author: TAYLOR, Judge.

text:
    Francisco GARCIA, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Heinrich Letkeman, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2004-CA-002271-MR, 2004-CA-002283-MR.
    Court of Appeals of Kentucky.
    Feb. 24, 2006.

      Jack W. Flynn, Darnell & Flynn, Frankfort, KY, for appellant Francisco Garcia.
    Rodney McDaniel, Frankfort, KY, for appellant Heinrich Letkeman.
    Gregory D. Stumbo, Attorney General of Kentucky, Matthew R. Krygiel, Robert E. Prather, Assistant Attorneys General of Kentucky, Frankfort, KY, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

TAYLOR, Judge.

Francisco Garcia brings Appeal No.2004-CA-002271-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. Heinrich Letkeman brings Appeal No.2004CA-002283-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. We reverse and remand Appeal No.2004-CA-002271-MR. We affirm Appeal No.2004-CA-002283MR.

On March 6, 2004, Garcia and his passenger, Letkeman, were traveling upon Interstate 64 in a 1993 Dodge Caravan. Kentucky State Trooper Jeremy Devasher approached the vehicle and noticed the vehicle quickly changed to the right lane. The trooper testified that he pulled his cruiser alongside the vehicle. Trooper De-vasher thought that the driver, Garcia, looked nervous because he avoided making eye contact with the trooper and kept a “death grip” on the steering wheel of the vehicle. The trooper then observed cracks in the windshield of Garcia’s vehicle and thought the cracks impaired Garcia’s forward vision. At this point, Trooper De-vasher stopped the vehicle for a traffic violation.

Trooper Devasher testified that he asked Garcia a series of questions in both English and Spanish; consequently, the trooper believed Garcia spoke English very well. Trooper Devasher testified that Garcia and Letkeman’s stories concerning their travel plans fell apart upon farther questioning. The trooper also noted that neither had any luggage for a purported trip to Virginia.

The trooper issued a citation for a cracked windshield pursuant to Kentucky-Revised Statutes (KRS) 189.110. After issuing the citation, the trooper informed Garcia the traffic stop was complete and he was free to leave. Trooper Devasher then asked Garcia for permission to search the vehicle. The trooper testified that Garcia nodded affirmatively and pointed to the vehicle. A search was commenced, and ten bricks of marijuana were seized from the vehicle.

Garcia and Letkeman were indicted by the Franklin County Grand Jury upon the offense of trafficking in marijuana over five pounds (KRS 218A.1421(4)). Thereafter, Garcia and Letkeman filed motions to suppress the evidence seized (marijuana) from the search of the vehicle. After an evidentiary hearing, the circuit court denied both motions to suppress.

Garcia and Letkeman entered conditional pleas of guilty to the offenses of trafficking in marijuana. Pursuant to the conditional pleas, Garcia and Letkeman preserved the issue of whether the circuit court properly denied their motions to suppress. See Ky. R.Crim. P. 8.09. On October 4, 2004, Garcia and Letkeman were each sentenced to seven years’ imprisonment with one year to serve and the remaining sentence probated for a period of five years. These appeals follow.

Appeal No.WOU-CA-OOmi-MR

Garcia contends the circuit court erroneously denied the motion to suppress evidence seized from his vehicle. Specifically, Garcia contends the stop of his vehicle based upon the cracked windshield was improper. Garcia argues that the cracked windshield was not a violation of KRS 189.110. Thus, he contends the initial stop of the vehicle was without reasonable suspicion of criminal activity and the circuit court erred by denying his motion to suppress evidence.

Our standard of review of a suppression determination is succinctly set forth in Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2000)(footnote omitted):

First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law.

We observe that resolution of this appeal involves issues of both fact and law.

It is well-established that the stopping of a vehicle and detaining of its occupants amounts to a seizure under the Fourth Amendment of the United States Constitution and under Section 10 of the Kentucky Constitution. It is equally axiomatic that a police officer may stop a motor vehicle if that officer possesses reasonable suspicion that criminal activity has occurred or is imminent. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The occurrence of a traffic violation is recognized as sufficient justification to warrant a stop of a motor vehicle.

The initial stop of Garcia’s vehicle was originally premised upon Trooper Devasher’s belief that the cracked windshield constituted a violation of KRS 189.110. This statute provides as follows:

(1) A windshield in a fixed and upright position, that is equipped with safety glazing as required by federal safety-glazing material standards, is required on every motor vehicle which is operated on the public highways, , roads, and streets, except on a motorcycle or implement of husbandry.
(2) A person shall not operate a motor vehicle on a public highway, road, or street with any sign, sunscreening material, product, or covering attached to, or located in or upon the windshield, except the following:
(a) A certificate or other paper required to be displayed by law;
(b) Sunscreening material along a strip at the top of the windshield, if the material is transparent and does not encroach upon the driver’s direct forward viewing area as defined in Federal Motor Vehicle Safety Standards No. 205 as the AS/1 portion of the windshield.
(3) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sun-screening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as expressly permitted by this section. A sunscreening material may be applied to the windows if, when tested on one-eighth (1/8) inch clear glass, the material has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the nonfilm side and a light transmittance of at least thirty-five percent (35%) in the visible light range.
(4)A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle any windows behind the driver are composed of, covered by, or treated with any sunscreening material, or other product or material which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its fight transmittance, except as specified below:
(a) Sunscreen material consisting of film which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible fight of not more than thirty-five percent (35%) as measured on the nonfilm side and a fight transmittance of at least eighteen percent (18%) in the visible fight range; however, sunscreen material which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible fight of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eight percent (8%) in the visible light range may be used on multipurpose passenger vehicles;
(b) Perforated sunscreening material which, when tested in conjunction with existing glazing or film material, has a total reflectance of visible light of not more than thirty-five percent (85%) and a light transmittance of no less than thirty percent (30%). For those products or materials having different levels of reflectance, the highest reflectance from the product or material will be measured by dividing the area into sixteen (16) equal sections and averaging the overall reflectance. The measured reflectance of any of those sections may not exceed fifty percent (50%).
(5) A person shall not operate a motor vehicle required to be registered in the Commonwealth, upon a public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides.
(6) Each installer or seller of sunscreen-ing material shall provide a pressure-sensitive, self-destructive, non-removable, vinyl-type film label to the purchaser stating that the .material complies with the provisions of KRS 189.010(20) to (23) and subsections (1) to (5) of this section. Each installer shall affix the required label to the inside left door jamb of the motor vehicle. In addition, the label shall state the trade name of the material and the installer’s or seller’s business name. Labeling is not required for factory glazing which complies with Federal Motor Vehicle Safety Standard No. 205.
(7) Every percentage measurement required by subsections (3) and (4) of this section is subject to a tolerance of plus or minus three percent (3%).
(8) A person shall not install window tinting materials on a vehicle that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section. Tinted material that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section shall be removed immediately.
(9) A person who applies sunscreening materials in violation of this section shall be guilty upon conviction of a Class B misdemeanor.
(10) Nothing in this section shall prevent the display of a representation of the American flag on the rear window of any motor vehicle, including any vehicle owned by a local or state government, provided that the representation does not exceed a size of five (5) inches by eight (8) inches and is placed in a lower corner of the rear window.
(11) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow or other moisture from the windshield. The device shall be so constructed as to be controlled by the operator of the vehicle.
(12) Nothing in this section shall be construed to prevent the use of any window which is composed of, covered by, or treated with any material or component in a manner approved by federal statute or regulation if the window was a component part of a vehicle at the time of the vehicle manufacture, or the replacement of any window by a covering which meets these requirements.

KRS 189.110.

A reading of KRS 189.110 reveals that it provides requirements for window sunscreening and tinting. It also sets forth mandatory safety glazing of glass and windshield wiper requirements. It, however, does not set forth any express or implied proscriptions against cracks in a vehicle’s windshield. Based upon the plain language of KRS 189.110, a cracked windshield simply does not constitute a violation of its provisions. As a cracked windshield is not a violation of KRS 189.110, we believe the Commonwealth cannot justify the stop of Garcia’s vehicle upon same.

Alternatively, the Commonwealth argues the traffic stop was lawful because the cracked windshield was a violation of KRS 189.020, which states as follows:

Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.

The interpretation of a statute is a matter of law for the court. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky.App.2004). When interpreting a statute, a word is to be afforded its ordinary meaning unless it has acquired a technical meaning. Id. Upon examination of KRS 189.020, we must initially decide whether a cracked windshield constitutes an “other nuisance” within its meaning. When interpreting the term “other nuisance” in KRS 189.020, we are guided by the rule of statutory interpretation called ejusdem generis:

[Wjhere, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950) (citations omitted). Applying the rule of ejusdem generis to KRS 189.020, the term “other nuisance” is preceded by the particular designation of “noise” and “smoke.” To effectuate legislative intent, we believe “other nuisance” should be interpreted as including only those nuisances of a similar kind as noise and smoke. Accordingly, we do not interpret the term “other nuisance” in KRS 189.020 as encompassing a cracked windshield.

KRS 189.020 also requires a vehicle to be equipped so as “to protect the rights of other traffic, and to promote the public safety.” A cracked windshield that unreasonably impairs the vision of a driver certainly increases the risk and likelihood of an accident. The increased risk would undoubtedly present a significant threat to public safety and would adversely affect the rights of other traffic. Therefore, we hold that a cracked windshield must unreasonably impair the vision of a vehicle’s driver to constitute a violation of KRS 189.020. We emphasize that a cracked windshield is a violation of KRS 189.020 only if it is of sufficient severity to unreasonably reduce the driver’s visibility.

In the case at hand, Trooper Devasher testified that he believed the cracked windshield impaired Garcia’s forward vision. The circuit court concluded:

Courts hold that stopping a vehicle for a traffic law violation is constitutionally permissible under the Terry test. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Commonwealth v. Fox, Ky., 48 S.W.8d 24 (2001). That is the situation here. Before stopping the Defendants’ vehicle, the officer observed two cracks in the vehicle’s windshield. The officer believed the cracks impaired the driver’s vision and violated KRS 189.110. The officer subsequently stopped the vehicle and issued Defendant Garcia a citation for this violation. The vehicle stop, therefore, did not contravene the Constitution.

In the record, there exists a photograph of Garcia’s vehicle, which provides a full view of the windshield. Upon examination of the photograph, the cracks do not appear to be of sufficient severity to unreasonably impair Garcia’s forward vision. We observe that mere hairline cracks of a vehicle’s windshield are not typically of sufficient severity to constitute a violation of KRS 189.020. Hence, we are of the opinion that the cracks in the windshield of Garcia’s vehicle were not of sufficient severity to constitute a violation of KRS 189.020.

We also reject the Commonwealth’s attempt to justify the stop as an investigatory stop based upon reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Commonwealth particularly argues:

Furthermore, given the training and experience of this officer, other indicia were present that suggested criminal activity might be afoot. The nervousness displayed by the driver, the erratic lane change upon observing that the officer was near, the failure to make eye contact, the “death grip” on the steering wheel, and the foreign license plate (knowing that the drug interdiction training indicated that illegal drugs typically travel east to west) led to further suspicion.

Commonwealth’s Brief at 12.

In Commonwealth v. Banks, 68 S.W.3d 347, 350-351 (Ky.2001), the Supreme Court emphasized:

[T]he test for a Terry stop ... is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot.... The totality of the circumstances must be evaluated to determine the probability of criminal conduct, rather than the certainty.

In the case sub judice, the articulated facts set forth by Trooper Devasher were Garcia’s nervousness, lane change, failure to make eye contact, “death grip” on the steering wheel, and out-of-state license plate. We believe these facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits. Simply put, such routine driving habits do not warrant a police stop under Terry. As such, we do not believe that Trooper Devasher possessed the requisite reasonable suspicion to justify an investigatory stop of Garcia’s vehicle.

In sum, we hold the initial stop of Garcia’s vehicle was improper and the circuit court erred by denying Garcia’s motion to suppress the marijuana subsequently seized from the vehicle.

We view Garcia’s remaining contentions as moot.

Appeal No. 200Í-CA-002283-MR

Letkeman argues that the circuit court improperly denied his motion to suppress the evidence seized from the vehicle. Specifically, Letkeman contends that a cracked windshield is not a violation of KRS 189.110; thus, the initial stop was invalid. Letkeman further maintains that Garcia did not voluntarily consent to the search of the vehicle.

It has been recognized that the protection of the Fourth Amendment against unreasonable search and seizure is a personal right and cannot be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)(citing Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). To have standing to contest a search and seizure, an individual must possess a legitimate expectation of privacy in the area searched or property seized. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. The United States Supreme Court has developed a two-step analysis for determining whether a legitimate expectation of privacy exists:

[WJhether the individual has exhibited a subjective expectation; and whether such subjective expectation, viewed objectively, is justifiable under the circumstances.

United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983) (citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

In the case at hand, we cannot say that Letkeman possessed a reasonable expectation of privacy in the vehicle. The record indicates that Letkeman was a passenger in the vehicle and did not assert an ownership or possessory interest in the vehicle. A mere passenger in a vehicle generally does not have the requisite expectation of privacy to raise the issue of the legality of the vehicle’s search. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Letkeman also claims ownership of the marijuana seized from the vehicle and believes that such ownership in the property seized confers standing. The ownership and possession of seized property is not dispositive upon the issue of expectation of privacy; rather, such are simply factors to be considered. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

In this case, the seized property was wrapped bricks of marijuana. These bricks were hidden in the vehicle’s rear storage compartments. Applying the two-part analysis for determining whether an expectation of privacy existed, we believe Letkeman satisfied the first part because it is uneontroverted he possessed a subjective expectation of privacy in the marijuana. However, the second part of the test requires that the subjective expectation of privacy be objectively reasonable under the circumstances.

The facts reveal that Letkeman was only a passenger in the vehicle and did not have control over its contents. Specifically, it appears that Letkeman did not possess the legal right to exclude third parties from exercising possession or control over the vehicle or its contents. Moreover, the marijuana bricks were not concealed by Letkeman in luggage or other baggage. Rather, the bricks were simply hidden in the vehicle’s rear storage compartments. Considering the unique circumstances of this case, we cannot say Letkeman possessed an objectively reasonable expectation of privacy in the seized marijuana.

In sum, we are of the opinion that Let-keman did not possess the requisite expectation of privacy to establish standing to contest the legality of the vehicle’s stop or of the marijuana’s seizure.

Letkeman also argues that his detention following the vehicle’s stop was unreasonably long and constituted a violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. Letkeman particularly maintains he was detained by Trooper Devasher for some thirty minutes while waiting for another trooper to arrive. Letkeman contends that Trooper Devasher lacked reasonable suspicion of criminal activity to warrant the thirty-minute detention and that the citation took only a few minutes to issue.

In Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), the Supreme Court recognized that the legality of a continued detention following a stop for a traffic violation is a question of reasonableness. It has been held:

Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public— for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent.

United States v. Burton, 334 F.3d 514, 518 (6th Cir.2003).

In the case sub judice, the record indicates that Trooper Devasher questioned Letkeman and Garcia, checked the vehicle’s registration and license plate, and cheeked Garcia’s out-of-state driver’s license. Upon the whole, we believe the continued detention of Letkeman for some thirty minutes after the initial traffic stop was reasonable.

Letkeman additionally maintains the statement he made to police following his arrest should be suppressed. Specifically, Letkeman alleges1 he did not voluntarily and knowingly waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Letke-man contends he was advised of his Miranda rights in English but that he “did not understand English sufficiently to make a valid waiver of these important rights.” Letkeman Brief at 19. Letke-man claims his primary language is Spanish.

In its order denying Letkeman’s motion to suppress, the circuit court found:

Detective Brennan testified that Letke-man spoke English to him, answered everything asked of him, and he and Letkeman could communicate with each other. (Comm. Br. at 13). Trooper De-vasher testified that Letkeman answered “yes” when Devasher asked him if he understood his Miranda rights. Devasher also testified that Letkeman knew English better than he originally led the trooper to believe. Though Let-keman testified that- he does not speak English and did not understand everything that Trooper Devasher said, the Court finds in favor of the Commonwealth based on the testimony by Brennan and Devasher.

Based upon the testimony of Detective Brennan and Trooper Devasher, we conclude the circuit court’s findings that Let-keman understood English and understood he was waiving his rights under Miranda were not clearly erroneous. See Stewart, 44 S.W.3d 376.

For the foregoing reasons, Appeal No.2004-CA-002271-MR is reversed and this cause remanded for proceedings not inconsistent with this opinion, and Appeal No.2004-CA-002283-MR is affirmed.

ALL CONCUR.

      . After submitting the appellate brief, counsel for Heinrich Letkeman, Rodney McDaniel, was suspended from the practice of law by order of the Kentucky Supreme Court. Having failed to secure substitute counsel, Letke-man now proceeds pro se in this appeal.

      . Letkeman also contends his statements to police following his arrest should be suppressed because of the wrongful stop and warrantless search of the vehicle and the prolonged detention following the traffic stop. As Letkeman lacks standing to contest the stop and seizure and his detention was reasonable, we summarily reject this contention.


source: Caselaw Access Project

author: MILLER, Senior Judge.

license: Public Domain

text:
    James Arthur TINSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2005-CA-000361-MR.
    Court of Appeals of Kentucky.
    Feb. 24, 2006.

      Donald H. Morehead, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Frankfort, KY, for appellee.

      Before BARBER and McANULTY, Judges; MILLER, Senior Judge.

      .Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute 21.580.

   OPINION

MILLER, Senior Judge.

James Arthur Tinsley appeals from a “Final Judgment and Order Imposing Sentence” of the Hardin Circuit Court entered upon a jury verdict.

Tinsley contends that the trial court erred by failing to appoint counsel to represent him in the trial proceedings. Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure Tinsley’s release following his indictment; did not apply the factors to determine Tinsley’s indigency as provided in KRS 31.120; and, because it is otherwise not determinable from the record whether Tinsley was in fact indigent, we reverse and remand.

On May 13, 2003, Tinsley was arrested upon a criminal complaint for the offense of first-degree trafficking in a controlled substance (cocaine). At his subsequent arraignment, the Hardin District Court appointed a public defender from the Department of Public Advocacy (DPA) to represent Tinsley. A plea of not guilty was entered. Noting that Tinsley had other pending drug trafficking indictments, the district court set his bond at $75,000.00 cash, or $150,000.00 secured, and assigned the case for a preliminary hearing on May 19, 2003. At the May 19, 2003, preliminary hearing, the district court reduced Tinsley’s bond to $5,000.00 cash. Tinsley subsequently posted a $5,000.00 cash bond to secure his release.

On June 10, 2003, the Hardin County Grand Jury returned a two-count indictment against Tinsley charging him with first-degree trafficking in a controlled substance, second offense, and possession of drug paraphernalia. Both offenses were alleged to have been committed on June 12, 2002.

Tinsley appeared for arraignment in circuit court on June 24, 2003. At that time he appeared with DPA counsel. The DPA counsel, however, informed the court that Tinsley had private counsel representing him on other cases, but that the DPA would accept responsibility for representing Tinsley “at this time.” Over Tinsley’s objection, the circuit court reset his bond at $50,000.00 secured. By order dated July 9, 2003, Tinsley’s $5,000.00 cash bond was ordered released and returned to him. On August 5, 2003, one Regina Thompson posted a $50,000.00 bail bond secured by a lien upon real estate owned by her. Tins-ley was thereupon released pending trial. The matter was set for pretrial conference to be held on September 2, 2003.

At the September 2, 2003, pretrial conference, the public defender informed the circuit court that appellant was out on a $50,000.00 property bond and no longer qualified for public defender services. The trial court inquired of Tinsley whether he was out on a property bond, and he responded affirmatively.. The trial court then advised Tinsley that the public defender had informed the court that he no longer qualified under state law for representation by the DPA because he had posted the bail bond, and that the Department was asking to be relieved as the appellant’s counsel. The matter was continued until October 22, 2003. The trial court instructed Tinsley that he needed to hire private counsel and be in court on that date. The trial court further informed Tinsley that the court was allowing the DPA to withdraw as counsel because he no longer met the guidelines to be represented by the agency.

On October 22, 2003, the trial court called Tinsley’s case. The trial court questioned Tinsley concerning whether he had retained counsel. Tinsley responded that he had not. The trial court questioned Tinsley concerning what efforts he had made to obtain counsel. Tinsley responded that he had not obtained counsel because he could not afford to do so. The Commonwealth then informed the trial court that Tinsley had private counsel in other cases. The trial court informed Tinsley that it had already been determined that he did not qualify for representation by the DPA. The trial court further informed him that he had been given a reasonable amount of time to obtain counsel, that he had the right to represent himself, and that he may do so. The court further informed Tinsley that it was unwise to represent himself, but that he did not qualify for appointment of a public defender and that one could not be appointed to represent him. The case was continued for trial on May 13, 2004.

On May 13, 2004, the case was called for trial. Tinsley appeared without counsel. The court informed Tinsley that it would be necessary for him to represent himself since he had not obtained an attorney. The court inquired of appellant whether he understood that; Tinsley responded, “Not really, Your Honor.” The court then once again inquired of appellant regarding whether he attempted to make arrangements to retain counsel. Tinsley responded that he had no money to do so.

The trial court informed Tinsley that his case was going to have to go to trial, that the case was two-years old, that appellant had plenty of advance notice regarding the trial date, that he was not qualified for a public defender, and that if he was not going to get an attorney, his only option was to represent himself. Tinsley responded that he did have money at one time, but that he had been required to pay child support in order to stay out of jail, and that, along with other events, resulted in a depletion of his money. Tinsley further informed the trial court that the “child support people” were going to indict him if he did not pay his child support. The court observed that the matter could not be postponed indefinitely. The court informed Tinsley that all of the witnesses were there for trial, including the “laboratory people” who had come from out of town. Tinsley responded that he needed to get an attorney in order to make motions to suppress and so forth. The court informed Tinsley that he could make motions himself and that the court was ready for jury selection to commence. The trial ensued.

As previously noted, Tinsley was convicted of first-degree possession of a controlled substance. The jury recommended a sentence of five-years imprisonment. Final judgment and sentence was subsequently entered consistent with the jury’s verdict. This appeal followed.

Tinsley contends that he was in fact indigent and the trial court erred by determining that he was ineligible for appointment of counsel; by failing to appoint counsel; and by compelling him to proceed to trial without counsel.

It is now elementary that an indigent criminal defendant is entitled to appointment of counsel in any proceeding in which he could be sentenced to a term of imprisonment. U.S. Const., Amendment 6; Ky. Const., § 11; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Jenkins v. Commonwealth, 491 S.W.2d 636, 638 (Ky.1973); Hill v. Commonwealth, 125 S.W.3d 221, 225 (Ky.2004). We note that this right was recognized in Kentucky well before Gideon. See Hart v. Commonwealth, 296 S.W.2d 212, 214 (Ky.1956) (It is the duty of a trial court to assign counsel to defend an accused when the accused makes such a request and a necessary showing in support thereof citing Moore v. Commonwealth, 298 Ky. 14, 181 S.W.2d 413 (1944) and Hamlin v. Commonwealth, 287 Ky. 22, 152 S.W.2d 297 (1941)).

“The exact point on the economic scale at which a defendant becomes indigent and therefore entitled to have counsel furnished is not subject to precise measurement but must be determined in the case of each individual in the light of all pertinent circumstances. The general inquiry must be directed to discover whether the defendant is able to provide for his own defense. In making that determination the court may consider such factors as income, property owned, outstanding obligations and the number and ages of his dependents. There may be other factors which have relevancy to the issue.” Jenkins v. Commonwealth, 491 S.W.2d 636, 638 (Ky.1973).

Relevant to the issue at hand are Kentucky Rules of Criminal Procedure (RCr) 3.05(2) and several statutes contained in KRS Chapter 31. As a preliminary matter, we set forth these authorities. RCr 3.05(2) provides as follows:

If the crime of which the defendant is charged is punishable by confinement and the defendant is financially unable to employ counsel, the judge shall appoint counsel to represent the defendant unless he or she elects to proceed without counsel. The defendant has the burden of first establishing his or her indi-gency before counsel may be appointed. If the defendant demonstrates that he or she is a needy person as defined in KRS 31.120 and the court so concludes, then the appointment shall continue for all future stages of the criminal proceeding, including appeal. Such appointment may be terminated by the court in which the proceeding is pending at any time upon a showing that defendant is able to employ counsel.

KRS 31.110 provides, in relevant part, as follows:

(1) A needy person who is being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime ... is entitled:
(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(b) To be provided with the necessary services and facilities of representation including investigation and other preparation. The courts in which the defendant is tried shall waive all costs.
(2) A needy person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:
(a) To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation or parole;
(b) To be represented in any appeal; and
(c) To be represented in any other post-conviction, or ... post-disposition proceeding that the attorney and the needy person considers appropriate. However, if the counsel appointed in such post-conviction, or ... post-disposition remedy, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense, there shall be no further right to be represented by counsel under the provisions of this chapter.
(3) A needy person’s right to a benefit under subsection (1) or (2) of this section is not affected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.

KRS 31.120 provides, in relevant part, as follows:

(1) The determination of whether a person covered by KRS 31.110 is a needy person shall be deferred no later than his first appearance in court.... Thereafter, the court concerned shall determine, with respect to each step in the proceedings, whether he is a needy person. However, nothing herein shall prevent appointment of counsel at the earliest necessary proceeding at which the person is entitled to counsel, upon declaration by the person that he is needy under the terms of this chapter. In that event, the person involved shall be required to make reimbursement for the representation involved if he later is determined not a needy person under the terms of this chapter.
(2) In determining whether a person is a needy person and in determining the extent of his ... inability to pay, the court concerned shall consider such factors as:
(a) Income;
(b) Source of income;
(c) Property owned;
(d) Number of motor vehicles owned and in working condition;
(e) Other assets;
(f) Outstanding obligations;
(g) The number and ages of his or her dependents;
(h) The poverty level income guidelines compiled and published by the United States Department of Labor;
(i) Complexity of the case;
(j) Amount a private attorney charges for similar services;
(k) Amount of time an attorney would reasonably spend on the ease; and
(l) Payment of money bail, other than a property bond of another, whether deposited by the person or another, to secure the person’s release from confinement on the present charge of which he or she stands accused or convicted; and
(m) Any other circumstances presented to the court relevant to financial status.
Release on bail, or any other method of release provided in KRS Chapter 431, shall not necessarily prevent him from being a needy person. In each case, the person ... subject to the penalties for perjury, shall certify by affidavit of indi-gency which shall be compiled by the pretrial release officer, as provided under KRS Chapter 431 and Supreme Court Rules or orders promulgated pursuant thereto, the material factors relating to his ability to pay in the form the Supreme Court prescribes. (Emphasis added.)

KRS 31.100(3) defines a needy person or indigent person as follows:

“Needy person” or “indigent person” means:
(a) A person eighteen (18) years of age or older or emancipated minor under the age of eighteen (18) who, at the time his need is determined, is unable to provide for the payment of an attorney and all other necessary expenses of representation;

This proceeding veered off-course at the September 2, 2003, pretrial conference when DPA counsel notified the trial court that the Department sought to withdraw from defending Tinsley for the reason that he no longer qualified for representation because he had been released upon the posting of a $50,000.00 property bond. The trial court agreed with the Department, stating that Tinsley no longer qualified for representation because he no longer met the guidelines to be represented by the agency. However, the plain language of KRS 31.120 contradicts that proposition. KRS 31.120(2)(i) provides that the posting of a property bond by another is not to be considered in determining if a defendant is needy, and KRS 31.120 further provides that “[r]elease on bail, or any other method of release provided in KRS Chapter 431, shall not necessarily prevent [the defendant] from being a needy person.” (Emphasis added.)

Apparently under the impression that the posting of the property bond settled the issue, the trial court failed to consider the factors set forth in KRS 31.120 relevant to a determination of whether Tinsley was indigent. As a result, the record is silent concerning whether Tinsley was, at the time of trial, indigent pursuant to the factors set forth in KRS 31.120. Perforce, we are unable to conduct a meaningful review on Tinsley’s claim of indigency and his entitlement to a court-appointed counsel.

It is clear, however, that Tinsley claimed that he had no funds to retain private counsel; that the trial court erroneously determined that he was not entitled to appointed counsel because a property bond had been posted; and the court failed to comply with the mandates of KRS 31.120 in determining indigency. As such, we are of the opinion Tinsley is entitled to a new trial.

Assuming, arguendo, that Tins-ley was in fact not indigent and could have retained private counsel, nevertheless, reversal would still be required. If Tinsley were' not indigent, then he, in effect, waived his right to counsel, thereby triggering the protections of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Kentucky, a trial court is under an affirmative duty to hold a Faretta hearing when an. accused attempts to make an absolute or limited waiver of the right to counsel. Hill v. Commonwealth, 125 S.W.3d 221, 226 (Ky.2004). The trial court has three Faretta duties. Id. First, the trial court must conduct a hearing in which the defendant testifies as to whether the waiver is voluntary, knowing, and intelligent. Id. Second, the trial court must warn the defendant in the hearing of the benefits relinquished and the perils arising from the waiver of counsel. Id. Finally, the trial court must make a finding on the record that the waiver is voluntary, knowing, and intelligent. Id. The failure to comply with these requirements constitutes “structural” error to which harmless error analysis is inapplicable. Id. at 228. The record is void of a Faretta-type hearing and the attendant duties.

The Commonwealth directs our attention to Greeley v. Commonwealth, 825 S.W.2d 617 (Ky.App.1992). In that case the defendant, an attorney, had been granted numerous continuances before trial. He had also been represented by a series of attorneys. On the second day of trial he asked for a continuance in order to have an attorney appointed for him. The court refused. A subsequent conviction was upheld with the court holding that the defendant had ample time to obtain counsel and that his failure to do so constituted a waiver. The court noted that the defendant was playing a “cat and mouse” game in order to delay trial in the matter. Moreover, the record clearly demonstrates that Greeley was not indigent having been possessed of “significant assets in this state in the form of common stock and natural gas.... ” Thus we do not believe that Greeley is dispositive.

In summary, while we are aware of the dilemma faced by trial courts upon the issues of indigency and the appointment of counsel, we offer the following observations: first, if a defendant raises the issue of indigency, a hearing must be held thereon for a determination in accordance with the requirements set forth in KRS Chapter 31, and the court must enter findings at the conclusion thereof. If the findings support indigency, counsel shall be appointed. Second, if the findings do not support indigency, and the defendant persists in not employing counsel, he shall be deemed to have waived counsel, whereupon he is entitled to the protections of Far-etta. Should the trial court fail in the foregoing, the trial is defective.

For the foregoing reasons the matter is reversed and remanded to the Hardin Circuit Court for additional proceedings consistent with this opinion.

ALL CONCUR.

      . KRS 218A.1412.

      . KRS 218A.500(2).

      . KRS Chapter 31 has been, described as "a comprehensive network of statutes enacted by the legislature in response to the dilemma created by both state and federal constitutional guarantees of effective representation for indigent defendants. The choice was clear: the state either must see that a defendant is provided counsel or it cannot proceed with a prosecution.” Pillersdorf v. Department of Public Advocacy, 890 S.W.2d 616, 618 (Ky.1994). (Citations omitted.)


author: MARY R. RUSSELL, Judge. MICHAEL A. WOLFF, Chief Justice,

text:
    RONNOCO COFFEE COMPANY, INC., Respondent, v. DIRECTOR OF REVENUE, Appellant. Rose Coffee Company, Inc., Respondent, v. Director of Revenue, Appellant. Ronnoco Coffee Company, Inc., Respondent, v. Director of Revenue, Appellant.
    Nos. SC 86724, SC 86725, SC 86912.
    Supreme Court of Missouri, En Banc.
    Feb. 14, 2006.
    Jeremiah W. (Jay) Nixon, Atty. General, Alana M. Barragan-Scott, Deputy Solicitor, Jefferson City, for appellant.
    Edward F. Downey, Jefferson City, B. Derek Rose, St. Louis, for respondent.
   MARY R. RUSSELL, Judge.

The Director of Revenue seeks review of the Administrative Hearing Commission’s (“AHC”) decisions finding that Ronnoco Coffee Company and Rose Coffee Company (collectively “Coffee Companies”) were exempt from payment of sales and use tax on their purchases of certain coffee equipment. The AHC’s decisions are affirmed.

I. Jurisdiction and Standard of Review

This Court has jurisdiction to review the AHC’s decisions pursuant to Mo. Const, art. V, section 3, as the cases involve construction of the state revenue laws. This Court reviews the AHC’s interpretation of revenue law de novo. Six Flags Theme Parks, Inc. v. Dir. of Revenue, 102 S.W.3d 526, 527 (Mo. banc 2003). The AHC’s factual determinations are upheld if the law supports them and, after reviewing the whole record, there is substantial evidence to support them. Id.

Exemptions for taxation are strictly construed against the taxpayer and, as such, it is the burden of the taxpayer claiming the exemption to show that it fits the statutory language exactly. Id. at 528. It is the Director’s burden to show a tax liability. Id. at 529.

II. Background

Coffee Companies sell whole and ground coffee beans, tea, instant coffee products, and condiments to businesses that buy the items for resale or for their customers’ use. During the tax periods at issue, Coffee Companies purchased coffee grinding and brewing equipment and parts (collectively “coffee equipment”) from vendors both in and out of Missouri. Coffee Companies paid use tax on their purchases of the coffee equipment from out of Missouri.

They sold the coffee equipment outright to some of their customers. If a customer did not want to buy the coffee equipment outright, however, Coffee Companies executed a “loan agreement” with the customer.

Ronnoco’s “loan agreement” provided that its customer could use its coffee equipment for “consideration of $1.00” and waiver of all liability for personal injury and property damage. The customer, however, could only use the coffee equipment for making, storing, and distributing Ronnoco’s coffee products and only for so long as the customer purchased Ronnoco’s coffee products. The customer could not assign the “loan agreement,” and could not encumber, sell, or otherwise dispose of the coffee equipment. The equipment remained Ronnoco’s property and Ronnoco could remove it at any time. The “loan agreement” stated that the customer was responsible for maintenance and repair of the coffee equipment. Despite this language, however, Coffee Companies, not customers, purchased all replacement parts and performed all maintenance for the coffee equipment.

Coffee Companies did not charge a separate tax on the customers’ use of the coffee equipment under the “loan agreement,” but instead charged customers more for purchases of coffee beans and tea. The more the coffee equipment cost Coffee Companies, the more their “loan agreement” customers paid for coffee beans and tea.

III. Procedural History

Because this opinion jointly addresses three cases, it is helpful to outline the procedural history of each case separately.

The Director’s first appeal against Ron-noco raises the issue of whether Ronnoco is entitled to a refund of $124,799.85, plus interest, for use tax it paid, from the fourth quarter 1998 through the third quarter 2002, on certain coffee equipment used by its customers. Ronnoco argued it qualified for a refund because it resold the coffee equipment to customers, meriting an exemption under section 144.615(6), RSMo 2000. The Director denied Ronno-co’s refund claim, and Ronnoco sought review of the Director’s decision from the AHC. The AHC granted Ronnoco’s refund request, finding that the resale exemption under section 144.615(6) applied because Ronnoco resold the coffee equipment at issue. The Director now seeks review of the AHC’s decision granting Ronnoco a refund.

Similarly, the Director’s appeal against Rose raises the issue of whether Rose is entitled to a refund of $135,803.59, plus interest, for use tax it paid, from the fourth quarter 1998 through the third quarter 2002, on certain coffee equipment used by its customers. Like Ronnoco, Rose sought a refund under section 144.615(6), which the Director denied. Rose sought review by the AHC, which concluded that Rose was entitled to a refund. The Director now seeks review of the AHC’s decision granting Rose a refund.

The Director’s other appeal against Ronnoco differs in that no refund was sought in this case. Instead, this case began when the Director audited Ronnoco and assessed sales tax and use tax on its purchases of coffee equipment and related items. Ronnoco disputed the assessments, generally on the basis that the purchases were exempt purchases for resale. The AHC found in Ronnoco’s favor, and the Director asks this Court to order Ronnoco to pay the taxes assessed.

In finding in Coffee Companies’ favor in each of these cases, the AHC rejected the Director’s argument that Coffee Companies’ owed tax on the equipment at issue under section 144.020.1(8), which imposes tax on the rental or lease of tangible personal property. The AHC found that Coffee Companies’ “loans” of coffee equipment to their customers were not lease transactions subject to section 144.020.1(8), but were instead tax exempt resales.

IV. Issue Presented

The issue presented in each of these three cases is the same: Did the AHC properly conclude that Coffee Companies’ purchases of coffee equipment, which it loans to customers who use Coffee Companies’ products, are exempt from use and sales tax?

V. Does an exemption exist?

Section 144.610 imposes a use tax on Coffee Companies’ storage, use, or consumption within Missouri of any tangible personal property. The sale of property in the regular course of business, however, is expressly excluded from the definition of use and, therefore, from the use tax levy. Section 144.605(13). For purposes of the use tax, section 144.605(7) defines a “sale” as:

any transfer, barter or exchange of the title or ownership of tangible personal property, or the right to use, store or consume the same, for a consideration paid or to be paid, and any transaction whether called leases, rentals, bailments, loans, conditional sales or otherwise, and notwithstanding that the title or possession of the property or both is retained for security.

“Tangible personal property held ... solely for resale in the regular course of business” is expressly exempt from use tax. Section 144.615(6) (emphasis added). In determining whether there is a resale such that the resale exemption of section 144.615(6) applies, three elements must be met: (1) a transfer, barter, or exchange; (2) of the title or ownership of tangible personal property, or the right to use, store, or consume the same; (3) for consideration paid or to be paid. Aladdin’s Castle, Inc. v. Dir. of Revenue, 916 S.W.2d 196, 198 (Mo. banc 1996).

Coffee Companies’ costs for the coffee equipment that they provided to “loan agreement” customers was considered when setting the prices those customers were charged for coffee and tea products. The more the equipment cost Coffee Companies, the more Coffee Companies charged customers using that equipment for coffee and tea. The elements required for a resale were met in Coffee Companies’ “loan agreement” transactions in that the equipment was transferred to the customer, who had the right to use that equipment, for the consideration of (1) continued purchase of Coffee Companies’ products and (2) payment of an increased cost of those products based on the cost of the equipment used.

This Court has repeatedly held that where a business does not charge separately for goods transferred to customers but, rather, factors the cost of the goods into the price of all items sold to the customers, such goods are exempt from the use tax. Aladdin’s Castle, 916 S.W.2d at 197 (prizes at arcade were exempt from use tax becausé were resold in that the cost of prizes was included in price charged for tokens); House of Lloyd v. Dir. of Revenue, 884 S.W.2d 271, 275 (Mo. banc 1994) (packing material was exempt from use tax where it was purchased solely for resale, despite fact that marketer received some incidental benefit from packing material); Sipco, Inc. v. Dir. of Revenue, 875 S.W.2d 539, 542 (Mo. banc 1994) (dry ice used to preserve pork in shipments to customers was exempt from use tax as it was resold in that the value of the dry ice was factored directly or indirectly into the total consideration paid for the pork); King v. Nat’l Super Mkts., Inc., 653 S.W.2d 220, 222 (Mo. banc 1983) (grocery store resold bags to its customers because cost of bags was factored in to cost of groceries), abrogated by Sipco, 875 S.W.2d at 542 (King implied that the holder of goods must show a calculated cost specifically factored into the price for resale to claim the resale exemption, but Sipco held this specific calculation was no longer necessary).

Previous cases have applied the resale exemption in the context of the loan or rental of an item to a customer, rather than an outright transfer of title or ownership.

In Weather Guard, Inc. v. Director of Revenue, 746 S.W.2d 657 (Mo.App.1988), the court relied on previous decisions of this Court in holding that an insulation wholesaler qualified for the resale exemption on its purchases of insulation installation machines that were used to promote the sale of its insulation to retailers. The wholesaler loaned the machines to retailers who purchased insulation so that they could sell the insulation to retail customers in a “do-it-yourself’ program. Id. at 657. At all times, the machine remained the property of the wholesaler, but was on loan to the retailer for use by retail customers. Id. In accordance with an agreement entered between the wholesaler and retailer, the wholesaler would repair the machine at the retailer’s expense, though the retailer was credited for repairs in the cost of insulation. Id. According to the agreement, the retailer would return the machine to the wholesaler upon request. Id. In exchange for this arrangement, the retailer agreed to purchase and use exclusively wholesaler’s insulation. Id. at 658.

The Weather Guard court determined that the wholesaler was entitled to the use tax resale exemption under section 144.615(6) because the definition of “sale” in section 144.605(5), RSMo 1986, qualified a rental as a sale. Id. The court found that because the cost of the machines was factored in to the price for the insulation sold in the “do-it-yourself’ program, the consideration element required for the resale exemption was met. Id. It noted that “because the customers paid sales tax on the increased cost of the insulation, there was no loss of tax revenue to the State” and “to impose a use tax would amount to double taxation.” Id. (citing Mgmt. Servs., Inc. v. Spradling, 547 S.W.2d 466, 468 (Mo. banc 1977) (primary purpose of section 144.610 is to supplement and protect the sales tax on out-of-state purchases)).

This case is similar to Weather Guard. As with the insulation machines in Weather Guard, Coffee Companies’ coffee equipment is loaned to customers, but remains Coffee Companies’ property. Also, like in Weather Guard, there is no stated extra charge for customers’ use of the equipment, but consideration is given insofar as the customers’ cost for the products used with the equipment reflects the cost of the use of the equipment itself. Like the wholesaler in Weather Guard, Coffee Companies are entitled to the use tax resale exemption under section 144.615(6).

Coffee Companies are also entitled to an exemption from sales tax on the purchases at issue because they are for resale. In Brambles Industries v. Director of Revenue, 981 S.W.2d 568 (Mo. banc 1998), this Court determined that a lessor of shipping pallets was entitled to a sales tax refund for taxes it had paid on leases of pallets. The lessor had remitted sales tax on the leases of the pallets under section 144.020.1(8). Brambles, 981 S.W.2d at 569. The lessor, however, sought a refund of the taxes, arguing that the lease proceeds were excludable from sales tax because if the pallets were sold outright under identical circumstances, they would be excluded from sales tax as purchases for resale. Id. This Court found that to the extent that a lease would be a sale for resale if an outright sale had been made, section 144.010(3), defining “gross receipts,” requires that the proceeds from such a lease be excluded from gross receipts and, therefore, not considered in determining sales tax. Id. at 570. In Brambles, this Court declared that the “right to use” element of resale was satisfied regardless of whether the customers were obligated to return the pallets, and the consideration element was satisfied by evidence that customers paid the same price regardless of whether they rented or purchased the pallets. Id. at 571.

Similarly, in this case, the fact that Coffee Companies’ customers are required to return the equipment if the “loan agreement” is terminated does not defeat the fact that customers give consideration for the right to use the equipment under the terms of the agreement. Like the lessor’s transactions in Brambles, Coffee Companies’ transactions meet the definition of resale and are, therefore, exempt from sales tax.

VI. Conclusion

For the foregoing reasons, the AHC’s decisions in favor of Coffee Companies are affirmed.

PRICE, TEITELMAN, LIMBAUGH and WHITE, JJ., concur; WOLFF, C.J., dissents in separate opinion filed; STITH, J., concurs in opinion of WOLFF, C.J.

MICHAEL A. WOLFF, Chief Justice,

dissenting.

I would reverse the decision of the Administrative Hearing Commission and hold that purchases of equipment by the coffee companies are subject to the use and sales tax. The use of the equipment in this instance constituted a lease; therefore, the resale exemption does not apply.

The AHC determined that the transactions between the coffee companies and their customers were loans, not leases, and that section 144.020.1(8) did not apply because the coffee companies “did not have a stated charge for [their] customers’ use of the equipment.” That determination was wrong on both counts.

“Lease” is not defined in the tax statutes, but it is defined in Missouri’s Uniform Commercial Code as “a transfer of the right to possession and use of goods for a term in return for consideration ... ”. Section 400.2A-103(l)(j), RSMo Supp. 2005. Although this definition is found in the commercial code, when the legislature enacts a statute using terms that are defined elsewhere in Missouri statutes, the legislature is presumed to have knowledge of those other definitions. Citizens Elec. Corp. v. Director of Dept. of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989). This definition is substantially the same as the dictionary definition: “a contract by which one conveys [property] for life [or] for a term ... usually for a specified rent or compensation.” Webster’s Third New International Dictionary (1993). Words that are not defined in a statute are given their ordinary meaning according to the dictionary. Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993).

Whichever definition of “lease” is used, it is clearly satisfied by the contracts here. The contracts provide that the coffee companies retain ownership of the equipment and that the customer has the right to possess and use the equipment, but only for the purposes set by the coffee companies. The term is that time period during which the customer continues to purchase coffee and tea from the coffee companies. The consideration is the additional money paid by the customer in order to use the equipment.

The AHC’s determination that these arrangements are not leases because there is no “stated charge” is contradicted by the coffee companies’ admission that the cost of the equipment is “factored into” the cost of the coffee they sell their customers. The coffee companies add a set amount to the cost of the contract to cover the cost of the equipment used by the customer. As a result, purchase of coffee alone costs less than purchase of coffee and lease of equipment to use with the coffee, and the loan of a more expensive machine costs more than the loan of a less expensive machine. While not separated out for payment, the agreement clearly includes a stated charge for the lease of the equipment used to make or grind the coffee — that charge is the difference between the cost of purchase of the coffee alone and purchase of the coffee plus the lease of the machines.

The transactions satisfy the definition of “lease.” Leases of equipment are subject to tax under section 144.020.1(8), RSMo Supp.2005, which states:

1. A tax is hereby levied and imposed upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state ... as follows:
(8) A tax equivalent to four percent of the amount paid or charged for rental or lease of tangible personal property, provided that if the lessor or renter of any tangible personal property had previously purchased the property under the conditions of “sale at retail” ... or leased or rented the property and the tax was paid at the time of purchase, lease, or rental, the lessor, sublessor, renter, or subrenter shall not apply or collect the tax on the subsequent lease, sublease, rental or subrental receipts from that property.

The issue is made more complex by the language of section 144.605(7), which includes “leases” in the definition of “sale,” and section 144.615(6), RSMo Supp.2005, which exempts property held “solely for resale” from taxation. A “resale” requires three elements: (1) a transfer, barter, or exchange; (2) of title to or the right to use tangible personal property; (3) for consideration. Aladdin’s Castle, Inc. v. Director of Revenue, 916 S.W.2d 196, 198 (Mo. banc 1996). Read in isolation, this would suggest that a lease should not be taxed if it is considered a “resale.”

The majority opinion does not address the inherent contradiction between the legislature’s adoption of a specific provision taxing leases, section 144.020.1(8), and its adoption of a definition of “sale” that can include leases. Section 144.605(7). But, all statutory provisions are to be given some meaning, and it is assumed that the legislature would not enact a meaningless statute. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). Further, laws are to be interpreted in pan materia in order to determine their meaning. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). Under this doctrine, statutes involving related subject matter are construed together as though constituting one consistent act, even if adopted at different times. Id.

Since the provision taxing leases must mean something, the rules of statutory construction serve as a guide to its meaning. The primary rule of statutory construction is to give effect to the intent of the legislature. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998). Where general terms in one part of a statute are inconsistent with specific terms in another part, the specific terms are controlling, “unless the statute as a whole clearly shows the contrary intention.” Terminal R.R. Ass’n of St. Louis v. City of Brentwood, 360 Mo. 777, 230 S.W.2d 768, 769 (1950).

Prior cases indicate the legislative intent in adding the lease provision to the statute. In International Bus. Mach. Corp. v. State Tax Comm’n, 362 S.W.2d 635 (Mo.1962), the State argued that the lease of equipment constituted a transfer of ownership and was a “sale at retail.” This Court disagreed and held that leases were not included in that term: “had the legislature desired or intended to impose a sales tax on any and all lease transactions it would have been a very simple matter to plainly manifest that purpose by express provision in the act.” Id. at 639. That decision was followed in Federhofer, Inc. v. Morris, 364 S.W.2d 524, 527 (Mo.1963), where the Court again held that a lease was not taxable under the “sale at retail” provision of section 144.020, RSMo 1959.

In 1963, the legislature accepted the invitation of International Bus. Mach, and added section 144.020.1(8), which imposed a tax on “the amount paid or charged for rental or lease of tangible personal property.” This Court subsequently held that this provision required a general tax to be imposed on all leases. International Bus. Mach. Corp. v. David, 408 S.W.2d 833, 837 (Mo. banc 1966) overruled on other grounds by Southwestern Bell Yellow Pages, Inc. v. Director of Revenue, 94 S.W.3d 388 (Mo. banc 2002).

Following the rules of statutory interpretation, the legislature’s intent is first ascertained. It appears that the purpose of the 1963 amendment was to tax leases of tangible personal property, such as the coffee equipment at issue in this case. The lease provision is more specific, when applied to this case, than is the “resale” provision; this also weighs in favor of finding these transactions to be taxable as leases. Finally, the resale provision is an exemption, which must be construed strictly against the taxpayer. Branson Properties USA, L.P. v. Dir. of Revenue, 110 S.W.3d 824, 825 (Mo. banc 2003). Since every provision of the statute must have a meaning, the proper interpretation of the lease provision in section 144.020.1(8) is that true leases are meant to be taxed. This is consistent with the principles of statutory construction, with the legislative history relating to the addition of the lease provision to the statute, and with the principle that exemptions are to be construed against the taxpayer.

This position is consistent with prior cases where leases were found to be taxable. This is not inconsistent with our prior “factoring in” cases relied on by the coffee companies. Nearly all of those cases dealt with whether a lease tax should be imposed where an item was given to the customer to use and keep. See, e.g., Kansas City Power and Light Co. v. Director of Revenue, 83 S.W.3d 548 (Mo. banc 2002) (electricity sold to hotel guests); Sipco, Inc. v. Director of Revenue, 875 S.W.2d 539 (Mo. banc 1994) (dry ice used in packaging meat shipments). These cases are factually distinguishable, in that they do not involve true leases, for the item is not being returned and no separate charge is made.

By contrast, here, the coffee equipment is being returned, and the extra cost for it is separately determined, and if it is not used, then the charge for it is not included in the contract price. Here, unlike in the factoring in cases, the equipment is truly being leased.

The two lease cases relied on by the coffee companies are Weather Guard, Inc. v. Director of Revenue, 746 S.W.2d 657 (Mo.App.1988), and Brambles Industries, Inc. v. Director of Revenue, 981 S.W.2d 568 (Mo. banc 1998). Weather Guard provided insulation and machines to retailers. The machines allowed consumers to install the insulation themselves. The retailers sold the insulation along with a license for use of the machine. The cost of renting the machine was included in the insulation purchase. The retailers signed agreements with Weather Guard that were similar to the agreements in this case. Weather Guard maintained ownership of the machines, and the retailers agreed to sell only Weather Guard insulation. The issue in the case was whether the machines were subject to taxation as leases or exempt as resales. The court of appeals interpreted the resale provision as applying to the machines; thus, their rental to the retailers was not subject to tax. Id. at 658. This Court is the only one that can construe the state revenue laws. Mo. Const, art. V, § 3. The court of appeals can merely apply settled law. In Weather Guard, the court of appeals went beyond prior case law in construing the statute to apply to that situation. It had no authority to do so, and that case should not be followed here.

The other case supporting the coffee companies’ position, Brambles, fails to acknowledge the existence of section 144.615(6), much less resolve the conflict between it and section 144.020.1(8). Thus, it too is not helpful. To the extent that Weather Guard and Brambles can be read to address the situation presented by this case, however, they should not be followed.

This case and many other recent cases serve as a reminder of the piecemeal condition of the state’s sales tax law. The law was created decades before the creation of the modern economy of goods and services, marketed in ever new and interesting ways. The law has been riddled with exceptions and exemptions over the years. Its holes have occasionally been patched, as with the addition of leases in 1963, as discussed above. What is left is a law that is incoherent, dysfunctional, and not particularly helped by this Court’s efforts at interpretation over the years.

I respectfully dissent from today’s interpretation.

      . Ronnoco sells to grocery stores, restaurants, hotels, and similar businesses that buy the items for resale or use by their customers. Rose sells to convenience stores, businesses like law and accounting firms, and "resellers that resell to these businesses.”

      . For simplicity, this opinion refers to all of Coffee Companies' purchases at issue — including equipment, parts, display items, and storage items — collectively as "coffee equipment” or simply “equipment.”

      . Rose’s "loan agreement” was not significantly different, differing only in that it did not provide a $1.00 consideration provision. The evidence showed, however, that despite Ronnoco’s “loan agreement” language, it never collected the $1.00 consideration from its customers.

      .Coffee Companies presented evidence that once customers stopped buying their products, they could no longer use the coffee equipment under the "loan agreement," but could buy the equipment outright. They did not provide information, however, on whether such sales took place during the tax periods at issue.

      . Section 144.615 states in relevant part: "There are specifically exempted from the taxes levied in sections 144.600 to 144.745:.... (6) Tangible personal property held by processors, retailers, importers, manufacturers, wholesalers, or jobbers solely for resale in the regular course of businessf.]” (emphasis added)

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

      . The audit began in early 2001 and covered January 1998 through December 2000 for use tax and March 1998 through February 2001 tor sales tax. The Director assessed $17,407.72 sales tax, plus interest, and $17,161.36 use tax, plus interest.

      .These items included display items like fabric canopies, storage bins, and signs. There was no evidence that customers ever purchased display items from Ronnoco. Instead, if they ceased buying Ronnoco products, they then could purchase the display items or return them. The cost of the display items was factored into the price that customers paid for coffee beans and tea.

      . Weather Guard was originally filed with this Court, but this Court transferred the case to the Court of Appeals, Eastern District. 746 S.W.2d at 657.

      . This definition is now in section 144.605(7).

      . By this conclusion, the Court respectfully disagrees with the dissent’s contention that section 144.020.1(8) must control these cases because it specifically imposes a tax on leases and the facts here conform to the definition of a lease. This position requires this Court to ignore precedent applying the resale exemption in cases with similar fact patterns. These past “factoring in” cases recognize that "leases” are included in the definition of "sale” under section 144.605(7). Since these "factoring in” cases, the legislature has not acted to remove "leases” from the definition of "sale.” This Court should not ignore these past cases and the language of section 144.605(7). Adherence to the doctrine of stare decisis is helpful in a case such as this because the doctrine offers stability and predictability for taxpayers. Stability in the law by following the “factoring in” analysis is preferable to avoid confusion about the application of tax statutes that are, according to the dissent, "incoherent” and "dysfunctional.”

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


author: PER CURIAM.

text:
    REPRODUCTIVE HEALTH SERVICES OF PLANNED PARENTHOOD OF The ST. LOUIS REGION, INC., et al., Appellants, v. Jeremiah W. NIXON, et al., Respondents.
    No. SC 86768.
    Supreme Court of Missouri, En Banc.
    Feb. 28, 2006.

      Mimi Liu, Roger K. Evans, New York, NY, Arthur A. Benson, II, Jamie K. Lans-ford, Kansas City, MO, for Appellants.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Victorine R. Mahon, Asst. Atty. Gen., Jefferson City, R. Scott Ingram, Office of St. Louis Circuit Atty., St. Louis, John L. Patton, Boone County Counselor, Columbia, MO, for Respondents.
   PER CURIAM.

I.Introduction

Section 188.039, RSMo Supp.2003, creates an informed consent requirement including a 24-hour waiting period before elective abortions may be performed in Missouri. Planned Parenthood argues that the act is unconstitutional for vagueness. Planned Parenthood also argues that the 24-hour waiting provision violates rights of liberty and privacy under the Missouri Constitution. All of Planned Parenthood’s federal claims have been reserved for adjudication in federal court. This case only concerns Planned Parenthood’s facial claims under the Missouri Constitution.

Planned Parenthood filed this action in the Circuit Court of Boone County against the Missouri Attorney General’s Office, the Office of the Circuit Attorney for the City of St. Louis, and the Boone County Counselor. The trial court granted summary judgment finding that there was no constitutional violation. The trial court’s order stated, in relevant part: “The terms of section 188.039, RSMo Cum.Supp.2003, are not impermissibly vague; ... A knowing violation of section 188.039 RSMo is required to subject an individual to criminal prosecution and/or license revocation pursuant to sections 188.075 and 188.065 RSMo; [and] ... [t]he twenty-four hour waiting period to obtain an abortion does not violate the Missouri or United States Constitution.”

This Court has exclusive appellate jurisdiction over this case. Mo. Const, art. V, sec. 3. The judgment of the circuit court is affirmed.

II. The Statute

Section 188.039 states:

1. For purposes of this section, “medical emergency” means a condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.
2. Except in the case of medical emergency, no person shall perform or induce an abortion unless at least twenty-four hours prior thereto a treating physician has conferred with the patient and discussed with her the indicators and contraindieators, and risk factors including any physical, psychological, or situational factors for the proposed procedure and the use of medications, including but not limited to mifepristone, in light of her medical history and medical condition. For an abortion performed or an abortion induced by a drug or drugs, such conference shall take place at least twenty-four hours prior to the writing or communication of the first prescription for such drug or drugs in connection with inducing an abortion. Only one such conference shall be required for each abortion.
3. The patient shall be evaluated by a treating physician during the conference for indicators and contraindieators, risk factors including any physical, psychological, or situational factors which would predispose the patient to or increase the risk of experiencing one or more adverse physical, emotional, or other health reactions to the proposed procedure or drug or drugs in either the short or long term as compared with women who do not possess such risk factors.
4. At the end of the conference, and if the woman chooses to proceed with the abortion, a treating physician shall sign and shall cause the patient to sign a written statement that the woman gave her informed consent freely and without coercion after the physician had discussed with her the indicators and con-traindicators, and risk factors, including any physical, psychological, or situational factors. All such executed statements shall be maintained as part of the patient’s medical file, subject to the confidentiality laws and rules of this state.
5. The director of the department of health and senior services shall disseminate a model form that physicians may use as the written statement required by this section, but any lack or unavailability of such a model form shall not affect the duties of the physician set forth in subsections 2 to 4 of this section.

The criminal penalty for violation of section 188.039 is contained in section 188.075, RSMo 2000. That section provides: “Any person who ... knowingly performs or aids in the performance of any abortion or knowingly fails to perform any action required by sections 188.010 to 188.085 shall be guilty of a class A misdemeanor.... ” Section 188.065, RSMo 2000, provides an additional civil penalty. It provides, in relevant part: “Any practitioner ... or other health personnel who shall willfully and knowingly do or assist any action made unlawful by sections 188.010 to 188.085 shall be subject to having his license, application for license, or authority to practice ... in the state of Missouri rejected or revoked.... ” Sec. 188.065 (emphasis added).

III. Legal Standard

“Statutes are presumed to be constitutional. Accordingly, the burden to prove a statute unconstitutional rests upon the party bringing the challenge. This Court will not invalidate a statute unless it clearly and undoubtedly contravenes the constitution and plainly and palpably affronts fundamental law embodied in the constitution.” Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000) (citations omitted). This Court will “resolve all doubt in favor of the act’s validity” and may “make every reasonable intendment to sustain the constitutionality of the statute.” Westin Crown Plaza Hotel v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). “We do not ... address the constitutionality of statutes in isolation. Instead, we construe the whole statute and we do so in light of a strong presumption of a statute’s validity.” State v. Shaw, 847 S.W.2d 768, 776 (Mo. banc 1993) (citations omitted). If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted. See Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993).

IV. Vagueness

Planned Parenthood argues that section 188.039 is unconstitutionally vague. Planned Parenthood focuses particularly upon the requirement that, 24 hours prior to any abortion, the physician must discuss, and document, with the patient “the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure.... ” Planned Parenthood complains that because the terms “indicators,” “contraindicators,” “risk factors,” and “situational factors” are undefined, a physician cannot know what is required to avoid criminal liability.

A.

“A statute is unconstitutionally vague if it does not give a person of ordinary intelligence sufficient warning as to the prohibited behavior. The vagueness doctrine is designed to help protect against arbitrary and discriminatory application of laws.” State v. Self, 155 S.W.3d 756, 760 (Mo. banc 2005) (citations omitted). “The test for vagueness is whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” State v. Brown, 140 S.W.3d 51, 54 (Mo. banc 2004) (citations omitted). “The constitution does not ... require the legislature to adhere to impossible standards of specificity.” State v. Shaw, 847 S.W.2d 768, 774-75 (Mo. banc 1993) (citations omitted). “If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty.” State v. Beine, 162 S.W.3d 483, 491 (Mo. banc 2005).

B.

Subsection 5 of the statute is drafted to provide the physician a safe harbor and guidance regarding what must be discussed and documented with the patient at the conference 24 hours prior to the contemplated abortion. The subsection requires the department of health and senior services to disseminate a model form that the physician “may use.”

Subsection 5 is of significance in two respects. First, the physician is not required to use the model form. Second, the physician is required to comply with the statute regardless of whether the department of health and senior services disseminates the form. In this way, the statute recognizes the need of the physician to exercise his or her professional judgment regarding the “indicators and contraindica-tors, and risk factors” particular to the patient’s medical history and medical condition regardless of any model form.

Although the model form may insulate the physician from criminal liability under the statute, the physician still must fulfill his or her professional duties to the patient to obtain her informed consent prior to the initiation of any medical procedure. This is a duty that has been recognized under the law for almost 100 years. See Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906). Relying on the Pratt case, Mr. Justice Cardozo, writing for the New York Court of Appeals, first described the rule as follows:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.

Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914). The doctrine developed as a corollary of the law of battery, wherein a touching of the patient’s body without consent constitutes a battery, even if the intended contact is to benefit rather than harm the patient. 1 Steven E. Pegalis, American Law of Medical Malpractice § 4.1 (3d ed.2005).

The modern trend in informed consent cases is to treat a failure to disclose collateral risks of a medical or surgical procedure as a negligent breach of the physician’s duty to his patient. Id. Missouri was one of the first jurisdictions to recognize a duty to obtain informed consent under a negligence theory. Mitchell v. Robinson, 334 S.W.2d 11, 19 (Mo.1960). In Mitchell, this Court held that “doctors owed their patient in possession of his faculties the duty to inform him generally of the possible serious collateral hazards .... ” Id. The negligence theory of informed consent has found growing acceptance in many jurisdictions and may properly be characterized as the modern view. Pegalis, § 4.1, at 292.

Section 188.039 imposes no duty regarding the extent of consultation between a physician and a patient seeking an abortion additional to that already required by common law, a duty that has been recognized under the law for almost 100 years and has been firmly established in Missouri for 45 years.

C.

Missouri law generally requires a mental state as an element to any crime.

A culpable mental state will be imputed to each statutory element, unless its imputation would be inconsistent with the purpose of the statute or ‘lead to an absurd or unjust result.’ Sec. 562.026.2. Legislative intent not to require a culpable mental state for each element of the crime must be clearly apparent before a particular statute will be construed not to require proof of such culpability.

State v. Self, 155 S.W.3d 756, 762 (Mo. banc 2005). Section 188.075 makes criminal a violation of the requirements of 188.039 only if the health care provider “knowingly ” fails to comply. Section 188.065 provides that a health care provider’s license may be subject to discipline only if he or she “willfully and knowingly ” violates section 188.039.

At oral argument, the parties agreed that the “knowing” mental requirement of sections 188.039 and 188.065 should be read in conjunction with the requirements of section 188.039 so that the physician is obligated to discuss with the patient only those “indicators and contraindicators, and risk factors” known to the physician in the exercise of his or her best medical judgement. Counsel for Planned Parenthood stated that “the only way to render the act less broad is for the court to read in limitations allowing physicians to exercise their best medical judgment or their good faith medical judgment....” Counsel for the attorney general was asked: “In your reading, does the scienter then incorporate best medical judgment?,” She responded: “I think it is absolutely implicit.” She later stated: “The scienter requirement of ‘knowingly’ applies to each element of the statute.... They have to know that this is a risk factor that would affect this woman, and if they, and if the doctor doesn’t believe it’s relevant in this case, to this particular woman, to this particular woman’s medical condition, then they don’t have to counsel on that.” The counsel for the circuit attorney stated: “The doctor has to know that this is a risk factor and the doctor has to know that it was not discussed .... ”

D.

The statute is not vague because, aside from the 24-hour waiting requirement, subsections 2, 3, and 4 of section 188.039 place no further duty upon Missouri physicians than was already imposed at common law. This statute merely codi-fíes the physician’s duty to obtain informed consent from a patient prior to an abortion and creates criminal or disciplinary liability if the physician knowingly fails to fulfill that duty. In particular, a physician’s duty to warn of “psychological” or “situational” risk factors cannot extend beyond the physician’s actual expertise. For purposes of criminal or license liability under this statute, a physician has a duty to warn about only those factors that he or she knows may affect the patient’s medical condition.

There is no meaningful difference between the clinical and medical judgment language utilized in section 188.039 and the traditional duty of a physician “to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession.” M.A.I. 11.06 (1990). The scienter requirement does differ, however. That is, if the physician negligently fails to obtain informed consent he or she may be civilly liable for negligence. By contrast, no criminal or disciplinary action can result unless the physician knowingly dispenses with good faith clinical judgment when consulting and obtaining a patient’s informed consent to an abortion or unless the physician knowingly performs an abortion in contravention of the requirements of section 188.039. The statute’s “knowingly” requirement allows for criminal liability or license discipline only for risks the individual physician knew he or she should have discussed with the patient, but did not. The statute is not void for vagueness. Specifically, if a physician provides the disclosure required by the statute in accordance with the physician’s “good faith clinical judgment” and documents the disclosure in accordance with subsections 4 and 5 of section 188.039, it may well preclude prosecution of the physician on the theory that the disclosure was not sufficient.

V. Constitutionality of 24-hour waiting period

Planned Parenthood also argues that the 24-hour waiting provision violates the Missouri Constitution. The Supreme Court of the United States held in Planned Parenthood v. Casey, that a 24-hour waiting period does not violate the federal constitution. 505 U.S. 833, 887, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). That opinion stated:

[W]e are not convinced that the 24-hour waiting period constitutes an undue burden .... [T]he right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.

Despite Casey, Planned Parenthood argues that the Missouri constitution should be construed more broadly than the United States constitution.

The federal due process clause states, in part: “[N]or shall any State deprive any person of life, liberty, or property, -without due process of law — ” U.S. Const, amend. XIV, sec. 1. The Missouri constitution contains two related clauses. Missouri’s due process clause states: “That no person shall be deprived of life, liberty or property without due process of law.” Mo. Const, art. I, sec. 10.

Article I, section 2 of the Missouri constitution also states:

That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

There is no reason, within the context of this ease, to construe this language from the Missouri constitution more broadly than the language used in the United States constitution. See State v. Walsh, 713 S.W.2d 508, 513 (Mo. banc 1986); see generally State ex rel. Danforth v. Cason, 507 S.W.2d 405, 408-09 (Mo. banc 1973).

VI. Conclusion

The judgment of the trial court is affirmed.

All concur.

      . The state acknowledges that the statements maintained as part of the patient's medical file are subject to the physician/patient privilege.