiction to enter, interferes with the administration of justice and constitutes contempt. Id. The court has the discretion to punish a contempt by fine or by imprisonment in the county jail, or both. § 476.120.

The probate court had the authority to charge Mr. Kranitz with contempt for his willful refusal to comply with the court’s July 23 Order directed to him personally. This is true despite the fact that he was serving only as the attorney for the personal representative in that case. See, e.g., Osborne, 244 S.W.2d 1005 (attorneys for civil litigants convicted of criminal contempt); Picerno, 920 S.W.2d 904 (attorney representing criminal defendant convicted of criminal contempt); State ex rel. Tannenbaum v. Clark, 838 S.W.2d 26 (Mo.App.1992) (defense attorney charged with criminal contempt). It is well established that attorneys are subject to the contempt power of the court. See, e.g., 17 Am.JuR.2d Contempt § 63 (2004). Kranitz presents no authority for his position that he cannot be held in contempt. His argument is contrary to existing authority. See Picerno, 920 S.W.2d at 913 (“As officers of the court, lawyers have a duty to obey judicial orders and uphold legal process.”); see also generally Osborne, 244 S.W.2d at 1015-17 (Conkling, J., dissenting).

Kranitz also briefly argues under this point that the court erred in its judgment of contempt because, he says, “no contempt order may be based on mere non-payment of a money judgment,” citing White v. Hutton, 240 S.W.2d 193, 200 (Mo.App.1951). White was a habeas petition arising out of a probate court discovery of assets proceeding in which the petitioner had been incarcerated even though there was no finding that the petitioner had possession or control of the funds in question. Here, there is no lack of proper findings, as we detail elsewhere in this opinion. Also, of course, it is clear that Kranitz had control of the funds in question, at least initially if not currently, and it is agreed that he has the ability to refund them currently.

Although Kranitz does not specifically discuss the constitution, his assertion comes close to invoking the provision of our state constitution: “That no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law.” Mo. Const, art. I, § 11. Contrary to what Kranitz implies, however, there are circumstances in which imprisonment for refusal to pay a sum of money does not violate the constitution. For instance, the use of the contempt power to imprison a party for his refusal to comply with a court’s order to pay maintenance to his former wife has been found not to violate the constitution. State ex rel. Stanhope v. Pratt 533 S.W.2d 567, 573-75 (Mo. banc 1976); See also Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976) (non-payment of maintenance and child support); Minor v. Minor, 901 S.W.2d 163 (Mo.App.1995) (non-payment of spouse’s attorney’s fees in a dissolution case); and Yeager v. Yeager, 622 S.W.2d 339 (Mo.App.1981) (failure to make mortgage payments in dissolution case).

In this case, as in the cases mentioned above, the contempt is not about mere non-payment of a debt created initially outside of the supervision of the court. It is about the exercise of the court’s inherent powers over the matters under its jurisdiction. Here, it is about counsel, having been allowed fees in advance from the assets of an estate, refusing to refund those fees to the estate, even though counsel has the ability to refund the fees. The court approved the payment of the fees in the first place; in administering the estate, the court, we believe, is not precluded by the constitution from the use of its contempt powers to recover the fees for the estate. See Zeitinger, 244 S.W.2d at 97; Watkins v. Rives, 125 F.2d 33, 41 (C.A.D.C.1941) (quoted in Zeitinger, Id.). Point I is denied.

We next take up Kranitz’s argument that the court erred as a matter of law because neither the contempt judgment nor the commitment order stated the specific facts upon which they were based, as required by statute.

In a civil contempt case, both the contempt judgment and the order of commitment must set forth the facts and circumstances that constitute the contempt. In re Estate of Zimmerman, 820 S.W.2d 617, 620 (Mo.App.1991); see also § 476.140 (“Whenever any person shall be committed for any contempt, ... the particular circumstances of his offense shall be set forth in the order or warrant of commitment.”). This requirement is jurisdictional in contempt cases. Zimmerman, 820 S.W.2d at 620. The alleged contemnor in a proceeding for civil contempt also must be provided certain procedural safeguards, including service of notice of the specific acts of contempt charged. Jacoby v. Jacoby, 675 S.W.2d 117, 120 (Mo.App. 1984). The notice must include (1) time and place of hearing, (2) essential facts constituting the contempt charge, and (3) description of the charge as contempt. City of Pagedale v. Taylor, 831 S.W.2d 723, 724 (Mo.App.1992). For a judgment and commitment for civil contempt to be valid, (1) the warrant and commitment order must state what acts the contemnor can take to purge himself, (2) the contem-nor must have the ability to purge himself, and (3) the court must make findings to that effect. See Pennoyer, 887 S.W.2d at 396-97; Mischeaux v. Hais, 939 S.W.2d 49, 50 (Mo.App.1997).

The October 17 show-cause order directed toward Kranitz ordered him to appear at the court on October 31 and show cause why the court should not hold him personally in contempt for failure to obey the court’s July 23 Order in the following respects:

1. Failing to insure that the personal representative file an accurate annual settlement for those years that you represented the personal representative prior to being allowed to withdraw....
2. Fail[ing] to pay over to ... [the] administrator ad litem, $20,000 on or before September 1, 2003, which was previously allowed to you as partial attorneys fees.

The Judgment of Contempt recited the history leading up to the July 23 Order; noted that Kranitz had notice of that judgment and had been served with the later order to show cause and motion for contempt; and concluded that Kranitz,

with full and complete knowledge of said [July 23] Judgment, has willfully failed and refused to comply with its terms by not repaying partial fees allowed of $20,000.00 to [the] administrator ad li-tem ... on or before 9-1-03, the Court further finding as stipulated on the record, that Mr. Kranitz has the present financial ability to comply therewith.

The judgment decreed that Kranitz “is guilty of contempt of this Court because of said refusal to comply” and ordered that he be committed “until such time as he has purged himself of this contempt by repaying partial fees allowed of $20,000.00[.]”

The Order of Commitment referred to the judgment of contempt against Kranitz for his willful failure to repay the partial fees. The court ordered that Kranitz be committed and remain in custody until he complies with the July 23 judgment to repay the fees.

The judgment of contempt and commitment order specifically stated that Kran-itz’s offense constituting contempt was his refusal to comply with the court’s order that he repay the $20,000 fee. Both informed Kranitz that in order to purge the contempt, he need only comply with the court’s order to repay the $20,000 in partial compensation. Kranitz stipulated in court that he had the financial ability to do so, and the court made findings to that effect in both the judgment of contempt and order of commitment. The pleadings and the procedures were legally adequate.

Point VI is denied.

Kranitz argues in his Point II that the court acted in excess of its jurisdiction in denying his motion for change of judge and his motion to stay proceedings. He claims the motions were timely and statutorily sufficient. He argues that the court misapplied the time requirements by applying the thirty-day requirement in the Rules of Civil Procedure and not section 472.060, which only requires a motion “pri- or to commencement of proceedings.”

The application for change of judge stated as follows:

Pursuant to authority of VAMS § 472.060, and further pursuant to authority established in re Estate of Frein, ED 1998, 967 S.W.2d 258, 261[5], [6,7], Theodore M Kranitz, by his attorney, D Bryant King III, states and applies for change of judge:
The judge of probate now sitting in this case is biased and prejudiced against applicant, an interested party, now objecting in writing to his sitting. The judge sitting in this cause cannot be a fair an impartial magistrate in this case, and counsel for the estate has an undue influence upon the mind of the judge.
WHEREFORE, applicant moves the judge of this Court to recuse himself and to stand disqualified, and transfer this cause to another judge who shall hear and determine the same.
Under the amended provisions of the probate code dealing with disqualification of judges, if the pleading is in proper form and not waived by delay, disqualification is automatic in the sense that it is without hearing evidence and without the court having discretion in ruling on such request. State ex rel. Stephens v. Lamb, SD 1994, 883 S.W.2d 101. Alleging bias and prejudice in the language of the statute or rule, is sufficient to support a petition for disqualification. State ex rel. York v. Kays, SD 1996, 916 S.W.2d 859.

The application was supported by an affidavit asserting that the matters alleged in the application were “true and correct.”

Respondent Fischer argues that the application for change of judge in this ease was untimely because the application was governed by Rule 51.05. Kranitz purported to bring his application under section 472.060, the provision of the probate code that permits application for a change of judge. Kranitz contends that if the court applied Rule 51.05, it was error to do so. Had the court applied section 472.060, Kranitz says, the application should have been granted and the proceeding transferred to another judge.

Kranitz points out that section 472.141.1 provides:

[a]n adversary probate proceeding shall be governed by the civil code of Missouri and the rules of civil procedure; except that ... [wjhere the probate code or any other statute contains a provision prescribing practice, procedure or pleading, applicable to the pending proceeding, the provisions of the probate code or such statutes shall govern[.]

Here, even though the contempt was an adversary proceeding and the rules of civil procedure were generally applicable, it is not clear that Rule 51.05 would preempt section 472.060. Section 472.060 permits an automatic change of judge if the application includes a written objection, verified by affidavit, that the court is biased or prejudiced against one of the parties. See State ex rel. York v. Kays, 916 S.W.2d 859, 861 (Mo.App.1996). Possibly, then, because section 472.060 is a provision prescribing a specific procedure for change of judge, Rule 51.05 does not preempt it. With that possibility in mind, we will first consider the change of judge in light of section 472.060. Although the statute provides no time requirements, the courts have interpreted section 472.060 to require that such an application be brought prior to the commencement of the proceedings. Quoting State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 842 (Mo. banc 1987), the court in In re Estate of Frein, 967 S.W.2d 258, 261 (Mo.App.1998) explained:

Section 472.060, unlike Rule 51.05, does not explicitly provide a time limitation for the filing of a motion to disqualify. However, we agree with the general proposition ... that a party may in effect waive his right to disqualify under Section 472.060 through delay in filing the motion. Accordingly, we hold that a party who unduly delays the filing of a motion to disqualify under Section 472.060 waives his right to automatic disqualification under that statute[.]

The motion is not untimely filed unless it is clear from the record that the “trial” or hearing of the matter has commenced or the cause taken under submission by the court. Frein, 967 S.W.2d at 261. The Supreme Court recognized, in Nassau, that a deadline must exist to prevent an unnecessary burden upon judicial administration caused by unreasonable delay. Id.

Kranitz relies upon Frein to support his argument that his application, submitted the day of the actual contempt hearing, was timely. In Frein, the appellant’s two motions to disqualify the judge were made prior to or on the day of the contempt hearing. The court held that the appellant’s motion to disqualify the trial judge was timely filed. Id. at 261. Frein is distinguishable from this case, however, in that there the hearing on the motion to compel was the first hearing that had actually come before the probate court with regard to that estate. See id. at 259-60.

In this case, there were hearings both before and after the July 23 Judgment ordering Kranitz to repay the $20,000 partial compensation. Kranitz failed to make application for change of judge prior to any of those hearings. A show cause order on the motion for contempt was entered. The court directed the personal representative and Kranitz to appear. At the hearing, Kranitz requested a continuance and the right to employ an attorney to represent him. In November, at a status hearing on the order to show cause, counsel for Kranitz entered his appearance. On December 8, another status hearing was held at which the topic was the personal representative’s need for new counsel. (Evidently neither Kranitz nor his attorney appeared at that hearing, however.) At none of these hearings— either with regard to the court’s order directing him to repay the funds or at any of the subsequent hearings on the contempt motion itself — did Kranitz apply for a change of judge. Finally, prior to commencement of the January 27, 2004, hearing, Kranitz appeared with counsel and filed an application for change of judge at that time, which the court denied as untimely.

The court did not err. Regardless of which rule was applicable, 51.05 or that embodied in section 472.060, the motion was not timely. Changes of judge will not be permitted to be used in an untimely fashion merely as a delay tactic.

Of course, if there was an appearance of bias, the judge should have recused himself, without regard to the issue of timeliness. See Grissom v. Grissom, 886 S.W.2d 47, 55-56 (Mo.App.1994). See Rule 2.03, Canon 3.E(1). “If, on the record, a reasonable person would find an appearance of impropriety, the canon compels recusal.” Grissom, 886 S.W.2d at 56.

Mr. Kranitz has failed to specify any actions the judge has taken that would cause a reasonable person to doubt the impartiality of the judge. Our examination of the entire record yields no reason to believe that any reasonable person would conclude the judge was biased. The record reflects exemplary professionalism by the trial court throughout the proceedings in this case.

Kranitz also argues that the court erred in denying his motion to stay proceedings. He suggests that the court denied the motion because the court deemed it untimely. However, we fail to see that the court denied the motion as untimely. The court apparently denied it on the merits, within the court’s discretion. To the extent that his argument about the motion to stay relates to the appealability of the original July 23 Order, pursuant to sections 472.160 and 472.150, we address that matter below. Kranitz fails to show error or prejudice. To the extent that he argues the issue of timeliness, Point II is denied.

Mr. Kranitz asserts that the July 23 Judgment was erroneous in that the court had neither jurisdiction nor authority to order him, personally, to repay the compensation. He says this is so because the check was made out to and deposited into the bank account of his law firm, Kranitz & Kranitz, P.C.; and that the court erred in failing to apportion his share of the $20,000 judgment in accordance with his proportional investment in the law firm, pursuant to section 356.171.3 (the statute governing liability for negligent or wrongful acts or omissions with regard to professional corporations).

The first time Kranitz articulated this issue before the trial court was at the actual contempt hearing itself, long after the court had entered the judgment directing Kranitz to personally make repayment. Also, Kranitz did not raise the matter at any of the preliminary hearings on the contempt motion.

Respondent Fischer contends that the July 23 Judgment was a final, appealable order and that Kranitz’s arguments with regard to the propriety of that judgment are now barred because Kranitz failed to timely appeal that judgment.

Generally, orders of the probate court are interlocutory and not subject to appeal until final disposition. Estate of Couch, 920 S.W.2d 165, 168 (Mo. App.1996); § 472.150. However, if an order falls within the enumerated circumstances set forth in section 472.160.1, it is deemed final for purposes of appeal, and any interested aggrieved person may appeal. In re Estate of Burg, 68 S.W.3d 543, 545 (Mo.App.2001). That statute creates an expedited right to appeal certain orders which otherwise would be interlocutory and unappealable. In re Estate of Forhan, 149 S.W.3d 537, 541 (Mo.App.2004). “Such expedited appeals serve the salutary purpose of allowing ‘many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during the administration of the estate.’ ” Id. at 541-42. To be appealable under section 472.160, an order must fully dispose of all issues and rights of all parties relating to a specific probate proceeding. Burg, 68 S.W.3d at 545. Section 472.160 gave Kranitz the right to appeal the July 23 Order as a final order.

Kranitz claims that the judgment was interlocutory in nature and subject to review by the probate court until final settlement, pursuant to sections 472.150 and 472.160. Kranitz relies on Estate of Couch, in which the court held that even though no appeal was taken from an earlier order allowing fees to the decedent’s former guardian and conservator, that order was not a final order, and thus did not operate as res judicata to bar later objections. 920 S.W.2d at 166-68. See also In re Estate of Ritter, 510 S.W.2d 188, 189 (Mo.App.1974). In Ritter, the court held that an order for partial compensation for attorneys’ fees generally is not an appeal-able order under section 472.160 because, pursuant to section 473.153(6), further compensation may be forthcoming at a later time.

In this case, as of July 2003, Kranitz was not in a position to receive any more compensation from the estate. His rights and those of the parties had been fully adjudicated. No new facts bearing on the repayment would develop. The judgment ordering him to repay fees was thus arguably final and not interlocutory. If it were otherwise, the final accounting of the estate could be unduly complicated by the fact that the contempt would have to remain unenforced until after the final settlement was filed. Then, after the final accounting and the collection of the reimbursed fees, there might have to be a further “final” settlement. Also, the refund of fees could affect the federal estate tax return and other factors. It is not in the interest of the estate to keep deferring issues related to the refund of the partial fees.

This case is arguably analogous to Estate of Burg, 68 S.W.3d 543, in which an order for attorney’s fees was held to be a final, appealable judgment at the time it was entered because the attorney no longer represented the estate. In Burg, the circuit court entered judgment for attorney’s fees to the former attorney for the estate. Id. at 544. The personal representative filed her notice of appeal nearly three months after entry of the challenged order. Id. The appellate court dismissed the appeal as untimely because the ten-day limitations period began to run on the date the order for attorney’s fees was entered in the probate court. Thus, as to the attorney’s claim, the order was final and appealable. Id. at 545.

The court held that because the ruling on the motion for attorney’s fees fully and finally disposed of the matter between the parties, the order fell within section 472.160.1 and was appealable. Id. The court distinguished Ritter, 510 S.W.2d 188, on the basis that Burg involved final, not partial, compensation because the attorney had been discharged. Id.

Here, this case, like Burg, involved final, not partial, compensation. Thus, arguably the ruling on the motion for attorney’s fees fully and finally adjudicated the matter between the parties. The only thing remaining was the enforcement of the judgment. Thus, Mr. Fischer may be correct that Kranitz’ arguments in this regard are barred by res judicata.

In any event, this issue of whether they are barred is the proverbial “red herring” because the arguments lack merit. The legal file shows that Theodore Kranitz was the attorney for the personal representative. Although the check for partial compensation may have been issued to Kranitz <& Kranitz, P.C., Theodore Kranitz individually, as the attorney for the personal representative, had the right to request that the court direct reissuance of the check in his sole name. Thus, Kranitz had the right to control the funds.

We do not deny that his firm likely could have claimed an interest in the fee by virtue of his relationship with his firm, regardless of how the check was issued. However, the fee was issued for work that Kranitz personally (as well as, presumably, his firm) was responsible to perform or to cause to be performed. Whether or not the firm, could also be held responsible for the fee is beside the point. Kranitz must overcome the proposition that the court could hold him accountable personally, as the attorney for the personal representative, for the proceeds of the compensation, regardless of how the proceeds were spent. This he fails to do.

Mr. Kranitz also argues that the court erred by failing to apply section 356.171.3. That statute governs liability for negligent professional acts performed by one or more members of a professional corporation. The statute allows apportionment of such liability in accordance with the proportional investment in the professional corporation. The statute is not applicable here because this argument was not made in the trial court and has thus been waived. Moreover, Kranitz fails to describe what the partners’ proportional investments are and thus how such apportionment would have affected the judgment in this case. Accordingly, even if we thought the statute should be considered under the doctrine of plain error (Rule 84.13), we would not have the information about the respective proportionate interests needed in order to be able to grant relief. Point denied.

Kranitz also argues that the court erred in basing its July 23 Judgment on section 473.153.6 (the statute providing for denial of attorneys’ fees) and in making a determination as to whether the fees were earned. He states that there was no specific finding or request for a finding that Kranitz’s conduct had been wrong, improper, or injurious to the estate.

Section 473.153.6 provides: “If the court finds that any attorney’s services or actions in connection therewith are wrong, improper or injurious to the estate, no attorney fee whatever shall be allowed.” (Emphasis added.) The court has a duty to determine the reasonableness of a requested attorney’s fee. Estate of Blaicher, 23 S.W.3d 811, 813 (Mo.App.2000). This is also a matter as to which the court possesses expert knowledge. Id. In its July 23 Judgment, the court specifically found that none of the issues raised in the show cause order, and agreed to by the parties, had been “fiilly or satisfactorily addressed.” The judgment ordered Ross Johnson and Theodore Kranitz to repay the partial fees previously allowed due to the “gross failure to comply with the requirements of the [probate code] ... concerning the administration of this decedent’s estate[.]” The record of the hearing shows that although the estate had been pending for six years, no annual settlement had been approved; no accurate inventory had been filed; no Missouri estate tax return had ever been filed; no order had been signed to authorize the continuation of the decedent’s unprofitable business; and no order to take charge of the real estate had ever been issued. Making things even more difficult, no inventoried bank account for estate transactions had been opened. Monies from estate business transactions and from the sale of assets had not been segregated in a separate estate account. Also, personal property in the estate had been distributed without court order. All of this was allowed to take place under Kranitz’s nose in disregard of Kranitz’s duty to “represent, advise and assist” the personal representative “in the proper discharge” of his duties. See In re Alexander’s Estate, 360 S.W.2d 92, 107 (Mo.1962).

Perhaps there were mitigating factors known to Kranitz but not presented to the court. The court, however, was entitled and required to operate on the information it had, which could lead only to the conclusion that the actions and omissions of Kranitz, as attorney for the estate, were “wrong, improper, and injurious to the estate.” Although the court did not use those exact words in reaching the conclusion it did, there remains no doubt that the court believed Kranitz’ actions were “wrong, improper, and injurious to the estate.” Kranitz presents no authority for the notion that we must remand this matter for the court to compel the unnecessary and useless act of having the court utilize the precise statutory terminology in denying his claim to a fee. There is no doubt as to the court’s justified conclusions in this regard. We will not engage in a futile act. Moreover, we once again remind Kranitz that he failed to appeal the July 23 order or make any timely objection in regard to this contention. He raises it in his brief simply to delay the inevitable.

Kranitz also complains that section 473.153 is entirely prospective in nature, meaning that it cannot, in his opinion, be used as the basis of a surcharge to recover fees already allowed in advance. He bases this on the fact that the section talks about whether a fee “shall” be allowed. Such a hypertechnical suggestion is not in keeping with the proper construction of statutes, which is “to effectuate the true meaning and intent thereof.” Section 1.010 RSMo 2000. It also overlooks the fact that the original allowance was simply an advance that was contingent upon work to be performed in the future. Thus it remained to be determined what fee, if any, would ultimately be allowed. The court’s determination was entirely consistent with the statutory terms.

Conclusion

For the foregoing reasons, we find no error in the court’s enforcement of this contempt order. The points on appeal are denied. The judgment is affirmed.

ULRICH and ELLIS, JJ., concur.

      . That compensation was never contested.

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

      . Respondent Fischer points out that the funds were to be paid to him as administrator ad litem rather than to an estate account because no bank account had ever been opened for the estate.

      . On December 8, another status hearing was held to address Ross Johnson's need for new counsel, but neither Appellant nor his counsel evidently was present.

      . Appellant briefly argues that the court had no authority to order that the $20,000 be paid to Zel Fischer, as administrator ad litem, but he offers no authority for this position. Respondent Fischer points out that the reason for the order was that no bank account had ever been opened for the estate.

      . Section 473.607.1 provides in its entirety:
      On the application of any successor or surviving personal representative or of any interested person[,] the court may order any personal representative or his legal representatives or any other person to file any final settlement required by this law or by the order of the court, and may attach and commit for contempt any person who fails to file the settlement within the time fixed by the court until he complies with the order of the court. (Emphasis added.)

      . Section 472.060 provides in relevant part:
      No judge of probate shall sit in a case in which he ... is biased or prejudiced against any interested party ..., when any party in interest objects in writing, verified by affidavit; and when the objections are made, the cause shall be transferred to another judge, in accordance with the rules of civil procedure relating to change of judge, who shall hear and determine same[.]

      . The respondent in Frein filed a motion for contempt against the appellant for failure to complete distribution of the estate’s property.

        The trial court accepted the motion, but renamed it a "Motion to Compel Distribution.” Frein, 967 S.W.2d at 259. The trial court set a hearing date on the motion to compel distribution. Id. The court stated that "[t]he record does not indicate any hearing in this matter prior to [the date of that hearing].” Id. at 259-60.

      . In his motion to set aside, filed August 14, 2003, Kranitz refers to the fact that he is a member of the law firm of Kranitz & Kranitz, P.C., and states that it is the law firm which represents the personal representative (emphasis in original). He does not develop this assertion any further. In the subsequent motion to reconsider, filed on August 27, 2003, Kranitz makes no further reference to any such assertion. His statement of opinion that the firm represents the personal representative is inadequate to preserve an argument that the court could not hold Kranitz personally responsible.

      . Section 472.150 states:
      For good cause, before the expiration of the period allowed for appeal after the order of final distribution of the administration of the estate ..., the court may vacate or modify its orders, judgments and decrees, or grant a rehearing therein, except that no such power shall exist as to any orders, judgments or decrees from which an appeal has been taken, prior to a final disposition thereof on such appeal, or to set aside the probate of a will after the time allowed for contest thereof.

      .Section 472.160 provides, in relevant part:
      1. Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:

      (10) On orders making allowances for the expenses of administration;

      (13) On all orders denying any of the foregoing requested actions;

      (14) In all other cases where there is a final order or judgment of the probate ... court under this code except orders admitting to or rejecting wills from probate.

      . No canceled check was presented to the trial court. Kranitz furnished this court a copy of a check. The check had been drawn by Ross Johnson, Jr. on an account that purported to be an estate account, but was never inventoried in the estate.


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence J. GLOWCZEWSKI, Defendant-Appellant.
    No. 26331.
    Missouri Court of Appeals, Southern District, Division Two.
    July 29, 2005.

      Ellen H. Flottman, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Clarence Glowczewski (“Defendant”) was charged by information with committing the class C felony of possessing methamphetamine, a controlled substance, in violation of § 195.202. After a jury trial, Defendant was found guilty of possessing methamphetamine. In accordance with the jury’s recommendation, the trial court sentenced Defendant to serve six months in the county jail. Execution of the sentence was suspended, and Defendant was placed on three years of supervised probation. This appeal followed.

In Defendant’s sole point relied on, he contends the trial court erred in denying his motions for judgment of acquittal because the State did not present sufficient evidence to prove beyond a reasonable doubt that Defendant possessed methamphetamine. We affirm.

I. Standard of Review

The scope of our review is limited to assessing whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). The mechanics of this review process were explained in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993):

In considering whether the evidence is sufficient to support the jury’s verdict, we must look to the elements of the crime and consider each in turn. Under the Dulany standard, we are required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt.

Id. at 411. Evidentiary conflicts, the determination of witnesses’ credibility and the weight to be given their testimony are within the peculiar province of the jury. State v. Zimmerman, 886 S.W.2d 684, 691 (Mo.App.1994). It is not the function of an appellate court to substitute its judgment for that of the jury or to weigh the evidence presented. Id.; State v. Reed, 816 S.W.2d 919, 921 (Mo.App.1991).

In Defendant’s point relied on, he argues that the court erred in denying both of Defendant’s motions for judgment of acquittal. Defendant filed the first motion at the close of the State’s evidence and the second motion at the close of all the evidence. Since Defendant presented evidence in his own behalf after the State rested, however, he waived any claim of error relating to the denial of his motion for judgment of acquittal filed at the close of the State’s evidence. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Thus, our task is to determine whether the trial judge should have sustained Defendant’s motion for judgment of acquittal that was filed at the close of all of the evidence. Id. The sufficiency of the evidence to support the verdict will be determined based on all of the evidence presented, including those portions of Defendant’s evidence that favor the State. See State v. Marvel, 756 S.W.2d 207, 209 (Mo.App.1988); State v. Campbell, 655 S.W.2d 96, 97 (Mo.App.1983); State v. Wood, 553 S.W.2d 333, 334 (Mo. App.1977).

II. Summary of the Evidence

Defendant owned an acre of land in Dent County, Missouri. A one-bedroom trailer house, in which Defendant lived alone, was located on the property. Defendant’s mother lived in another trailer house located approximately 100 to 200 feet from Defendant’s trailer. On June 17, 2003, the Dent County Sheriffs Department obtained a warrant to search Defendant’s property to determine if methamphetamine was being manufactured there.

Six police officers executed the warrant shortly before 1:00 a.m. on June 18, 2003. Dent County Deputy Rodney Jackson (“Deputy Jackson”) was assigned to cover the rear of Defendant’s trailer when the warrant was executed. As Deputy Jackson exited his patrol vehicle, he shined his flashlight along the back of the trailer. Just as the light cleared the east end of the trailer, Deputy Jackson spotted Defendant, who appeared to be fleeing from the scene. Defendant stopped moving away from the trailer and raised his hands as soon as he was struck by the beam from Deputy Jackson’s flashlight. Defendant had his back to the trailer and was approximately 50 feet past its east end. Even though Defendant was carrying a flashlight and “it was pitch black out there,” the flashlight was turned off. Deputy Jackson did not find any methamphetamine on Defendant’s person.

Dent County Deputy Richard Piatt (“Deputy Piatt”) was assigned to cover the front of Defendant’s trailer while the warrant was being executed. As he got out of his vehicle, he observed a suspect run from the trailer towards a nearby creek. Deputy Piatt apprehended the suspect, who was later identified as Ricky Martin (“Ricky”). As Deputy Piatt brought Ricky back to the trailer, the officer found a pair of eyeglasses about 25 feet from the east end of Defendant’s trailer. The glasses were laying on a well-used trail leading from Defendant’s trailer to his mother’s trailer. Deputy Piatt later heard Defendant say that the eyeglasses belonged to him.

Deputies Piatt and Jackson returned to the trailer with Defendant and Ricky. When Defendant was asked who owned the trailer, he said his mother owned it. Deputy Piatt stayed with Defendant and Ricky while Deputy Jackson knocked on the front door of Defendant’s trailer. No one responded, so Deputy Jackson went inside. The trailer appeared dark from the outside, but the trailer’s interior was illuminated by a light. No one else was found in the residence. Once inside, Deputy Jackson could smell the “obnoxious” odor of camp fuel and iodine commonly encountered at meth labs. Deputy Jackson found tubing, red phosphorus, lye, mu-riatic acid, a camp fuel can, a coffee filter with white residue on it, and various jars and bottles. All of the aforementioned items, which are commonly used to manufacture methamphetamine, were located in plain sight on or around a coffee table beside the bed. On the bed, Deputy Jackson found an electric shaver case containing two used syringes, two new syringes, a deodorant can and a powder can. Later lab tests showed that coffee filter, jars and bottles all tested positive for methamphetamine.

After observing the items in the trailer, Deputy Jackson placed Defendant and Ricky under arrest and read them their Miranda rights. Defendant waived his right to counsel and agreed to be questioned. The following events then transpired:

Q. What did you ask [Defendant]?
A. I asked him to come with me, and I took him into the trailer house with me, and then once we were in the trailer house I asked him to be honest with me and tell me where the finished product for the meth lab was at.
Q. Okay. When you say finished product are you talking about methamphetamine powder?
A. Yes, sir, that’s correct.
Q. What was his response?
A. He whispered in a real low voice, said it was in Ricky Martin’s shirt pocket.
Q. Okay. Did you search Ricky Martin?
A. Yes, sir. I went — [Defendant] and I exited the trailer, went to Ricky Martin, and when I — like I said, I already placed both of them under arrest for manufacturing methamphetamine, read them their Miranda rights, went in the trailer, came out and searched Ricky Martin’s shirt pocket and there was a pack of cigarettes in his shirt pocket, and between the paper of the cigarette pack and the cellophane of the cigarette pack was a folded up coffee filter and inside that coffee filter was a white residue that field tested positive for methamphetamine.

The white powder in Ricky’s shirt pocket was later tested and confirmed to be methamphetamine.

Officers also searched a car that was parked in front of Defendant’s trader. The vehicle belonged to Defendant’s girlfriend, Teresa Martin (“Teresa”), who is Ricky’s sister. A box on the front seat contained an orange case and a leather pouch. Inside the orange case, officers found a bent spoon with methamphetamine residue on it. Inside the leather pouch, officers found five lcc syringes. One of the syringes contained a cloudy liquid that later tested positive for methamphetamine.

At trial, Defendant admitted that he owned the trailer where the meth lab was found and that he kept clothing and other personal belongings inside the trailer. He also admitted that he had been inside the trailer as recently as 5:00 p.m. on June 17, 2003, although he denied there was a meth lab in the trailer at that time. Defendant claimed Ricky set up and began operating the lab later that day.

III. Discussion and Decision

Section 195.202.1 makes it unlawful “for any person to possess or have under his control a controlled substance.” Methamphetamine is a Schedule II controlled substance. See § 195.017.4(3)(b) RSMo Cum.Supp. (2004); State v. Lingle, 140 S.W.3d 178, 186 n. 8 (Mo.App.2004). The only issue presented by Defendant’s appeal is whether the evidence was sufficient for the jury to find beyond a reasonable doubt that Defendant was guilty of possessing methamphetamine. To sustain a conviction for possession of a controlled substance, the State must prove two elements: “(1) conscious and intentional possession of the substance, either actual or constructive, and (2) awareness of the presence and nature of the substance.” State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). The elements of possession and knowledge both may be proved by circumstantial evidence. Id.

A person has actual possession of a controlled substance “if he has the substance on his person or within easy reach and convenient control.” § 195.010(34) RSMo Cum.Supp. (2004); State v. Bacon, 156 S.W.3d 372, 377 (Mo.App.2005). In the case at bar, no methamphetamine was found on Defendant’s person or within his easy reach and convenient control when he was arrested, so he was not in actual possession of a controlled substance. Therefore, the outcome of this appeal turns on whether there was sufficient evidence to prove Defendant constructively possessed methamphetamine. Bacon, 156 S.W.3d at 377. Defendant argues that the State failed to present sufficient evidence that Defendant constructively possessed the methamphetamine found in the trailer or in the car.

Taking Defendant’s arguments in the order presented, we first address whether the State’s evidence was sufficient to make a submissible case of constructive possession as to the methamphetamine found in the trailer. Constructive possession exists when a person has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. § 195.010(34) RSMo Cum.Supp. (2004); State v. Booth, 11 S.W.3d 887, 891 (Mo.App.2000). “Exclusive possession of the premises raises an inference of knowledge and control. However, in a case of joint possession of the premises, more is required.” State v. Hendrix, 81 S.W.3d 79, 83 (Mo.App.2002). Here, Ricky’s evident involvement in manufacturing the methamphetamine that was recovered from his shirt pocket, which was the “finished product” of the meth lab operating inside Defendant’s trailer, demonstrates that this case presents an issue of joint possession of the premises.

In a case where there is joint control, “a defendant is only deemed to have possession and control where additional evidence in the record connects him or her to the controlled substance.” State v. Chavez, 128 S.W.3d 569, 574 (Mo.App.2004). This additional evidence must demonstrate sufficient incriminating circumstances to permit the inference of a defendant’s knowledge and control over the controlled substance. Bacon, 156 S.W.3d at 378; Hendrix, 81 S.W.3d at 83. The following additional incriminating circumstances have been determined to raise an inference of knowledge and control in a case of joint possession of the premises: (1) routine access to an area where the substances are kept; (2) being in close proximity to drugs or drug paraphernalia in plain view of the police; (3) finding a defendant’s personal belongings with the drugs; and (4) consciousness of guilt. See Bacon, 156 S.W.3d at 378; State v. Smith, 33 S.W.3d 648, 653 (Mo.App.2000); State v. West, 21 S.W.3d 59, 63-64 (Mo.App.2000). Whether sufficient additional incriminating circumstances have been proven is determined by looking at the totality of the circumstances. West, 21 S.W.3d at 63-64.

In the case at bar, all of the additional incriminating circumstances identified above were present. Defendant admitted owning the trailer where methamphetamine was being manufactured and was found. Several officers testified that Defendant was living alone in the trailer at that time. Defendant had routine access to the trailer, and it contained his clothing and other personal belongings. He admitted at trial that he had been inside the trailer only hours before the search warrant was executed. When officers arrived at 1:00 a.m. in the morning to conduct the search, Defendant was observed fleeing from the residence. He was caught only 50 feet from the trailer. At that time, he was moving away from the trailer and had not turned on the flashlight he was holding, despite the “pitch black” conditions. Moreover, Defendant’s eyeglasses were found on the ground between the trailer and the spot where Defendant was apprehended, which supports the officer’s testimony that Defendant was fleeing from the trailer. Although there was a light on inside the trailer, it could not be observed by officers outside. Upon entry, Deputy Jackson immediately smelled an “obnoxious” odor commonly associated with meth labs. A meth lab was set up in plain view inside the trailer. The drug residue and paraphernalia recovered from the trailer tested positive for methamphetamine. Defendant exhibited consciousness of guilt by denying that he was the owner of the trailer where these items were found. He also made a very significant self-incriminating statement because, when Deputy Jackson asked where the “finished product for the meth lab” was located, Defendant told the officer exactly where to find it. The officer recovered methamphetamine powder in a folded coffee filter from Ricky’s shirt pocket. Another coffee filter containing methamphetamine powder that was still drying was found on top of the camp fuel can inside the trailer. Therefore, the jury could infer that the methamphetamine in Ricky’s pocket had been produced inside the trailer and removed by Ricky when he fled from police. The jury could also infer that Defendant would not have known where to find the “finished product” unless he had been inside the trailer and knew that methamphetamine was being produced there.

After examining the totality of the circumstances, we conclude that the State presented sufficient evidence of additional incriminating circumstances to permit the inference that Defendant had knowledge of and control over the methamphetamine found inside his trailer and in Ricky’s shirt pocket. Since the State’s evidence was sufficient to make a submissible case that Defendant constructively possessed this methamphetamine, the trial court correctly overruled Defendant’s motion for judgment of acquittal filed at the close of all the evidence. Therefore, we deny Defendant’s point on appeal and affirm the trial court’s judgment.

SHRUM and BARNEY, JJ., Concur.

      . All references to statutes are to RSMo (2000) unless otherwise specified.

      . Defendant was also charged with committing four additional offenses: (1) the class B felony of manufacturing methamphetamine, a controlled substance, in violation of § 195.211; (2) the class C felony of creation of a controlled substance by possessing red phosphorus, a precursor ingredient of methamphetamine or amphetamine, with the intent to create a controlled substance in violation of § 195.420; (3) the class C felony of creation of a controlled substance by possessing muriatic acid, a precursor ingredient of methamphetamine or amphetamine, with the intent to create a controlled substance in violation of § 195.420; and (4) the class D felony of possessing drug paraphernalia in violation of § 195.233. The jury found Defendant not guilty of these crimes.

      .The use in some instances of given names, rather than surnames, is for the sake of clarity; no disrespect is intended.

        . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . After Ricky’s arrest, he was charged with the same offenses as Defendant. Ricky pled guilty to the charges and was sentenced to a term of imprisonment.

      . In view of our disposition of the first prong of Defendant's argument, we need not address the related issue of whether the State's evidence was sufficient to permit an inference that Defendant constructively possessed the methamphetamine found at the scene in Teresa’s car.