text:
    STATE of Missouri, Respondent, v. Eric OLIPHANT, Appellant.
    No. ED 84933.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Eric Oliphant (“Defendant”) appeals from his conviction of trafficking in the second degree. A jury convicted Defendant of trafficking in the second degree, Section 195.223. He was sentenced as a prior and persistent drug offender to ten years’ imprisonment without the possibility of probation or parole. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Orlando CRUZ, Devnandini Rastogi-Cruz, Garret Burris, and Margaret Burris, Plaintiffs/Counterclaim Defendants/Respondents, v. Marilyn POLKINGHORNE-BOLLMEIER, and Charles Bollmeier, Defendants/Counterclaimants/Appellants.
    No. ED 85018.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 21, 2005.

      Anthony J. Soukenik, Stephen Philip Niemira, Sandberg, Phoenix & VonGon-tard, Julia C. Walker, Co-Counsel, St. Louis, MO, for Marilyn and Charles Boll-meier.
    G. Carroll Stribling, Jr., Melissa B. Nis-senholtz, Husch & Eppenberger, LLC, St. Louis, MO, for Garrett and Margaret Burris.
    Jones, Haywood, Bick, Kistner & Jones, P.C., Robert E. Jones, Adam R. Lorenz, Clayton, MO, for Orlando and Devnandini Rastogi Cruz.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Marilyn Polkinghorne-Bolhneier and Charles Bollmeier (collectively, the Boll-meiers) appeal the trial court’s judgment, entered after a non-jury trial, to the extent that the trial court denied relief on their counterclaim for specific performance of a Road Maintenance Agreement (Agreement) executed by them and Garrett Burris and Margaret Burris (collectively, the Burrises) regarding access to and maintenance of Broomstick Lane; granted the Burrises, as well as Orlando Cruz and Devnandini Cruz (collectively, the Cruzes) a permanent injunction prohibiting the Bollmeiers “from restricting access by ingress or egress to the entire length of Broomstick Lane”; and did not specify how Broomstick Lane is to be maintained.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . The trial court also entered a judgment in favor of the Cruzes and against the Bollmeiers for trespass, assessing one dollar in damages on that claim; and denied relief on the Boll-meiers’ trespass claim. These parts of the judgment are not the subject of this appeal.

      . The Burrises’ motion to strike the Bollmei-ers' brief is denied.


text:
    Terry KRAMER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85334.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Terry Kramer (“Movant”) made an Alford plea of guilty to child molestation in the first degree. The court ordered Mov-ant incarcerated in the Missouri Department of Corrections for seven years. On January 6, 2004, Movant filed a pro se motion for post-conviction relief pursuant to Rule 24.035. Post-conviction counsel was appointed on the same day. The motion court denied Movant’s request without an evidentiary hearing. Movant appealed, and this court reversed and remanded citing the motion court’s failure to enter findings as to one of Movant’s claims. Kramer v. State, 136 S.W.3d 87 (Mo.App. E.D.2004). On September 21, 2004, the motion court filed its Amended Order and Judgment again denying Movant’s post-conviction relief without a hearing. Movant appealed.

Movant claims in his sole point relied on, that the motion court erred when it denied his motion for post-conviction relief without an evidentiary hearing because he alleged facts that would entitle him to relief. Movant alleged that his plea was not voluntary because the plea court represented that it would consider sentencing him to probation upon receipt of a favorable pre-sentence investigation report. Movant claims that at sentencing, the court stated that Movant was foreclosed from receiving probation because of the nature of the offense and that the court made a practice of forbidding probation in all such cases. Movant contends that, absent his reasonable belief that he would be considered for probation, he would not have pled guilty and would have insisted upon a trial. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order. We affirm the judgment pursuant to Rule 84.16(b).

      . In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) the Supreme Court recognized a defendant could choose to plead guilty, although not actually admit guilt, when the record strongly supported a finding of guilt and the defendant believed a plea bargain was in his or her best interest.

      . All Rule references are to Mo. Rules Civ. P.2004 unless otherwise indicated.


author: NANNETTE A. BAKER, Judge.

text:
    Melanie Platt TONKOVICH, f/k/a Melanie Ann Molasky, and Jonas Denos, f/k/a Jonas Molasky, Appellants, v. CROWN LIFE INSURANCE CO., and Canada Life Assurance Co., Respondents.
    No. ED 85238.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.

      Burton Newman, David Perney, Mark E. Goodman, Jerome S. Kraus, St. Louis, MO, for appellant.
    Steven H. Schwartz, Jeffrey R. Baron, Jack B. Spooner, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Melanie Tonkovieh and Jonas Denos (collectively, “Heirs”) filed a claim alleging that Crown Life Insurance, Co. and Canada Life Assurance Co. (“Insurance Companies”) wrongfully paid insurance proceeds to Allan Molasky as trustee for the A & G Trust. The trial court determined that there were no genuine issues of material fact and that the insurance companies were entitled to summary judgment. It denied Heirs’ motion for summary judgment and granted Insurance Companies’ motion for summary judgment. Heirs appeal.

Background

Mark Molasky died intestate on January 29, 1990. Melanie Tonkovich and Jonas Denos were his only children and the only heirs to the estate of their father. Crown Life Insurance Co. and Canada Life Assurance, Co. insured the life of Mark Molasky (“Insured”) for $5 million dollars under a life insurance policy (“the 552 Policy”). The policy was originally owned by Molasky Enterprises, Ltd. (“Molasky Ltd.”). Molasky Ltd. was the sole owner and beneficiary. On September 9, 1977, Molasky Ltd. transferred 100 percent ownership rights to Melanjo Investment, Inc. (“Melanjo”) and designated Melanjo as the sole beneficiary of the policy. Allan Molasky, Insured’s father, (“Allan”) and Marti Ellen Rose, Insured’s sister, (“Marti”) were the sole directors of Melanjo. Allan was president and Marti was the sole shareholder. Melanjo, Allan, Marti and Insured’s Mother, Gloria Mola-sky (“Gloria”) paid the premiums on the 552 Policy. The premiums averaged approximately $150,000 per year, totaling over $2.5 million throughout the life of the policy. Insured and Heirs were never owners nor were they designated beneficiaries of the 552 policy. In addition, they did not pay any premiums on the policy.

On August 1, 1983, Melanjo executed a trust document known as the A & G Trust (“1983 Trust”). The trustees and primary beneficiaries of the 1983 Trust were Allan, Marti and Gloria. The trust document was signed by Allan, as president of Me-lanjo. Allan, Marti and Gloria signed as trustees. At the time the trust document was executed, no property was identified or placed in the trust. On January 28, 1985 Melanjo executed a Crown Life Policy Title Request (“Title Request”) and transferred 80% ownership in the 552 Policy to the 1983 Trust. The Title Request also designated the 1983 Trust as a beneficiary of 80 percent of the policy proceeds. No contingent beneficiary was named. Marti and Allan signed the Policy Title Request as trustees. On August 1, 1989 Melanjo, through Marti and Gloria, named the 1983 Trust contingent owner and contingent beneficiary of another life insurance policy (“755 Policy”) which also insured the life of Mark Molasky. The 1983 Trust accepted cash dividends on the 552 Policy from 1985 through 1990. These dividends were used to pay part of the policy premiums on both policies.

Insured died on January 29, 1990. On February 1, 1990, Allan filed a death claim with Crown Life on the 552 Policy and signed it as co-trustee of the 1983 Trust. Crown Life paid $3.2 million to the “A & G Trust” as beneficiary of the 552 Policy. This was 80 percent of the net death benefits of the 552 Policy. The Insurance Companies did not require this request to be made under oath and did not request a copy of the 1983 Trust to confirm that the trust existed. In 1990 Allan opened a bank account in the name of the 1983 Trust, using the trust’s federal tax identification number. He deposited the death benefits into that account. On February 7, 1990, Marti Ellen Rose executed a document entitled the “A & G Trust Dated February 7, 1990” (“1990 Trust”). In 1998, Melanie Platt Tonkovich filed suit against Allan, seeking an accounting relating to the 1983 Trust, (“the accounting suit”). Crown Life was not a party to that case. During discovery of the accounting suit, the depositions of Allan and Howard Wittner, (“Wittner”) attorney for Allan and Melanjo, were taken. Wittner also filed an affidavit. In 2003, Heirs filed this action against Crown Life.

In Heirs’ first point relied on, they contend that the trial court erred in granting Insurance Companies’ motion for summary judgment because a genuine issue of material fact exists with respect to the manner in which the contract disposes of the insurance proceeds in the event that the A & G Trust is nonexistent. Heirs, in their second point, contend that the trial court erred in granting summary judgment to Insurance Companies because the evidence demonstrates that the 1983 Trust did not exist at the time of the death of Insured and the insurance contract did not provide a contingent beneficiary. Lastly, Heirs assert that the trial court erred in not entering summary judgment for Heirs because the 1983 Trust did not exist at the time of death of the Insured and the insurance contract did not provide a contingent beneficiary. We will address Heirs’ second point first because it is dispositive. We affirm.

Standard of Review

Review of a grant of summary judgment is de novo. ITT Comm’l Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The Court will review the record in the light most favorable to the party against whom judgment was entered. Id. Additionally, the party against whom summary judgment was entered is entitled to all reasonable inferences from the record. Hertel ex rel. Hertel v. Nationsbank N.A., 37 S.W.3d 408, 410 (Mo.App. E.D.2001). However, the facts set forth in support of a party’s motion will be taken as true unless contradicted by the non-movant’s response. ITT Comm’l Fin. Corp., 854 S.W.2d at 376.

A party is entitled to summary judgment where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04. To demonstrate that summary judgment is proper, a defending party may present facts negating any element of the plaintiffs cause of action, show the non-movant has not, or cannot, produce evidence of the existence of any of those elements, or show there is no genuine issue of fact necessary to support the defending party’s affirmative defenses. ITT Comm’l Fin. Corp., 854 S.W.2d at 381. Once the defending party has made a pri-ma facie showing, the burden shifts to the plaintiff to set forth specific facts, by affidavit, deposition, or otherwise, showing the existence of a genuine issue of fact. Id.

A “genuine issue” is a real, non-frivolous dispute that exists where the record contains competent, material evidence that two plausible, but contradictory accounts of essential facts in the case. Ackerman Buick, Inc. v. Gen. Motors Corp., 66 S.W.3d 51, 54 (Mo.App. E.D.2001). Only those factual disputes that might affect the outcome of the case under the applicable law are considered “material” for purposes of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is a dispute that is real and not merely argumentative, imaginary, or frivolous. Ackerman Buick, Inc., 66 S.W.3d at 54. If the trial court’s judgment is sustainable on any ground as a matter of law, even one different than that posited in the motion for summary judgment, the judgment should be sustained. ITT Comm’l Fin. Corp, 854 S.W.2d at 387-88.

Existence of the 1983 Trust

Heirs contend that the trial court erred in granting Insurance Companies’ motion for summary judgment because the 1983 Trust did not exist at the time Insured died and the insurance contract did not provide a contingent beneficiary. Insurance Companies claim that the trust was valid under the Missouri Insurance Trust Statute, Section 456.030 and that Melanjo had the specific intent to create the trust.

To establish a valid, enforceable express trust, there must be (1) a beneficiary, (2) a trustee, (3) a trust res so sufficiently described or capable of identification that title thereto can pass to the trustee, (4) actual delivery, assignment or conveyance of legal title to the corpus to the trustee. Atl. Nat. Bank of Jacksonville, Fla., v. St. Louis Union Trust Co., 357 Mo. 770, 211 S.W.2d 2, 5 (1948); Estate of Harvey v. Luther Coll., 802 S.W.2d 585, 588 (Mo.App. W.D.1991). The evidence necessary to establish the validity of a trust, “must be clear and convincing and so full and demonstrative as to remove from the mind ... any reasonable doubt with respect thereto.” Bank of Jacksonville, 211 S.W.2d at 5.

Heirs first claim that the 1983 Trust is not valid because it was improperly funded. Heirs argue that no property was transferred to the trustees to be held in trust and thus the trust is invalid. However, the Missouri legislature enacted Section 456.030, the life insurance trust statute, in 1983. This statute states, in relevant part:

Proceeds of life insurance policies heretofore made payable to a trustee or trustees named as beneficiary or hereafter to be named beneficiary under an inter vivos trust shall be paid directly to the trustee or trustees and held and disposed of by the trustee or trustees as provided in the trust agreement or declaration of trust in writing made and in existence on the date of death of the insured, whether or not such trust or declaration of trust is amendable or revocable or both, or whether it may have been amended, and notwithstanding the reservation of any or all rights of ownership under the insurance policy or annuity contract; subject, however, to a valid assignment of any part of the proceeds. It is not necessary to the validity of such trust agreement or declaration of trust that it be funded or have a corpus other than the ñght, which need not be irrevocable, of the trustee or trustees named therein to receive such proceeds as beneficiary.

(Emphases added). Under this statute and Missouri common law, a trust need not be funded or have a corpus except the right to receive proceeds of a life insurance policy. See Duncan v. Duncan, 884 S.W.2d 383 (Mo.App. S.D.1994). Therefore, this argument fads.

Heirs also contend that the trust is invalid because the trust document was created a year and a half before the trust was named as owner and beneficiary of the 552 Policy. However, there is no requirement in Section 456.030 that the life insurance trust and the beneficiary designations be made simultaneously. The statute requires only that the trust be in writing and in existence on the date of the death of the insured and that the proceeds be payable to a trustee named as a beneficiary. Section 456.030 (Emphasis added).

Furthermore, there is no such requirement in the common law. There are four requirements to establish a valid trust. See Atlantic Nat Bank, 211 S.W.2d at 5. The trust created in this case meets all four requirements. First, the trust must have a beneficiary. Beneficiaries of the 1983 Trust were Allan, Marti and Gloria. Second, the trust must have a trustee. Allan, Marti and Gloria were the named trustees. Third, there must be a trust res so sufficiently described or capable of identification that title thereto can pass to the trustee. At inception, the res of the 1983 Trust was the 552 Policy, which is a valid res under Section 456.030. Later, the 755 Policy was added to the trust. Lastly there must be actual delivery, assignment or conveyance of legal title to the corpus to the trustee. In this case, there was an actual conveyance of legal title when Melanjo executed the Title Request form. The Title Request transferred ownership of the policy from Melan-jo to the 1983 Trust. It also made the 1983 trust beneficiary of 80% of the policy proceeds. - There is no common law requirement that this must be done simultaneously with the drafting of the trust document.

In support of their argument, Heirs cite a 1964 Missouri Supreme Court case, decided well before the life insurance trust statute was enacted. However, the case does not support Heirs’ proposition that the life insurance beneficiary designation must be made simultaneously with the execution of the trust document. Heirs cite the case language which states: “A trust cannot be created unless there is trust property.” Edgar v. Fitzpatrick, 377 S.W.2d 314, 317 (Mo. banc 1964). This language is very general and does not indicate that a trust must be funded with property simultaneously with drafting.

In Edgar, a marital rights case, the court held that the decedent did not create a trust because he did not properly specify what property was to be transferred to the trust. Edgar, 377 S.W.2d 314. The decedent attempted to place in trust shares of stock that he did not’yet own, but anticipated that he might buy in the future. Id. The Court determined that the declaration of property was indefinite. Id. The court, quoting Scott on Trusts, states “[The grantor] cannot ... create a present trust, either by making a transfer to another in trust or by declaring himself trustee, unless he is the present owner of an interest in the property ... Until the trust property is ascertained, no trust arises.” Id.

The Heirs cite to language from Trautz v. Lemp, a 1932 case which the Edgar Court also cites.

The law relative to trusts provides that a trust must arise at the time it is attempted to be created, instead of being brought forth by subsequent and independent circumstances. The relation of trustee and cestui que trust must arise at time of the original, and be contemporaneous therewith, and cannot be brought forth by subsequent and independent circumstances. In order to create a valid express trust, it is necessary that some estate or interest be conveyed to the trustee, and, when the instrument creating the trust is other than a will, that estate or interest must pass immediately.
Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 139. See Edgar, 377 S.W.2d 314, 318.

However, this language is inapplicable to the issue in this case. It is not about the timing of funding a trust. This language regards funding trusts with property as to which the grantor does not have a present interest, but only a future interest or expectancy. Edgar, 377 S.W.2d 314, 318. See also, Penney v. White, 594 S.W.2d 632, 639 (Mo.App. W.D.1980)(Citing Edgar) (One must have present power of disposition over trust property.); Kully v. Goldman, 208 Neb. 760, 305 N.W.2d 800, 802 (1981) (Citing Edgar) (It appears to be the universal rule that mere expectancies cannot be held in trust ... The Courts have uniformly held that no trust can be created unless there exists some property interest which may be held by the trustee for the claimant.) (citations omitted). Crews v. Overbey, 645 S.W.2d 388, 390 (Tenn.1983) (Citing Edgar )(The weight of authority supports the view that a declaration of trust in property to be acquired in the future does not create a present trust; it is essential to have a present interest in the property to be transferred to the trustee.); 4C Mo. Prac., Trust Code & Law Manual Section 2:2 (2005 ed.) (citing Edgar) (A person cannot create a trust of property he does not own. It is not enough that he ... expects to own it in the future.).

This case does not involve future interests or expectancies beyond what is allowed under Section 456.030. Melanjo was owner of the 552 Policy when the trust document was created. Melanjo was owner of the 552 Policy when it executed the Title Request, which transferred ownership of the property to the trustees and changed the beneficiary designation. Therefore, the trust property was in existence and owned by Melanjo at all relevant times and the law regarding future interests and expectancies as trust property does not apply to this case.

This court has already decided a case in which a beneficiary designation and life insurance trust were not executed simultaneously. Hollis v. Estate of Hollis, 845 S.W.2d 156 (Mo.App. E.D.1993). In Hollis, the grantor signed a beneficiary designation naming her two children as beneficiaries and her sister as trustee. Id. at 157. Sixteen days later, she drafted her own will, naming her sister as trastee for her children. Id. She wanted all of her assets, with a few named exceptions, to be included in the trust. Id. The court construed the two documents together and held that the time gap between the signing of the beneficiary designation and the creation of the testamentary trust did not prevent the formation of a valid trust. Id. at 159. The same reasoning applies in this case. The law does not require that life insurance beneficiary designations be made simultaneously with trust documents and thus Heirs’ contention is erroneous.

However, even if one could interpret the statutes and case law in that manner, the trust in question in this case would still be valid. In Edgar, the court says that there is not trust property if the property is not definite, or definitely ascertainable, but a trust may subsequently arise when the property becomes definite or definitely ascertainable if the trustee later manifests an intention to create a trust. Edgar, 377 S.W.2d 314, 317. This language indicates that a trust document may be created at one time but an actual trust does not come into existence until a later time when a trust is properly funded and the trustee manifests an intention to create a trust. The Edgar Court found that the grantor did not make a later manifestation of intent to create a trust after he acquired more property, and thus it could not determine what was the property of the trust. Edgar, 377 S.W.2d 314, 317.

In this case Melanjo executed the Title Request form, which was a sufficient manifestation of intent to “revive” a trust under this principle. It transferred 80% ownership of the 552 Policy to “A & G Trust dated 1 August 1983.” It also changed the beneficiary designations and designated the 1983 Trust as beneficiary of 80% of the proceeds of the 552 Policy. Allan and Marti signed the Title Request form as trustees of the A & G Trust. Transferring ownership and beneficiary rights of a multi-million dollar life insurance policy to the 1983 Trust is a significant and definite manifestation of intent to create a trust in specific property under Edgar.

Intent

Heirs also contend that the trust is not valid because Melanjo lacked appropriate intent to create a trust. The intention of the creator of the trust is the paramount question. Forester v. Bellville, 513 S.W.2d 726, 729 (Mo.App.St.L.1974). The law of this state is well-settled that, absent any ambiguity in the terms, the intent of the grantor of a testamentary or inter vivos trust is to be ascertained from the four corners of the instrument without resort to parol evidence as to that intent. Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434 (Mo.App. W.D.2004). Thus, Missouri courts do not rely on extrinsic evidence of intent where the grantor of a trust has unambiguously expressed his or her intent. Id.

The document titled “A & G Trust” is a 19-page document. It details who the trustees and beneficiaries are, the purpose of the trust, the powers of the trustees, the distribution of the trust, and various other terms. On the first page of the trust, it says “the Grantor desires to create this Irrevocable Trust for the benefit of itself and the beneficiaries hereinafter provided for.” The Title Request form transferred 80% ownership of the 552 Policy to “A & G Trust dated 1 August 1983.” It also changed the beneficiary designations and designated the 1983 Trust beneficiary of 80% of the proceeds of the 552 Policy. Allan and Marti signed the Title Request form as trustees of the A & G Trust. Each of these documents, held together or separately, contain more than sufficient evidence that Melanjo intended to create a trust.

Heirs’ only evidence that Melanjo did not intend to create a trust is the testimony taken from the depositions and affidavits created for the 1998 accounting suit filed by Melanie Tonkovieh against the trustees. Heirs claim that these depositions and affidavits contain statements that prove that Melanjo did not intend to create a trust when it executed the 1983 Trust document. This is parol evidence, which should not be considered if the intent is clear from the four corners of the document. Point denied.

Accordingly, we find that the 1983 Trust was. valid and Insurance Companies did not wrongfully pay the proceeds of the 552 Policy to the 1983 Trust. Heirs’ other two points on appeal rest upon the invalidity of the 1983 trust and are therefore moot.

Affirmed.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.

      . On December 14, 1982 Melanjo’s corporate charter was involuntarily dissolved. On May 18, 1984 it was reinstated.

      . Melanjo also transferred 10% ownership to the Jonas Molasky Trust and 10% to the Andrew Carey Rose Trust and designated each as beneficiaries of 10% of the policy proceeds. The Jonas Molasky Trust and the Andrew Carey Rose Trust are not at issue in this lawsuit.

      . All rule references are to Mo. Rules Civ. P.2004 unless otherwise indicated.

      . In 2004 Section 456.030 was renumbered to Section 456.005. All statutory references are to R.S.Mo 2000 unless otherwise indicated.


text:
    Everette F. DODD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84826.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Everette Dodd (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 after an evidentiary hearing. In his motion, movant claims he was denied effective assistance of trial counsel because counsel failed to properly investigate his case and prepare for trial.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Michael RANDOLPH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85194.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Timothy Joseph Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Michael Randolph (“Movant”) appeals from the motion court’s judgment denying his Rule 29.15 post-conviction motion without an evidentiary hearing. Movant was convicted of one count of assault in the first degree pursuant to Section 565.020, RSMo 2000, and one count of armed criminal action pursuant to Section 571.015, RSMo 2000. Movant was sentenced to serve twenty-five years and ten years imprisonment respectively, with the sentences to run concurrently. This Court affirmed Movant’s conviction. State v. Randolph, 30 S.W.3d 192 (Mo.App. E.D.2000). Movant subsequently filed a timely Rule 29.15 motion for post-conviction relief, which the motion court denied without a hearing.

On appeal, Movant argues the motion court erred in denying his 29.15 post-conviction relief motion without an evidentiary hearing because he received ineffective assistance: (1) of trial counsel for failing to properly preserve a gender Batson claim after the State struck three white female venirepersons during jury selection; and (2) of appellate counsel when appellate counsel failed to brief and argue that the trial court impermissibly used sentencing to punish Movant for exercising his right to proceed to trial.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion’s court decision was not clearly erroneous. White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997); Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b). The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Demetrius MIMS, Defendant/Appellant.
    No. ED 85157.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Demetrius Mims, Moberly, MO, pro se.
    Deborah Daniels, Richard Anthony Starnes, Co-Counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Demetrius Mims (Defendant) appeals from a judgment denying his motion to withdraw his guilty plea filed pursuant to Rule 29.07(d). Defendant argues that the trial court was without jurisdiction to accept his plea because no amended information was filed. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion and the denial of Defendant’s motion to withdraw his guilty plea was not clearly erroneous. Sharp v. State, 908 S.W.2d 752, 755 (Mo.App. E.D.1995). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . All rule references are to Mo. R.Crim. P.2005, unless otherwise indicated.


text:
    In the Interest of A.D.T. and R.L.L.T.
    No. ED 85134.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Linda A. Colburn, St. Louis, MO, William P. Grant, Clayton, MO, for appellant.
    Carol K. Bader, Clayton, MO, Chimene Y. Laskley, St. Louis, MO, for respondent.
    Adrienne L. Schaffer-James, Clayton, MO, for juveniles.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Mother and Father appeal the judgment terminating their parental rights with respect to A.D.T. and R.L.L.T. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James Dale PAXTON, Appellant.
    No. ED 84934.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Timothy Joseph Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant James Dale Paxton (“Pax-ton”) appeals from the trial court’s judgment after his conviction by a jury of robbery in the first degree, Section 569.020, RSMo 2000, and armed criminal action, Section 571.015, RSMo 2000. Pax-ton was sentenced to two concurrent twenty-year terms of imprisonment. On appeal, Paxton argues the trial court erred in: (1) overriding his objection at trial and request for a mistrial when the State elicited evidence by a police detective explaining the use of the EPIC system because it indicated that Paxton had prior arrests; and (2) permitting the State to elicit the cashier victim’s testimony during a second viewing of the surveillance tape because the tape speaks for itself and the testimony was cumulative.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 30.25(b).


author: MARY K. HOFF, Presiding Judge.

text:
    STATE of Missouri ex rel., Matthew JOHNSTON, Relator, v. Honorable John B. BERKEMEYER, Judge of Gasconade County, Respondent.
    No. ED 86191.
    Missouri Court of Appeals, Eastern District, Writ Division Four.
    June 21, 2005.

      Steven R. White, Purschke & White, L.L.C., Union, MO, for Relator.
    Mary E. Weston, Assistant Prosecuting Attorney, Hermann, MO, for Respondent.
   OPINION

MARY K. HOFF, Presiding Judge.

Matthew Johnston (Relator) filed a Petition for Writ of Prohibition. This Court granted a preliminary order in prohibition. The trial court, Honorable John B. Ber-kemeyer (Respondent), filed an answer to the preliminary order in prohibition. In accordance with Rule 84.24, the court dispenses with further briefing and oral argument. The preliminary order is made absolute.

On February 11, 2004, Relator pled guilty to one count of second-degree property damage, a Class B misdemeanor, in violation of Section 569.120 Respondent sentenced Relator to thirty days in the county jail and remanded Relator to the custody of the' sheriff. On February 18, 2004, seven days after Relator was sentenced, Respondent held a hearing in which it suspended the balance of Relator’s sentence, released Relator from the county jail, and placed him on two years’ probation “under the standard conditions of probation.” On June 3, 2004, nearly four months after placing Relator on probation and nearly three months after Relator’s original thirty-day sentence had expired, Respondent issued an order suspending Relator’s probation because he had not paid court costs associated with his conviction for property damage. Respondent subsequently issued a warrant for Relator’s arrest. Eventually, Relator paid the court costs and Respondent withdrew the arrest warrant, but Relator’s probation remained suspended.

In September 2004, Respondent found that, in August 2004, Relator had received a citation for Minor in Possession of Alcohol while operating a motor vehicle and for failure to display valid plates, both of which were “violations of Conditions # 1 and #2 of Order of Probation.” In the case’s docket entries, Respondent noted that, because of Relator’s violations of the probationary conditions, Relator’s probation “remain[ed] suspended.” Respondent issued a summons and ordered Relator to appear on October 6, 2004, for a probation status hearing. Relator appeared as ordered, and, after several continuances, Respondent set a probation revocation hearing for May 4, 2005.

On April 27, 2005, Relator filed his Petition for Writ of Prohibition (petition) claiming that Respondent exceeded his authority in attempting to conduct a probation revocation hearing and requesting that this Court issue a writ of prohibition to prevent Respondent from taking further action against Relator in this matter. In his petition, Relator presents two alternative reasons in support of his claim that Respondent exceeded his authority: 1) by recalling Relator from the county jail after he had served a portion of his thirty-day sentence, Respondent actually placed Relator on parole, not probation, and the term of Relator’s parole expired on .March 12, 2004; or 2) even if Respondent properly placed Relator on probation, the State failed to file a motion to revoke Relator’s probation, and, therefore, Respondent lacked jurisdiction to revoke Relator’s probation until such a motion is filed. However, given our disposition of Relator’s first argument in his petition, we need not address Relator’s second argument.

Under Missouri law, the trial court shall have the power to place a defendant on probation or parole if the defendant was convicted of any offense over which the trial court has jurisdiction, except as otherwise provided by statute. Section 559.100.1. “Probation” is defined as a procedure under which a defendant who has been found guilty of a crime by either a verdict or a guilty plea and is released by the trial court without being imprisoned, subject to conditions imposed by the trial court and subject to the supervision of the State’s board of probation and parole, unless the defendant was sentenced pursuant to Section 559.026 or 559.115. Section 217.650(7); Section 559.026; Section 559.115. Section 559.026 authorizes the trial court to require a defendant convicted of either a misdemeanor or a felony to serve a period of detention or imprisonment as a condition of probation, as long as the trial court imposes such a condition “when probation is granted,” i.e., at sentencing. Section 559.026. Section 559.115 further authorizes the trial court to retain jurisdiction over a defendant convicted of a felony and to sentence him to a period of up to 120 days’ imprisonment in the department of corrections before considering the defendant’s eligibility for probation or granting probation. Section 559.115. Thus, unless the defendant was sentenced pursuant to Section 559.026 or Section 559.115, no Missouri statute authorizes the trial court to place the defendant on probation after he has been committed to jail or the department of corrections. Moreover, in a criminal proceeding, once judgment and sentencing occur, the trial court has exhausted its jurisdiction, and subsequent proceedings will be considered a nullity. State ex rel. Simmons v. White, 866 S.W.2d 443, 444-45 (Mo. banc 1993). The trial court can take no further action except as otherwise expressly provided by statute. Id. at 445.

On the contrary, “parole” is defined as the release of a defendant to the community by the court or the State’s board of probation and parole prior to the expiration of his term of imprisonment, subject to conditions imposed by the trial court or the board and its supervision. Section 217.650(4). Thus, , parole is granted after the defendant has served part of his total sentence. “The period served on parole ... shall be deemed service of the term of imprisonment and ... the total time served may not exceed the maximum term or sentence [originally imposed].” Section 217.730.1; see also State ex rel. Woodmansee v. Appelquist, 687 S.W.2d 176,177 (Mo. banc 1985); State v. Mallory, 886 S.W.2d 89, 91 (Mo.App. W.D.1994).

In this case, Relator was sentenced to thirty days in the county jail after a guilty plea. At the time sentence was imposed, Respondent did not place Relator on probation or sentence Relator to a period of detention or imprisonment with the possibility of probation at a later time pursuant to either Section 559.026 or Section 559.115. Clearly, because Relator was not sentenced pursuant to the provisions of either Section 559.026 or Section 559.115, Respondent was without authority to place Relator on probation after he had served part of his total jail sentence. Moreover, on February 11, 2004, when Respondent accepted Relator’s guilty plea, entered its judgment, and imposed the thirty-day jail sentence, Respondent exhausted its jurisdiction to amend Relator’s sentence to include probation, and the subsequent proceeding on February 18 in which Respondent purported to place Relator on two years’ probation was a nullity. Simmons, 866 S.W.2d at 444. In his answer, Respondent asserts that the trial court retains jurisdiction under Rule 75.01 to amend the judgment for thirty days after entry of the judgment and so Respondent could amend the judgment on February 18,2004 to provide for probation. However, Rule 75.01 does not apply to criminal proceedings.

At the proceeding on February 18, 2004, when Respondent suspended the remainder of Relator’s sentence and released him, Relator was in effect placed on parole. The record reveals that Relator’s original thirty-day sentence was scheduled to expire on March 12, 2004. Thus, because Relator’s period of parole could not exceed the thirty-day sentence originally imposed by Respondent and because Relator served his sentence through a combination of jail time and parole, Relator’s sentence was complete on March 12. See Woodmansee, 687 S.W.2d at 177; Mallory, 886 S.W.2d at 91.

We hold that Respondent was without authority to place Relator on probation after he served part of his original jail sentence and that Relator already has served his entire sentence of thirty days through a combination of jail time and parole; therefore, Respondent is without authority and is prohibited from conducting further proceedings in this matter. The preliminary order is made absolute.

KATHIANNE KNAUP CRANE, Judge and GLENN A. NORTON, Judge: Concur.

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

      . See Sections 195.275 through 195.296 (prior and persistent drag offenders), Section 558.018 (persistent and predatory sexual offenders), Section 565.020 (first-degree murder), Section 571.015 (armed criminal action), and Section 559.115 (120-day incarceration program). Section 559.100.1.


text:
    Robert WALTER, Appellant, v. Robert HAUSER, Respondent.
    No. ED 85623.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Rick A. Courtney, St. Louis, MO, for appellant.
    Randall Grady, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Robert Walter (“Walter”) appeals from the trial court’s judgment granting summary judgment in favor of Robert Hauser (“Hauser”) and finding it lacked subject matter jurisdiction over Walter’s petition alleging personal injuries he sustained at work.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Melvin FOLLIS, Employee/Respondent, v. JOHN BENDER & COMPANY and Cambridge Integrated Services, Inc./Virginia Surety Co., Inc., Employer/Insurer/Appellants.
    No. ED 85602.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 21, 2005.
    Todd D. Hilliker, Hans K. Amann, St. Louis, MO, for appellant.
    Robert J. Lenze, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

John Bender & Co., Cambridge Integrated Services, Inc., and Virginia Surety Co., Inc. appeal the final award of the Labor and Industrial Relations Commission that found Melvin Follis was permanently and totally disabled and that his work duties were a substantial factor in causing his arthritis to accelerate and become disabling.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The award is affirmed pursuant to Rule 84.16(b).


text:
    Carl D. FRANKS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85571.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Ronald Salvatore Ri-baudo, Co-Counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Carl D. Franks (Appellant) appeals from the motion court’s denial of his Rule 24.035 motion for postconviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err in denying Appellant’s Rule 24.035 motion as untimely. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2004, unless otherwise indicated.


text:
    Charles EMILY, Appellant, v. B & W FOUNDATIONS, Respondent.
    No. ED 85539.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Gary Joseph Sanguinet, St. Louis, MO, for appellant.
    Christopher T. Archer, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, Sr., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Charles Emily (“Employee”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) denying an award of workers’ compensation benefits. Employee raises two points on appeal. First, Employee claims the Commission erred in finding he was acting outside the course of his employment with B & W Foundations (“Employer”) at the time of the alcohol-related accident he was involved in after leaving a topless bar because the mutual benefit and/or dual purpose doctrine applied. Second, Employee alleges the Commission erred in invoking the forfeiture provision of Section 287.120.6, RSMo 2000, because there was insufficient evidence to support this finding.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. The Commission’s decision is supported by competent and substantial evidence on the record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). An extended opinion reciting the detañed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the Commission’s decision pursuant to Rule 84.16(b).


text:
    In the Interest of M.A.M., a minor.
    No. ED 85494.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Mary Dames Fox, University City, MO, for Lamonica Lewis.
    Suzanne Epstein-Lang, St. Louis, MO, Guardian Ad Litem for M.A.M.
    Karen Ann Siegel, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Lisa Lamonica R. Lewis appeals from a trial court judgment terminating her parental rights to her minor child, M.A.M., pursuant to Section 211.447 RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, nor does it erroneously declare or apply the law. In the Interest of F.N.M., 951 S.W.2d 702, 703 (Mo.App. E.D.1997). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Robert SPINNER, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. 26542.
    Missouri Court of Appeals, Southern District, Division Two.
    June 21, 2005.

      Daniel T. Moore, Moore, Walsh & Al-bright, LLP, Poplar Bluff, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BATES, C.J., SHRUM, J. and BARNEY, J.
   PER CURIAM.

Appellant Robert Spinner (“Driver”) appeals from the trial court’s judgment affirming the suspension of his driving privileges by the Director of Revenue (“the Director”).

Subsequent to a traffic stop conducted on January 21, 2003, the Director suspended the driving privileges of Driver for driving a motor vehicle while having a blood alcohol content of 0.087 percent or more by weight. § 302.505.1, RSMo Cum.Supp. 2002 Driver requested and was granted an administrative hearing pursuant to section 302.530.1, at which time the suspension was upheld. He thereafter sought a trial de novo in the Circuit Court of Howell County, Missouri, as permitted by section 302.535.1. The circuit court entered judgment upholding the Director’s determination. Driver now brings one point on appeal, which is discussed more fully below.

“This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). “Tn assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge.’ ” Martin v. Dir. of Revenue, 142 S.W.3d 851, 857 (Mo.App.2004) (quoting Hawk v. Dir. of Revenue, 943 S.W.2d 18, 20 (Mo.App.1997)). “Such deference is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court.” Id. (quoting Hawk, 943 S.W.2d at 20).

Pursuant to section 302.505.1, RSMo Cum.Supp. 2002, 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 [by weight],

Vernon v. Dir. of Revenue, 142 S.W.3d 905, 909 (Mo.App.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.” Verdoorn, 119 S.W.3d at 545 (quoting § 302.535.1). “When the director establishes a prima facie case, the evidence ‘creates a presumption that the driver was intoxicated.’ ” Vernon, 142 S.W.3d at 909 (quoting Verdoorn, 119 S.W.3d at 545). “ ‘The driver is then entitled to rebut the director’s prima facie case with evidence that his blood alcohol content did not exceed the legal limit.’ ” Verdoom, 119 S.W.3d at 545. Rebuttal evidence should raise “a genuine issue of fact regarding the validity of the blood alcohol test results ... [and] challenge the presumption of validity established by the director’s prima facie case.... ” Id. at 546.

The results of a breath analysis test should be admitted once the Director has established: (1) the test was performed following the rules and regulations promulgated by the Missouri Department of Health (“MDH”); (2) the test was performed by a person with a valid permit; and, (3) the equipment and devices used were approved by the MDH. Stuhr v. Dir. of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989). “A claim that the test results are invalid avails only where there is some evidence of a malfunction despite adherence to correct procedure in the administration of the test.” Young v. Dir. of Revenue, 835 S.W.2d 332, 335 (Mo.App.1992).

The record shows that the only issue raised before the circuit court in the trial de novo was the reliability of the breath test results. “Accordingly, we need not address the probable cause requirement of section 302.505,” in setting out the record. Bradford v. Dir. of Revenue, 72 S.W.3d 611, 612-13 (Mo.App.2002).

Viewing “ ‘the evidence in the light most favorable to the trial court’s judgment ... [and] deem[ing] all facts to have been found in accordance with the result reached by the trial court,’ ” Martin, 142 S.W.3d at 856 (quoting Hawk, 943 S.W.2d at 20), the record reveals that the Director presented certified documents showing that Trooper J.S. Brumble (“Brumble”), a Type III permit holder, administered an analysis of Driver’s breath using a Data-Master breath analyzer, which is approved for use by 19 CSR 25-30.060(3). According to the narrative attached to the Alcohol Influence Report (“AIR”) received into evidence, Brumble noted that Driver:

had difficulty giving an adequate sample. As [Driver] attempted for several seconds to give an adequate sample of breath to test and the Datamaster still indicating that it was not receiving enough breath to test, I pressed the sample override button, which revealed a [Blood Alcohol (“B.A.C.”) ] level of .087 [percent]....

The Director also presented the testimony of Thomas Poindexter (“Poindexter”), a police officer of the City of Mountain View, Missouri, and a Type II permit holder. Poindexter opined that he had been instructed by personnel from the Department of Health, that the “no vol., or no volume button,” also known as a “sample control override” key, is used in those situations when an “officer feels that he has an individual who has given a fair and accurate breath sample, but for health reasons cannot give a complete, accurate sample.” He acknowledged that he was not aware of any prohibition within the MDH regulations against the use of the sample control override key and he stated that once the key is pressed, the machine “records a breath sample that the subject has delivered into the breath tube and records what the blood alcohol content would be.” In other words, once the “no vol” button is pressed, “[y]ou’re simply going ahead and taking the breath sample that the person has given.” Furthermore, he set out that you “would be testing lower lung, not deep.” Additionally, Poindexter stated that “you would be getting a less of a deep lung sample, but you would be getting a deep-lung alveolar lung sample, which is the bottom part of the lung. So you would not be getting as high a reading, you’d be getting a lower reading on the subject’s content.” On cross-examination, Poindex-ter acknowledged that there is no place or “box” on Form 7, the checklist form for use on the DataMaster breathalyzer machine, which authorizes the use of the sample override button. See 19 CSR 25-30, Form 7.

In his sole point on appeal, Driver challenges the admissibility of his breath test result on the grounds that the “sample control override” feature of the DataMas-ter breath analyzing machine was used to take his breath sample, but that such a procedure is not provided for by the rules and regulations the MDH set up for this purpose. Driver argues that section 577.020.3 specifically provides that in order for a chemical analysis of a person’s breath to be considered valid, “it shall be performed ... according to methods approved by the State Department of Health.” In support of his contention, Driver cites to Potts v. State, 22 S.W.3d 226, 231 (Mo.App.2000), for the proposition that “absolute and literal compliance with the regulations approved by the State Department of Health governing methods or devises for testing breathalyzer results must be followed.”

The Director concedes that 19 CSR 25-30.060 does not provide for the use of the sample control override feature. The Director contends, however, that the foregoing regulation “does not prohibit its use, either, and test results have otherwise been deemed sufficient to support a license suspension when obtained by utilizing this feature.” In particular, the Director cites to Bradford v. Dir. of Revenue, 72 S.W.3d 611 (Mo.App.2002), as an example of a situation where the use of the “NV” or “No Volume” button by a Type II permit holder was approved. As Director shows, the court in Bradford tacitly approved of the use of the sample control override key in a situation where the driver would “blow and then stop and then blow and then stop which caused the first test to invalidate the machine and instrument and then invalidate the sample.” Bradford, 72 S.W.3d at 612. The Court went on to observe that the “BAC results were properly in evidence and established [that the Bradford ] Driver had a BAC ... above the statutory limit....” Id. at 614. Bradford stands as persuasive authority and controls the disposition of this appeal.

Here, without objection, Poindexter testified as a Type II permit holder and laid the necessary foundation to demonstrate he was an expert on the mechanical and pertinent theoretical operation of the Da-taMaster breath analyzer. See id. at 614. Furthermore, as Bramble noted in the AIR, Driver was having difficulty in giving an adequate breath sample. The record shows that Bramble followed the proper procedure when administering the test to Driver, which revealed that Driver’s BAC was 0.087 percent by weight. He also opined that by using the no volume button the operator would actually obtain a lower reading on the read out.

We note that there is no requirement that the Director prove exactly what Driver’s BAC was; rather, the Director is required to show “the alcohol concentration in [Driver’s] blood, breath, or urine was eight-hundredths of one percent or more by weight....” § 302.505.1, RSMo Cum. Supp. 2002; see also Bradford, 72 S.W.3d at 614. Given the particular circumstances of this case, we are not persuaded that Driver was prejudiced by use of the no volume button. We cannot say that the trial court erred in accepting the efficacy and scientific reliability attendant to the use of the sample control override function of the DataMaster breath analyzer. See Bradford, 72 S.W.3d at 614. Driver’s point is denied.

The judgment is affirmed.

      . Unless otherwise noted, statutory references are to RSMo 2000.

      . Driver’s account differed from that of Brumble. Driver testified he had no difficulty submitting a full breath sample and that Brumble never indicated to him to blow harder or that he wasn’t blowing correctly.

      . According to Poindexter, a Type II permit is a "maintenance license ... [which] entitles [the holder] to do service on the DataMaster[ ] and make sure it is functioning correctly, minor maintenance, also to instruct law enforcement officers so they can become Type III operators.” Whereas, a Type III permit holder is authorized to "administer tests to subjects arrested for being under the influence.”


text:
    Thomas ANTHONY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64183.
    Missouri Court of Appeals, Western District.
    June 21, 2005.

      Susan L. Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   Order

PER CURIAM.

Thomas Anthony appeals from the denial of his Rule 29.15 motion for post-conviction relief, which the motion court denied without an evidentiary hearing. He alleges that the motion court clearly erred in denying his motion without an evidentiary hearing.

Judgment affirmed. Rule 84.16(b).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Donald C. BANTLE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26525.
    Missouri Court of Appeals, Southern District, Division One.
    June 27, 2005.

      Irene Earns, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Donald C. Bantle (“Movant”) appeals from the motion court’s denial, without an evidentiary hearing, of his amended motion to vacate, set aside, or correct sentence and judgment brought pursuant to Rule 24.035.

On September 27, 2002, Movant pled guilty to the class C felonies of burglary in the second degree in violation of Section 569.170 and first degree tampering in violation of Section 569.080, and the class D felony of possession of burglary tools in violation of Section 569.180. The trial court found that Movant understood the charges and consequences of his plea and subsequently sentenced Movant, in accordance with a plea agreement, to six years each for second degree burglary and for first degree tampering as well as five years for possession of burglary tools. In accordance with the plea agreement, these sentences were to be served consecutively, but to run concurrently with any of Mov-ant’s existing sentences.

Movant filed a timely pro se motion, on December 11, 2002, for post-conviction relief under Rule 24.035 challenging the effectiveness of his plea counsel. On December 27, 2002, the motion court entered an order appointing counsel for Movant. However, on January 13, 2003, private counsel (“post-conviction counsel”) entered his appearance and filed a motion for additional time to amend Movant’s pro se motion. Appointed counsel’s motion to withdraw was granted in February. In March 2004, the motion court placed the case on the dismissal docket for failure to prosecute and required post-conviction counsel to file a formal pleading. Then on April 14, 2004, Movant’s post-conviction counsel moved for a “hearing on his motion to set aside his conviction filed under Rule 24.035.” The State filed a motion to dismiss without an evidentiary hearing on June 14, 2004. Shortly thereafter, on June 23, 2004, Movant’s post-conviction counsel moved to withdraw. (This is his private counsel, not the one the court appointed) Movant then filed a pro se “Motion for Reappointment of Counsel Due to Post-conviction Counsel Abandonment.” The motion court, subsequently, granted State’s motion to dismiss without an evi-dentiary hearing. This appeal follows.

Our review of a motion court’s ruling on a motion for post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Maberry v. State, 137 S.W.3d 543, 546 (Mo.App. S.D.2004). Since the findings of the motion court are presumptively valid, the clearly erroneous standard is satisfied only if after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000): Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

Movant presents one point for our review. He contends, and the State concedes, that the motion court clearly erred in denying his post-conviction motion without first holding a hearing on the issue of abandonment because the face of the record raises a presumption of abandonment in that post-conviction counsel did not comply with the requirements of Rule 24.035(e). Rule 24.035(e) states in pertinent part:

If the [pro se] motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing.

If post-conviction counsel does not comply with this rule then he has presumably abandoned Movant. Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991).

There are two recognized forms of abandonment. The first type of abandonment occurs when counsel takes no action on behalf of Movant and as a result, it appears on the face of the record that Movant’s post-conviction claims have been without meaningful review. Morgan v. State, 8 S.W.3d 151, 153 (Mo.App. S.D.1999); Moore v. State, 934 S.W.2d 289, 291 (Mo. banc 1996). The second type of abandonment occurs when the record reflects that counsel has determined a basis for amending the pro se motion and fails to do so in a timely manner. Morgan, 8 S.W.3d at 154. In the case at bar, Movant’s counsel, after entry of appearance, filed a motion for time to amend, demonstrating on the record that he had a basis for amending Movant’s pro se motion. However, no amended motion was ever filed and Mov-ant’s counsel subsequently withdrew.

A presumption of abandonment arises when the record, on its face, establishes non-compliance with Rule 24.035(e). Moore, 934 S.W.2d at 292. When there is a presumption of abandonment, a hearing to determine if Movant was abandoned must be held. Id. The only instance where a hearing is not mandatory occurs when the record establishes that non-compliance with the rule is a direct result of Movant’s negligence. Morgan, 8 S.W.3d at 154. There is no evidence in the record that Movant’s counsel actually amended the pro se motion or that he provided an affidavit stating that amendments to Movant’s motion were not warranted. Further, it does not appear that Movant acted negligently in this regard.

We, therefore, reverse the judgment and remand for a hearing to determine whether counsel abandoned Movant.

PREWITT and RAHMEYER, JJ., concur.

      . References to rules are to Missouri Rules of Criminal Procedure (2004).

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

      . "Rule 29.15(e), based on a conviction following trial, is the counterpart to Rule 24.035(e), based on conviction following a guilty plea.” Thurlo v. State, 841 S.W.2d 770, 772 (Mo.App. S.D.1992). Therefore, a claim of post-conviction counsel abandonment by a Rule 24.035 movant is also governed by Lu-leff, because the rules are essentially identical and impose the same duties on appointed counsel. See Carroll v. State, 131 S.W.3d 907, 909 n. 4 (Mo.App. S.D.2004).


author: JEFFREY W. BATES, Chief Judge.

text:
    Mark K. RICHARDSON, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.
    No. 26580.
    Missouri Court of Appeals, Southern District, Division Two.
    June 27, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault III, Special Asst. Atty. Gen., Jefferson City, MO, for appellant.
    Carl M. Ward, Chesterfield, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

The Director of Revenue (“Director”) revoked the driving privileges of Mark K. Richardson (“Richardson”) for allegedly refusing to submit to a chemical test of his blood alcohol content pursuant to § 577.041. Thereafter, Richardson filed a petition in circuit court requesting a trial de novo, and the only evidence submitted in the case was the Director’s records. Because these records were internally inconsistent with respect to whether Richardson refused the breathalyzer test, the trial court set aside the revocation and ordered the Director to reinstate Richardson’s driving privileges. The Director appealed. She argues that her records were sufficient to establish a prima facie case for revocation, which Richardson failed to rebut. We affirm the trial court’s judgment.

I. Standard of Review

Our review of the trial court’s judgment after a trial de novo is conducted pursuant to the familiar standards of Rule 84.18(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Ruth v. Director of Revenue, 143 S.W.3d 741, 744 (Mo.App.2004). “This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). The evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the trial court’s judgment, and we disregard all evidence and inferences to the contrary. Dixon v. Director of Revenue, 118 S.W.3d 302, 304 (Mo.App.2003). “If the evidence is uncon-troverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Middlemas v. Director of Revenue, 159 S.W.3d 515, 517 (Mo.App.2005). When a case is submitted solely on the Director’s records, however, “an appellate court must give deference to the trial court’s resolution of conflicting facts contained therein.” Dixon, 118 S.W.3d at 304; Jarrell v. Director of Revenue, 41 S.W.3d 42, 46 (Mo.App.2001).

II. Summary of the Facts

On March 25, 2004, Joplin police officer Randy Black (“Officer Black”) arrested Richardson for driving while intoxicated. Officer Black transported Richardson to the jail, where he was informed of his rights under Missouri’s implied consent law. See § 577.020. Some portions of Officer Black’s written report suggest that Richardson initially agreed to take a breath test, but changed his mind while the Intoxilyzer 5000 was being prepared to conduct the test. Other portions of the written report suggest that Richardson did not refuse to be tested.

Based on Richardson’s purported refusal to be tested, Officer Black gave Richardson a Missouri Department of Revenue form revoking his driving privileges for one year. Thereafter, Richardson filed a timely application for review of his revocation in circuit court. The case was scheduled to be heard on August 27, 2004. Richardson served Officer Black with a subpoena to testify on Richardson’s behalf.

At the hearing, the Director’s evidence consisted of Exhibit A, which was a certified copy of 15 pages of Department of Revenue records concerning Richardson’s license history. For purposes of this appeal, the only relevant document in this exhibit was the Alcohol Influence Report (“AIR”). Notably, Exhibit A did not include the test record printed out from the Intoxilyzer 5000. After the Director rested, Richardson presented no evidence. Although Officer Black had been served with a subpoena, he failed to appear and was not available to testify for either party.

Once the evidence was closed, Richardson argued the Director failed to make a prima facie case for revocation because Exhibit A contained conflicting information as to whether Richardson actually refused the test. Relying on Reece v. Director of Revenue, 61 S.W.3d 288 (Mo.App.2001), Richardson asked the court to set aside the revocation.

The trial court’s judgment contains a thorough and careful review of the conflicting information in the AIR. The court first considered the evidence supporting the Director’s contention that Richardson refused the test:

On the one hand, in the narrative section of the report, Officer Black wrote that [Richardson] first agreed to take the breath test and then changed his mind and refused the test. On page 3 of the Alcohol Influence Report form, Officer Black wrote “REFUSED” in the bottom right corner of the page, in the box provided for the officer to write [Richardson’s] blood alcohol concentration. On the same page, at the top, the officer checked the “NO” box following the question: “Having been informed of the reasons for requesting the test(s), will you take the test(s)?”

The court then considered the evidence supporting Richardson’s contention that he did not refuse the test:

On the other hand, Officer Black also completed the operational checklist and certification section on page 3 of the Alcohol Influence Report form. Under 19 CSR 25-30.011(5)(A), “An operational checklist, including the certification section, shall be completed with each breath test at the time of the test, by the individual performing the test.” The operational checklist provides as follows:
1. Subject observed for at least 15 minutes by Ptl. R. Black 8581. 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 power switch is ON and then press the START TEST button.
3. Enter the test record card.
4. Enter subject and officer information.
5. When display reads PLEASE BLOW, inseH mouthpiece and take the subject’s breath sample.
6. When test record is printed remove test record and attach printout to this report.
Officer Black placed slash marks through each of the boxes next to steps 1 through 6 indicating to the court that each step was completed. However, no printout was included in the Director’s records. The court concludes that by checking the box next to step 5, Officer Black appears to have taken Mr. Richardson’s breath sample. In that case, [Richardson] did not refuse the test.
In addition, Officer Black completed the certification of examination by operator section, which is found just below the operational checklist. The certification section provides that:
AS SET FORTH IN THE RULES PROMULGATED BY THE DEPARTMENT OF HEALTH RELATED TO THE DETERMINATION OF BLOOD ALCOHOL BY BREATH ANALYSIS, I CERTIFY BY COMPLETING THE BELOW THAT:
1. There was no deviation from the procedure approved by the department.
2. To the best of my knowledge the instrument was functioning properly.
3. I am authorized to operate the instrument.
4. No radio transmission occurred inside the room where and when this test was being conducted.
Officer Black’s name, permit number and other information are then written in the appropriate spaces.... Officer Black completed this certification, thereby certifying, among other things, that the instrument was functioning properly and that no, radio transmission occurred inside the room “when (Mr. Richardson’s) test was being conducted. ” If the test was conducted, [Richardson] did not refuse the test.

Finally, the trial court considered the fact that “Officer Black, although duly subpoenaed to appear and testify on behalf of [Richardson], failed to appear for trial.”

After considering the internal inconsistencies in the Director’s evidence, Officer Black’s failure to appear and the decision in Reece, the trial court concluded the Director did not meet “her burden of proving by a preponderance of the evidence that [Richardson] refused to submit to a breath test.”

In the Director’s sole point relied on, she contends the trial court erred because the evidence contained in Exhibit A “unequivocally established” aprima facie case for revocation which was not rebutted by Richardson.

III. Discussion and Decision

There were only three issues for the trial court to decide: (1) whether or not Richardson was arrested; (2) whether or not Officer Black had reasonable grounds to believe that Richardson was driving while in an intoxicated condition; and (3) whether or not Richardson refused the test. Section 577.041.4; Reece v. Director of Revenue, 61 S.W.3d 288, 290 (Mo.App.2001). The Director bears the burden of proof as to each issue. Id. “If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.” Section 577.041.5; Jarrell v. Director of Revenue, 41 S.W.3d 42, 43 (Mo.App.2001). The only disputed issue below was whether Richardson refused the test.

The trial court relied on Reece in concluding that Richardson did not refuse the breath test. The Director, however, argues that this Court’s decision in Dixon v. Director of Revenue, 118 S.W.3d 302 (Mo.App.2003), supports the Director’s position that she made a prima facie ease for revocation. To .resolve this point, we must examine the facts and holdings in Reece and Dixon to determine which is controlling here.

In Reece, the Director attempted to make a prima facie case using only Department of Revenue records. The trial court found those records contained a discrepancy relating to Reece’s alleged refusal to be tested. Reece, 61 S.W.3d at 290. In the officer’s narrative report and in other sections of the AIR, the officer wrote that Reece refused the breath test. Id. at 291. In another portion of the AIR, however, the officer filled out an operational checklist indicating “a breath test was performed.” Id. at 292. The officer also completed the certification section, but then he wrote “Refused” in the box for blood alcohol concentration. Id. Because of the internal inconsistencies in the AIR, the trial court concluded the Director failed to prove that Reece refused to submit to a breath test. The Eastern District’s cogent explanation of why it was required to affirm that factual finding bears repeating here:

This case demonstrates the difficulties that can arise when the case is submitted on the records and the evidence conflicts. “‘[CJaution should be exercised when a suspension case is submitted on the records alone ... submission of a case on the records alone may pose some risks-including the inability to explain discrepancies or to “rehabilitate witnesses”....’” Jarrell, 41 S.W.3d at 46 (citation omitted). The arresting officer wrote “refused” in two places on the Alcohol Influence Report and checked a box indicating Reece refused a breath test and wrote in the time. But the officer also completed the middle section of the report’s third page, which indicates a breath test was performed. In addition, by completing the report’s bottom section, also referred to as the certification section, the officer certified to, among other things, that no radio transmission occurred inside the room where and when the test was being conducted. The officer did write “Refused” in the box for the blood alcohol concentration, but it is not clear why this section would be completed if Reece refused to submit to a test. Given this court’s standard of review, we hold that the trial court’s judgment that Director did not prove that Reece refused the breath test is supported by substantial evidence and is not against the weight of the evidence.

Reece, 61 S.W.3d at 292 (footnote omitted).

Reece was recently distinguished by this Court in Dixon v. Director of Revenue, 118 S.W.3d 302 (Mo.App.2003), based on “one notable distinction” between the cases. Id. at 307. The similarities in Reece and Dixon involved the manner in which the AIR was completed in each case: “i.e., the refusals were marked in the appropriate places, the DataMaster checklist was completed, and the certification section was filled out with ‘Refused’ written in the space for blood alcohol concentration.” Dixon, 118 S.W.3d at 307. In addition, the officer in Dixon wrote in his narrative report that the driver refused to take the test. Id. The critical difference between the two cases, however, is that the Director’s records in Dixon included the DataMaster’s printed test result, which we described as an “evidence ticket.” Id. This evidence ticket “clearly indicated that Dixon ‘REFUSED’ to take the test.” Id. Thus, any possible inference that Dixon actually took the breath test — based on the fact that the DataMaster’s operational checklist had been completely filled out— was conclusively refuted by the machine’s evidence ticket:

It is reasonable to infer that this checklist was filled out in anticipation of a breath test. The DataMaster evidence ticket indicated that an “internal standard” was “verified” prior to Dixon’s refusal. Consequently, even if a breath test were performed or attempted, the evidence ticket conclusively showed the test was refused. The evidence ticket would indicate a refusal for reasons such as (1) a driver initially agrees, but refuses after the machine was started, or (2) the person failed to provide a sufficient sample by not blowing hard enough.

Id. at 308 n. 9. Therefore, we reversed the trial court’s judgment and remanded the ease to reinstate the revocation of Dixon’s driving privileges.

In contrast, the Director’s records in the case at bar did not include the test result printed out by the Intoxilyzer 5000 after Richardson’s arrest. Nevertheless, Director relies on Dixon to argue that the operational checklist and certification section, which both indicated that Officer Black took Richardson’s breath sample, were obviously filled out in anticipation of a breath test. While that might have been one permissible inference the trial court could have drawn from the internal inconsistencies in the AIR, the court was not bound to do so in the absence of the printed test result conclusively showing, as it did in Dixon, that the test was refused. Here, the trial court specifically noted “no printout was included in the Director’s records.” The court further noted “Officer Black, although duly subpoenaed to appear and testify on behalf of [Richardson], failed to appear for trial.” Without such additional evidence to explain the discrepancies in the AIR, Dixon simply does not support the Director’s argument. Therefore, Reece controls the disposition of this appeal.

Under our standard of review, we are required to defer to the trial court’s resolution of conflicting facts when a case is submitted solely on the Director’s records. Dixon, 118 S.W.3d at 304. The AIR in this case was internally inconsistent with regard to whether Richardson refused Officer Black’s request to take a breath test. By finding that Director failed to meet her burden of proving Richardson refused the breath test, the trial court resolved this factual dispute against the Director. The trial court’s finding is supported by substantial evidence and is not against the weight of the evidence. See Reece, 61 S.W.3d at 292. Director’s point is denied, and the judgment is affirmed.

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

      . All references to statutes are to RSMo (2000).

      . All references to rules are to the Missouri Court Rules (2005). Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . This device is one of several breath analyzer machines approved for use by the Missouri Department of Health. See 19 C.S.R. 25-30.050(1).

      . When the Intoxilyzer 5000 is used, the procedures that must be followed by the operator are set out in Form # 5. See 19 C.S.R. 25-30.060(1). Step 6 of the operational checklist for the Intoxilyzer 5000, as set out in Form # 5, states: "When test record is printed, remove test record and attach printout to this report."


author: KENNETH W. SHRUM, Judge.

text:
    Lawrence GARDNER, Claimant-Respondent, v. CONTRACT FREIGHTERS, INC., Employer-Appellant.
    No. 26760.
    Missouri Court of Appeals, Southern District, Division Two.
    June 27, 2005.
    Ronald G. Sparlin, Joplin, for appellant.
    Jon K. Lowe, Kansas City, for respondent.
   KENNETH W. SHRUM, Judge.

Lawrence D. Gardner (“Claimant”) was awarded workers’ compensation benefits after suffering a heart attack. His employer (“CFI”) urges reversal on three grounds. Its first argument for reversal alleges there was insufficient, substantial evidence to support any award favorable to Claimant. Because we find merit in CFI’s first allegation, we need not address its other claims. We reverse the award favorable to Claimant and remand the case with directions that Commission enter an award denying benefits.

FACTS

In 1999, when Claimant was approximately 45 years old, he began working for CFI as an “over-the-road” truck driver. Ordinarily, he pulled 53-foot vans and his only duty was to drive the truck. Once or twice each year, he had to secure his load by nailing boards beside pallets to keep the pallets from sliding on the wooden floor of the trailer.

On April 13, 2001, Claimant drove from Phoenix, Arizona, to El Paso, Texas, to pick up a load of coiled wire. He spent the night in El Paso. After sleeping there, he drove to the customer’s business to pick up his load at approximately 8:00 a.m. (April 14). Once the pallets (which contained 2500 pound coils of wire) were loaded, Claimant “blocked” the load, i.e., used a “claw hammer” and long nails to fasten two-by-fours to the trailer floor to secure the pallets. This was not Claimant’s “normal work.” Moreover, “[i]t was hot that morning,” approximately “eighty degrees.” The sun was shining, Claimant was working in the trailer, and there was no air flow. Claimant worked for an horn* and a half to two hours, during which time he became “dizzy” and began having “pretty intense” pains, like a “muscle ache.” This pain ran across his shoulders and into his chest and shoulders.

Believing he had the flu, Claimant went back to CFI’s terminal to rest and recuperate. During the remainder of April 14, Claimant’s symptoms continued. By the next morning, however, Claimant felt better and left El Paso with his load at approximately 8:30 to 9:00 a.m.

Unfortunately, Defendant’s symptoms soon returned; accordingly, he sought emergency treatment at a hospital in Van Horn, Texas, at approximately 10:10 a.m. Once there, he was diagnosed with a myocardial infarction. He was then transferred to an El Paso hospital where the heart attack diagnosis was confirmed via heart catherization and other procedures. The heart surgeon found Claimant had sustained a myocardial infarction and that his “right coronary artery was 100% occluded at its mid portion with some collateral filling from the left.” Claimant was treated with angioplasty and stent installation.

The record shows that before his heart attack, Claimant did not exercise, he was overweight (260 to 265 pounds for several years), he had high blood pressure history, and he had been a pack-a-day smoker since age eighteen. Other evidence before the Administrative Law Judge (“ALJ”) and Commission included medical records from treating hospitals, treating physicians and clinics, deposition testimony of Allen J. Parmet, M.D. (Claimant’s expert), and written reports of Doctors Lash and Estep (CFI’s experts).

Dr. Parmet testified that Claimant had “risk factors” for heart disease, such as “being a male and a smoker with mild, but controlled hypertension and a non-exerciser.” Dr. Parmet stated that those factors “undoubtedly created the initial coronary artery plaque formation in the right coronary artery.” He further testified Claimant’s heavy exertion on April 14, 2001, i.e., nailing the two-by-fours to the trailer floor, temperature conditions, dehydration of Claimant, and inadequate oxygenation of his blood (due to the high altitude at El Paso) were “significant precipitating factories], the last straw so to speak that ... finally ocelude[d] the artery that was clearly already partially blocked due to the other factors he had in his background.”

When asked what he meant by the phrase “last precipitating factor,” Dr. Par-met answered that he believed Claimant’s final arterial occlusion occurred because a clot formed, either because his blood vessel “spasm[ed] or because the blood suddenly [became] thicker and start[ed] to cling to the surface.” . Later, during cross-examination, the following occurred:

Q, [to Dr. Parmet] Would you agree that [Claimant’s] underlying coronary disease was the substantial factor in his myocardial infarction?
A. Yes.
Q. And I think as you said earlier you feel the event on April 14, and 15 precipitated the myocardial infarction?
“A. That’s correct.” (Emphasis supplied.)

CFI put in evidence reports written by their own medical experts, Drs. Estep and Lash. Dr. Estep unequivocally concluded that there was no relationship between the infarction and Claimant’s employment. He opined that Claimant’s work activities were not a substantial factor nor a triggering event for the heart attack. Dr. Lash’s report agreed with that opinion, conelud-

ing that the work activity was not a cause of the infarction nor was it a precipitating factor.

After reviewing the evidence presented, the ALJ entered an award favorable to CFI. Commission reversed the ALJ, noting that “Dr. Parmet testified that [Claimant’s] work [on April 14] was the significant precipitating factor of the infarct. The infarct was clearly job related.” (Emphasis supplied.) This appeal followed.

STANDARD OF REVIEW

Section 287.495.1 contains the applicable standard of review. Abel v. Mike Russell’s Standard Serv., 924 S.W.2d 502, 503 (Mo.banc 1996). Two of the four grounds listed in that case are pertinent here:

“1. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

§ 287.495.1.

In reviewing a Commission award, this court “must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23[1] (Mo.banc 2003). ‘Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Id. at 223[2]. We are bound by Commission’s findings of fact. Abel, 924 S.W.2d at 503.

DISCUSSION AND DECISION

In its first argument, CFI claims that Commission erred in making its award because the “competent, substantial, and credible evidence in the record, particularly the opinions of [CFI’s] medical experts, established that [Claimant’s] work activities for [CFI] were not a substantial factor in causing his myocardial infarction and, therefore, his myocardial infarction did not arise out of and in the course of his employment.” (Emphasis supplied.)

CFI’s claim of Commission error is grounded on language found in sections 287.020 and 287.120.1 of the Workers’ Compensation Act. Under the latter provision, employers are “liable, irrespective of negligence, to furnish workers’ compensation to employees for personal injuries from accidents ‘arising out of and in the course of employment.” Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853 (Mo.banc 1999). To recover under that section, the employee has the burden of proving, by a preponderance of the evidence, that his or her injury arose out of and in the course of employment. Jemison v. Superior Auto Mall, 932 S.W.2d 431, 434[3] (Mo.App.1996).

Regarding section 287.020, it was amended in 1993 in several respects. Among other things, the legislature established statutory tests for deciding if an injury had arisen out of and in the course of employment in order to justify an award of workers’ compensation benefits. This language is found in section 287.020.3(2) as follows:

“2. An injury shall be deemed to arise out of and in the course of the employment only if:
(a)It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and
(b) It can be seen to have followed as a natural incident of work; and
(c) It can be fairly traced to the employment as a proximate cause; and
(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.”

(Emphasis supplied.)

Additionally, the 1993 version of section 287.020 focuses on whether there is a com-pensable injury as opposed to whether an accident occurred. DeVille v. Hiland Dairy Co., 157 S.W.3d 284, 286-87 (Mo.App.2005). In doing so, section 287.020.2 provides that “an injury is compensable if it is clearly work related” and “[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.” (Emphasis supplied.) Although the phrase “substantial factor” is largely undefined, section 287.020.2 provides some guidance via this language: “An injury is not compensa-ble merely because work was a triggeHng or precipitating factor.” (Emphasis supplied.)

The impact of the section 287.020 changes was explained in Kasl, as follows:

“The 1993 amendment further requires that work must be a ‘substantial’ factor, not merely a ‘triggering or precipitating’ factor in causing the resulting medical condition or disability. The 1993 amendment thus overrules the holding of Wynn v. Navajo Freight Lines, Inc., [as follows]:
‘Even though [employee] was in poor health, had a preexisting heart condition, did not take good care of himself, and might have succumbed to a fatal heart attack while off work, possibly caused by different sorts of stress, the right to compensation should exist if the actual triggering causes are found, on the basis of substantial evidence, to meet the “job related” or “work related” test of Wolf-geher.’
654 S.W.2d 87, 89-90 (Mo.banc 1983) (emphasis supplied). The 1993 amendment also rejects statements in earlier cases, such as Bone v. Daniel Hamm Drayage Company: ‘The heavy work [employee] did while he had his heart and lung conditions was a precipitating cause of his death.’ 449 S.W.2d 169, 172 (Mo.1970) (emphasis supplied); see also Wilhite v. Hurd, 411 S.W.2d 72, 79 (Mo.1967); Hall v. Spot Martin, Inc., 304 S.W.2d 844, 852 (Mo.1957). Similar statements in the cases listed in the appendix should not be followed, for claims governed by ¡the 1993 amendment.”

984 S.W.2d at 853.

Here, CFI acknowledges that satisfying the substantial factor element of section 287.020 does not require proof that the employment was the sole or primary cause of the alleged compensable injury; that showing the work activity was a substantial factor in causing the injury is sufficient. Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App.1998); Cook v. St. Mary’s Hospital, 939 S.W.2d 934, 939 (Mo.App.1997). CFI also concedes that a work related accident or incident can be both a triggering factor and a substantial factor within the meaning of section 287.020. Cahall, 963 S.W.2d at 372.

CFI does point out, however, that Dr. Parmet’s deposition testimony and written report were very clear in identifying Claimant’s work activity at CFI as being a “precipitating factor” or “triggering factor.” Moreover, when Dr. Parmet was asked what he meant by the phrase “precipitating factor,” his answer, even when liberally read, did not provide proof that Claimant’s April 14 work activity was a “substantial factor” in causing his myocardial infarction.

In so stating, we do not ignore Dr. Parmet’s testimony that the “heavy exertion, the dehydration and hypoxia [sic] that [Claimant] encountered” on April 14, 2001, would be a “significant precipitating factor, the last straw so to speak that caused him to finally occlude the artery.” (Emphasis supplied.) As a general rule, “[t]he words a medical expert uses when testifying are ... important, not so much in and of themselves, but as a reflection of what impression such witness wishes to impart.” Mayfield v. Brown Shoe Co., 941 S.W.2d 31, 36 (Mo.App.1997). Arguably, the “significant precipitating factor” testimony and the “last straw” comment, standing alone, might be read as reflecting that Dr. Par-met wanted to impart the notion that Claimant’s April 14 work activities were a “substantial factor” in causing his heart attack, and thus provide evidence supportive of Commission’s ruling.

We rejéct that hypothesis, however, for the reason that Dr. Parmet’s “significant precipitating factor” testimony and the “last straw” comment did not stand alone. During cross-examination, he recognized there was a difference between a “triggering or precipitating” factor that might cause a medical cbndition or disability and work that was' a “substantial factor” in causing injury. He did this when he agreed that (1) Claimant’s “underlying coronary disease was the substantial factor in his myocardial infarction,” and (2) that Claimant’s work activity on April 14 and 15 “precipitated the myocardial infarction.” (Emphasis supplied.)

We conclude from a review of the whole record that Commission’s finding that Claimant’s April 14-15 work related incidents were substantial factors in causing his myocardial infarction was not supported by competent and substantial evidence and were contrary to the overwhelming weight of the evidence. Accordingly, we reverse Commission’s award of benefits and remand with directions that Commission enter an award denying benefits to Claimant.

PARRISH, P.J., and BARNEY, J., concur.

      . The term "CFI” is an abbreviation for Contract Freighters, Inc. Also, "Commission,” as used in this opinion, refers to the "Labor and Industrial Relations Commission of Missouri.”

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